In recent months a sustained campaign by the media, NGOs, foreign commentators and some scientists has seemingly convinced many that English law is uniquely draconian, a massive threat to free speech and scientific debate, that it has no proper public interest defence, doesn’t protect expressions of opinion and that, as a result, London is infested with libel tourists.
While it’s good that these issues should be debated, much reporting has been either plain wrong or so heavily one-sided as to be misleading (for serious detail read the main report in the campaign, and the rejoinder, by two senior academics, available here). I was the law professor on the government’s working group on libel reform, which has just reported – and has not endorsed the wilder pro-media proposals floating about, instead coming up with some modest but good options for reform, already covered here. But here’s some crucial points that might help inform and balance this important debate.
Robust comment and opinion is already protected. A few days ago in the Guardian a comedian who hosted the campaigning gig with the catchy slogan, “English libel law is a dangerous joke”, said: it’s not just scientists facing the threat of legal action, it’s investigative journalists, political bloggers, pretty much anyone who publishes their opinion, whether it’s backed up by empirical evidence or not.
This is so categorically wrong, it’s a joke – and a dangerous one, in spreading rampant misinformation. Under the defence of fair comment, anyone can publish an opinion, however exaggerated, unfair or prejudiced, provided that it is honestly held and is based on true facts. Libel law only captures false statements of fact.
We already have a public interest defence. It’s called Reynolds: journalists and others have a defence even for defamatory factual allegations that turn out to be false provided they can show that (a) the information published is on a matter of legitimate public concern (like an allegation of wrongdoing in public office) and (b) the journalist took reasonable care in researching and verifying the story. Does that sound fair enough? It’s good journalistic practice in any event. The law could be clearer, but it’s there.
Many have called for the Sullivan defence in US law to be introduced here. In the US, if you’re deemed a “public figure” – a very broad category — the media pretty much has carte blanche to publish what it wants about you: public figures can’t sue for libel unless they can show that the newspaper was deliberately or recklessly telling lies – nearly always impossible. The idea of removing from the British media a requirement that, before defaming such people they should check their facts, strikes me as a pretty frightening prospect; moreover, there sometimes seems to be an assumption that the US approach is the norm in democracies. It’s not. It’s the exception. Which leads on neatly to the fact that English libel law is not out of step with most other countries. English libel law strikes broadly the same balance between reputation and speech rights as the law in Australia, Canada and South Africa; in fact Canadian law only last year introduced a defence of public interest based on Reynolds. The English law approach is the norm – in fact it’s more liberal than in some European countries, such as Austria or France.
Reversing the burden of proof on falsity has been another of the key demands of campaigners. I’m pleased to say it didn’t come anywhere near getting into the report. Just think about it for a moment: the law would then presume that any allegations about you, however damaging, were true, just because they had been published.
I don’t think, frankly, that our press deserve that level of trust. And just imagine it in any other context, at work, for instance: say a disgruntled colleague sends an email round to everyone accusing you of stealing cash from his wallet. Wouldn’t you expect that your employer would demand some evidence for this claim and that there would be some sanction for making false allegations if none was forthcoming? Would you be happy with the idea that your employer and colleague could assume it to be true unless you could prove otherwise? And just how would you go about proving the allegation false? Reversing the burden of proof would mean that at a stroke, every citizen of this country would lose their right to their reputation; would have to restore it, if attacked, by proof in court. Do we really want that? Remember, in effect there’s no legal aid for libel.
What does need changing? The report sensibly suggests scrapping the multiple publication rule – which means that every fresh download of the same piece creates a fresh cause of action, even if it’s years after it’s been written, thus leaving the threat of legal action hanging over online archives indefinitely. (Note that the reform won’t exempt someone else who publishes the same allegations, by the way). It wants to make litigation quicker and therefore cheaper, and to tighten up the rules designed to prevent libel tourism – all good stuff. And another good suggestion is to put the public interest defence in a statute in much clearer and simpler terms; and sort out the confusion the courts have got into between reputation and the right to privacy – a development that really is tipping the balance further away from free speech and needs to be corrected.
Of course libel litigation can be frighteningly costly and time-consuming. But you deal with that by reforming the rules on costs and procedures – not by legally depriving all of us of our right to our good name.
Gavin Phillipson is Professor of Law at Durham University.