“Reframing Libel – A Practitioner’s Perspective” Part 1 – Hugh Tomlinson QC

This is Part 1 of a paper given to the City University Forum on “Re-Framing Libel” on 4 November 2010.  Part 2 will be published next week.

At the 2010 General Election the three main political parties included a manifesto commitment to libel reform.  The Conservative Manifesto tells us,

“We will review and reform libel laws to protect freedom of speech, reduce costs and discourage libel tourism” (Conservative Party Manifesto, p. 90).

The Labour Party Manifesto says,

“To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely” (The Labour Party Manifesto 2010, p.63).

Finally, the Liberal Democrats promised to:

“Protect free speech, investigative journalism and academic peer reviewed publishing through reform of the English and Welsh libel laws – including by requiring corporations to show damage and prove malice or recklessness, and by providing a robust responsible journalism defence” (The Liberal Democrat Manifesto, 2010, p.93).

When faced with such a clear cross-party political consensus, the practitioner must tread carefully.  Particular care is required because one of the underlying concerns of libel reformers is that the law has been developed in such a way that serves the interests of lawyers at the expense of clients and the public.  The wise practitioner might well take the view that this is a matter best left to politicians and reformers and simply await the outcome.  Although cynicism is, of course, rare among lawyers, some might even welcome reform on the basis that the law of unintended consequences means that it is likely to generate more, rather than less, litigation.

While caution is appropriate I do not think that practitioners can or should avoid engagement with the libel reform debate.  There are at least two reasons for this.  First, contrary to the views of the cynic, the practitioner is not there to serve his or her own interests but the interests of clients.  It is in the client’s interest – whether as a claimant or a defendant – for libel proceedings to be as quick, cheap and efficient as is consistent with justice and fairness.  Anything which might help achieve those aims deserves proper and careful consideration.  Second, while libel practitioners have no special expertise in social policy, we do know how things work in practice – what goes right and what goes wrong in libel litigation.  This is an important debate and should be informed and geared to practical outcomes.

The great advantage of libel practitioners – many of whom act for both claimants and defendants – is that they actually know what litigants want out of the system in practice.  Our clients tell us this every day.  There is sometimes a tendency among advocates of libel reform to attack practitioner critics as being lawyers who are “agitated about forthcoming changes to their business model” who have a “commercial interest in the outcome”.  This is as unhelpful as the description of the Libel Reform Campaign as being the media corporations’ “human shield”.  It is also dangerous because a reform which does not factor in the practicalities is a reform which is likely to fail to achieve its objectives.

Some General Thoughts about Libel

It seems to me that a useful starting point is to ask the question: what outcomes should libel law be producing?  What social function do we want our law of libel to perform?  The answer to this question can then inform the discussion of whether and how libel law should be re-framed.

There are some fundamentalists who take the view that the law of libel is not needed at all: that we can rely on the free market of ideas to distinguish truth from falsity.  This contention does not bear serious examination: the free market is as dysfunctional in the realm of ideas as it is the realm of banking. Those with the greatest market power – the rich and powerful – are the ones whose ideas win out.  In the absence of regulation – through courts – false ideas backed by the powerful gain the ascendancy.  Every modern system of law has a law of libel and England and Wales cannot be an exception.

At the basis of the law of libel is the notion that there must be a legal mechanism for dealing with false statements which adversely impact on a person’s reputation.  This is closely linked to the fundamental value of human dignity.  As the South African Constitutional Court has put it

“The value of human dignity … is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings in our society.  It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements” (Khumalo v Holomisa [2002] ZACC 12 [27] )

There is social value in ensuring that false statements which adversely impact on a person’s reputation are corrected.  Within certain limits concerning private information, we all benefit from knowing the truth about other members of society.   If a politician or a businessman is accused of being a crook we need to know whether that is true.  The law of libel provides a mechanism for an “independent determination” of that issue.

This brings me to the answer to the purpose of the law of libel: what outcomes should it be producing?  It seems to me that the law of libel should provide a mechanism whereby the courts can determine the truth or falsity of allegations about individuals.   What the law of libel needs to provide is a quick and efficient way of doing this at a reasonable cost.

This approach accords, I think, with the experience of most practitioners when advising clients who want to bring libel claims.  What clients want is not huge damages – in practice, these are no longer available – but vindication.  Most claimants would like a quick apology and a correction. It is also consistent with the views of defendants – ideally, they would prefer not to be sued for libel at all but, if they are, they would like the cases to be resolved in a quick, efficient and cost effective way. Bad claims should be quickly dismissed and bad defences swiftly overcome.  The procedures should be fair, comprehensible and transparent.  These are all areas in which the present English law of libel falls down.

From the perspective of the claimant, the law of libel presently provides a very imperfect mechanism for dealing with their concerns.  It cannot, in general, provide a declaration of falsity or order a correction or apology. The only remedies which are traditionally available are injunctions and damages.  The former prevents repetition of the libel, the latter provides vindication and compensation for damage to reputation and hurt feelings.  But damages are obviously a blunt instrument. There are strong arguments in favour of “re-framing” in this area – arguments which have attracted little attention from libel reform campaigners

There is, of course, another important social value at stake in the law of libel: freedom of expression.   The law should not restrict the expression of opinion or the making of comment – certainly not in relation to matters of public interest.  Furthermore, the law should not penalise everyone who makes false statements of fact which adversely affect others.  There are many situations in which such statements are made in accordance with a “legal, social or moral duty”.  Furthermore, it is generally recognised, that publishers of false statements who have acted responsibly in the public interest should not be penalised for what they write or say.

These kinds of considerations have, in more or less explicit form, informed the development of the common law of libel.  It provides defences for honest commentators, “duty” publishers and responsible publishers in the public interest.  It is argued by libel reformers that these defences are imperfect and provide insufficient protection for legitimate expression.

In short, it could be argued that there are four areas in which the law of libel might be said to need reframing: costs, procedures, remedies and defences. The last is the only area substantively addressed in Lord Lester’s Defamation Bill.  It is, it seems to me, the least pressing of the three.  I want to say something about them in reverse order.

Defences  

Lord Lester’s Defamation Bill sets out to clarify a number of the most important “common law” libel defences: responsible publication, honest opinion and truth.  Each is re-cast in statutory form.  In each case, the concern would be the same: that codification would introduce rigidity whilst at the same time generating uncertainty. This is an area which has been extensively discussed by a number of commentators, notably Professor Mullis and Dr Scott, and I will only provide a brief outline of the arguments here.

“Responsible Publication”

Codification of the defence of “responsible publication” is a particularly clear example of the problems generated.  The Libel Working Group acknowledged that the quest for certainty of application was illusory: the need for flexibility in reconciling competing public interests would always make that impossible. Each “responsible publication” case is different and it is impossible to produce an exhaustive list of criteria.

The Defamation Bill does not set out to provide any exhaustive definition. Clause 1(1) sets out the two familiar conditions: public interest and responsibility. As regards responsibility, the Court is directed in clause 1(3) to have regard “to all the circumstances of the case”. Clause 1(4) then states that “those circumstances may include (among other things)” some 6 of the 10 issues from Lord Nicholls’ classic list in Reynolds. Two of the missing four are generally thought to be of considerable importance in most cases: the source of the information (whether the source had an axe to grind) and publication of the gist of the claimant’s riposte.   As Desmond Browne QC said when discussing this provision, most would share Lord Hoffmann’s puzzlement as to what this clause is trying to achieve. Is he not right when he says that after Jameel, which was generally welcomed by the press, “there is a case for leaving well alone”? This clause does not set out to alter the substance of the law in this area and probably does not do so – although doubtless litigation will be required to make this clear.

Scientists and bloggers

There are other “defences” which might be considered – although they are not mentioned in Lord Lester’s Bill.  I have in mind two categories of writers who are particularly concerned about the law of libel: scientists and bloggers.  It seems to me that in both cases the considerations may be different from those that apply to “mainstream media” publishers.   There are good arguments in favour of special defences in both cases.

The public utility of science writing is obvious and scientists should be able to analyse and comment on the research of others without the need for libel lawyers.  There is a strong argument for a qualified privilege for those writing in peer-reviewed scientific journals.  This was proposed by the Faulks Committee as long ago as 1975.  Clause 11(2) of the Draft Defamation Bill included in its Report provided as follows:

“Publication in a technical or scientific journal approved by and registered with the Secretary of State of an article of a technical or scientific nature shall be protected by qualified privilege”.

This recommendation was not adopted, although some years later in Vassiliev v Frank Cass & Co Ltd ([2003] EWHC 1428 (QB)) Eady J ruled that the publication at issue – an article in a journal called Intelligence and National Security, “a specialist publication with a specialist readership who subscribe to it”, with about 146 subscribers in the UK – attracted qualified privilege at common law because it consisted of a “specialist subject matter” in which publisher and readers shared a common interest.  Nevertheless, there is a strong argument for a revival of the Faulks Committee proposal – perhaps without the “registration” requirement to protect scientific writing.  This would mean that someone writing in such a journal would have a complete defence to a libel action until they could be shown to have acted maliciously.

The second possible area for the development of a new defence relates to bloggers and others who produce material on the internet, often with fairly limited readerships, but who face the possibility of ruinously expensive libel actions.  As far as I am aware, there has been very little research in this area and it is difficult to know how serious a practical problem there is.  Nevertheless, there are obvious anomalies about treating non-commercial bloggers and large media corporations in the same way for the purposes of a “public interest defence”.

There are a number of possible ways of dealing with this issue.  One possibility would be to develop a “Code of Practice” for bloggers defining the standards of “responsible blogging” – which could be referred as a part of any “responsible publication” defence.  The approach would be very different to that which applies to the mainstream media and might involve speedy take down of dispute material. Another possibility might be to limit the available remedies (and costs) in claims against bloggers if the material was taken down within a reasonable time of notice being given that it was defamatory.  On the one hand, responsible bloggers should be protected against abusive legal action whilst, on the other, the law should not provide a “defamers charter”.  This seems to me an important area in which research and creative thinking is needed.