The review of the law of libel did not get a mention in the Queen’s Speech but the indefatigable Lib Dem peer Lord Lester of Herne Hill QC is this week presenting a draft private member’s Defamation Bill to the House of Lords with the strong support of the media.
He has written an article in “The Times” under the title “Libel must be rebalanced in the scales of justice” advocating the “replacement of our archaic law” with one that “gives strong protection to the freedom to share information”. The purpose of this Bill is said to be assist the Government in the “libel law review” which it has announced: it is said to help to “modernise the defences”.
Lord Lester describes the purpose of his Bill in a video on the “Times Website”
He makes the fair point that libel law has not been comprehensively considered by Parliament and that the “piecemeal reforms in the 1950s and 1990s that never addressed free speech and could not have anticipated a culture of online publication and debate“. A “review” of the law of libel is a sensible course of action in the context of the modernisation of the law in the light of human rights jurisprudence and modern technological developments.
The details of Lord Lester’s proposals have not yet been disclosed and will make interesting reading. Three specific measures have been mentioned.
First, there is the suggestion that there should be a “simpler statutory public interest defence”. Anyone who has tried to apply the present version of the Reynolds defence can sympathise with this view. The problem is that there are obvious practical difficulties in formulating a public interest defence in a way which preserves a fair balance between reputation and expression. This was recognised by the last Government’s Working Group on Libel Reform (discussed in a post by one of its members Gavin Phillipson and by the Canadian Supreme Court when it sought to formulate a public interest defence last year (in Grant v. Torstar Corp., 2009 SCC 61). A public interest defence which could only be rebutted by proof of malice would not strike a fair balance (and, as the position in the United States shows, would not make reduce litigation or make it cheaper).
Second, there appears to be a suggestion that a “single publication rule” should be introduced. This is a sensible measure but, once again, there are practical issues to be resolved. If a defamatory allegation is first made in a small circulation magazine and is subsequently repeated on a very popular website then it cannot be sensible that a claim can only be made in respect of the “first publication”.
Third, it is said that the bill will make the normal method of trial by judge alone – reversing the “constitutional right” to trial by jury originally deriving from Fox’s Libel Act of 1792. Once again, there is a lot to be said for this proposal – but there are also important arguments to the contrary which need to be considered. In a post earlier this week we mentioned a speech by Australian Federal Court judge Steven Rares on the subject of “The Jury in Defamation Trials” he expressed strong views in favour of the continuation of the role of the jury – as the vital involvement of the “public” in libel trials. Similar views have been recently expressed by another very experienced Australian judge, David Levine in a lecture entitled “Reputation, Celebrity, Money and Juries – a 21st Century Reconsideration”.
We await with interest the detailed provisions of the Lester Bill dealing with these issues in a fair and balanced way. We suspect that the the complexities are such that they cannot be satisfactorily resolved by a small group of like minded “experts” but require dispassionate examination by the Law Commission or a body of similar stature and independence.
[Update] Although libel reform is not mentioned in the Queen’s Speech it does appear on the Number10.gov.uk website in the discussion of the “Freedom (Great Repeal) Bill where under “The main elements of the bill” is included
- The reform of the libel laws to protect freedom of speech.
The website goes on to say that “The legislation involved is subject to further review” - referring to the Deputy Prime Minister’s recent speech where he states that the government will “review libel laws so we can better protect freedom of speech”.