This is the third and final part of an edited extract from the Response of the General Council of the Bar’s Law Reform Committee to the Joint Committee on the Draft Defamation Bill. The full response can be found here.
Defamation via the Internet
All we would say in regard to this very complicated topic is that if someone wishes to defame someone else (or invade their privacy) they ought not to be able to do so anonymously. Natural justice demands that if someone wishes to make an accusation, he ought to identify himself. Properly understood, freedom of speech does not encompass the right to make damaging accusations without identifying oneself. Provision should be made for a simple way of identifying the primary author of the words in return for such immunity from liability as is conferred on a secondary publisher such as an ISP.
Even if a person does not use a proper name when publishing a defamatory statement, that name ought to be readily available to the subject of an allegation upon enquiry so that he can decide what action to take. A claimant ought not to be forced to engage in the expensive Norwich Pharmacal process in order to find who has chosen to make an allegation against him. Upon identification, the defendant will be in the same position as any other named defendant, he will be protected by the law unless he does not have a defence.
It is difficult to have sympathy for the hugely wealthy corporations such as Google, Facebook and Twitter who complain about the problem of being sued for defamation, if they do not take proper or any steps to identify persons who register with them and use them as platforms for anonymously attacking others (and sometimes to breach privacy and fatally undermine court orders).
We could not express our concern better than the journalist Martin Kettle in his article To argue for controls over the internet may not be cool, but it’s right, published by the The Guardian on 26 May 2011:
“To argue for controls over the internet may not be cool. But the internet was surely not meant to be this way. The geniuses who created the modern web and made it so exciting did not do so in order to create the largest pornography bombardment in human history, to have a global email system weighed down by spam, to encourage hostile hacking into national security secrets, to embolden sectarian bigots to violent threats or mere gossipers to say ill-considered things under the protection of pseudonymity. Of course governments must not be heavy-handed in the way they undo these things. Of course the industry needs to be fostered not fettered. But all revolutions generate unintended consequences that need to be put right.”
Good law is of little or no use if the average person cannot afford to deploy it.
We support the Bar Council’s submissions to the Ministry of Justice that the current proposal to do away with recoverable success fees and recoverable ATE insurance premiums will lead to unjustifiable unfairness. The idea that success fees and ATE premiums could be paid from a claimant’s damages is divorced from reality. Furthermore, the MoJ’s proposal takes no account of the fact that defendants are often defended in defamation actions with the help of CFAs; a successful defendant will have no damages from which to pay for a success fee and ATE insurance premium. A notable case where the defendant was represented on a CFA was that of Simon Singh.
Prior to the introduction of CFAs with recoverable success fees and recoverable ATE premiums, claimants could not realistically bring defamation claims, however meritorious, against newspapers because they could not afford the legal fees. Even a 10% chance of losing one’s house was too high to bear, even if the case was highly meritorious. Newspapers regularly and deliberately out-spent claimants in order to force them into submission. In Adam Raphael’s book My Learned Friends: An Insider’s View of the Jeffrey Archer Case and Other Notorious Libel Actions (written in 1989, prior to the introduction of CFAs) Justin Walford, a lawyer employed at that time by the Daily Express (and now with The Sun), conceded: “If a newspaper were honest I suspect they would admit to drawing actions out in the hope that a (claimant) runs up large legal bills, loses heart and settles.” As Mr Raphael concluded in regard to the pre-CFA era: “You have, in fact, to be not just very rich but also supremely confident to pursue a libel case to the bitter end.”
General/Aggravated damages in defamation claims are low. Whilst the theoretical cap for general damages is c.£215,000, the average settlement amount is c.£20,000. Non-monetary remedies are extremely important: injunctions and (as part of a settlement) apologies/retractions. The better the apology/retraction secured as part of a negotiated settlement, the lower the damages will be (because vindication will in large part be achieved by the apology/retraction). Special and/or exemplary damages are almost never awarded.
The availability of effective ATE cover (or a viable alternative) is vital in order to permit litigants to either bring or defend defamation claims. In particular, no claimant will be able to take on a newspaper without substantially reducing the risk of an adverse costs order wiping out his life savings (except ironically, the man of straw).
Damages are simply too low to make the system which the MoJ is seeking to implement workable; damages in defamation actions are too low to provide meaningful success fees and to pay for ATE insurance premiums. A 10% increase in general damages would not be a sufficient increase to make such a system workable or encourage practitioners to take on the unavoidable risks of such claims.
Claimants and defendants ought to have access to the same CFA scheme. A workable scheme will require (modest) success fees to be recouped from the losing party.
The Bar Council proposed to the MoJ a system of staged success fees. A low recoverable success fee of 10% – 25% would apply to proceedings which were concluded up to 35 days after the disclosure of documents. The success fee would then rise to 50% if the case was one of the very few which continued after the 35 day period. The 50% is crucial for a barrister to be willing to take on the risk of taking a claim to trial. The recoverable success fees could perhaps be reduced if some money could also be deducted from damages (but this would not assist a defendant).
If claimants or defendants had to face the mere chance of having to pay the costs of an opponent, they would not be able to bring/defend claims. In particular, the hand of newspaper defendants, ever ready to outspend a claimant as a non-merit based tactic for seeing off a claim, will be immeasurably strengthened.
The MoJ has ignored the Culture, Media and Select Committee’s proposals concerning CFA success fees, that 10% of a success fee ought to be recoverable from a losing party with the remainder paid by the client to his lawyer in a manner to be agreed privately between them (paragraph 307 of its report). For reasons already given, we do not believe that 10% is high enough where a matter has gone to trial but would otherwise support that Committee’s proposal. However, the success fee recoverability ought to be greater for a defendant because it will have no damages from which to pay that part of a success fee not met by the recoverable 10% portion. This would not be unreasonable given that in such a situation the defendant will have been compelled to defend himself; the claimant will have been a volunteer.
The Rehabilitation of Offenders Act 1974
The Bill’s failure to address the problems raised by the Rehabilitation of Offenders Act 1974 is an opportunity missed.
The Rehabilitation of Offenders Act 1974 introduced a system whereby convictions became spent after a certain period of time. After a conviction became spent, the convicted person would be under no obligation to reveal its existence to a potential employer and the conviction could only be mentioned in court proceedings if it were in the interests of justice to do so. The passing of the 1974 Act constituted recognition that after a period of time, persons with convictions ought to be permitted to “move on”. However, the 1974 Act dealt with the problem of third parties publishing details of spent convictions in a thoroughly unsatisfactory manner. Where a third party published the fact of a spent conviction, the person with the spent conviction could sue in defamation but would win only if he could prove that the publisher had acted maliciously in publishing the fact of the spent conviction (which will mean that the fact of the spent conviction was published with some irrelevant, spiteful or improper motive). However:
- malice will be almost impossible to prove in such a situation because, after all, the fact of the conviction is a true fact; and
- it will matter not to the convicted person whether the publisher is malicious or not. The publisher’s malice will have nothing to do with the convicted person’s (and society’s) interest in permitting him to be rehabilitated.
If there were an opportunity to change the law in this regard, we would suggest that a claimant ought to be given a remedy where the publisher knew or ought reasonably to have known that the conviction was spent, unless there was a greater public interest in publishing the relevant information than there was in maintaining the claimant’s right to be treated as a rehabilitated person.