In an interesting piece yesterday on the Guardian’s “Comment is free” Blog entitled “Lawyers must get behind libel reform”, the Director of English PEN, Jonathan Heawood, discusses the recent contributions to the libel reform debate of Professor Gavin Phillipson (in the Guardian and on this blog yesterday) and Professor Alastair Mullis and Dr Andrew Scott (“Something Rotten in the State of English Libel Law? A Rejoinder to the Clamour of Reform of Defamation“). Putting aside the predictable quips about “dons” and “getting down from ivory towers” (less donnish figures than the three authors would be very difficult to imagine) Mr Heawood makes some serious points which we would like to engage with.
First, he tries to identify “common ground” between these authors and the Campaign for Libel Reform. He mentions four points which he says are “now accepted by the Government” – a single publication rule, a statutory public interest defence, fast-track litigation and procedural changes to reduce the threat of libel tourism. Well, up to a point. The proposals fall a long way short of the Index on Censorship/English PEN demands – particularly in relation to “libel tourism” where the Libel Working Party, in effect found no evidence of “threat” (see our post here) Professor Phillipson welcomes the proposed changes in these four areas – although he does not subscribe to the “threat of libel tourism” theory. Professor Mullis and Dr Scott do not agree with any of the proposals made. There is a real debate on these issues.
Second, he accuses Professor Mullis and Dr Scott of “equivocation” saying that
“down in the real world, where scientists, NGOs, authors, publishers and even (whisper it) journalists are suffering from the defects of English libel law, the case for reform is slightly more urgent”
Later in the article he claims that there is a “growing use of libel law to silence publications by writers such as Simon Singh, NGOs such as Global Witness, or scientists such as the cardiologist Peter Wilmshurst“. Two points of clarification. First, as far as we are aware, there is no evidence that libel cases of the kind complained about are on the increase – there will always be libel cases which are misconceived and which involve claimants who many people disapprove of. Such cases should fail in the courts – but there is no reform that can prevent them being brought. Second, as far as we know the (unsuccessful) claim against Global Witness was for breach of confidence – nothing to do with libel. More generally, one of the points that comes out of the Mullis/Scott paper is that reform should be based on evidence and proper analysis. It cannot be right to try and generalise from a few perceived “bad” cases. What is needed is an approach based on evidence. There is a lot of assertion about “chilling effect” but, as far as we know, no hard evidence.
Third, Mr Heawood deals with conditional fee agreements
“Conditional fee agreements rely on lawyers who are willing to accept some risk on behalf of their clients. With success fees of 100%, the lawyers were simply shifting this risk onto the losing party, with the result that libel trials have become a rarity. Faced with potentially ruinous costs, almost all defendants are forced to settle out of court. This allows publications in the public interest to be suppressed”.
This is not right. The idea of CFAs was to be “costs neutral” for lawyers who used them – so that winning and losing cases balanced each other out. Yes, the risk was shifted to the losing party (whether claimant or defendant) – that was believed to be the price of access to justice. Perhaps the risk could be spread differently but the effective abolition of CFAs (without any balancing increase in other forms of legal support) involves a serious interference with access to justice without putting anything in its place. As is sometimes forgotten by Libel Reform campaigners, defendants such as Simon Singh and Henrik Thomsen have also made use of CFAs. Once again, there is no actual evidence of CFAs being used to suppress publications in the public interest – the anecdotal evidence suggests that they have made the media more careful about accuracy – which is itself obviously in the public interest. CFAs are not ideal and 100% success fees are too high in most cases but what is needed is a careful balanced solution – not the proposed “cut to 10% solution”.
Finally, Mr Heawood goes on to raise the question as to whether these critics of libel reform might have other motives, asking
“what is the relationship between these academic critics and the representatives of the legal profession who are becoming increasingly agitated about forthcoming changes to their business model?” later on he says
“No one in this campaign is interested in a defamer’s charter, which would give the media carte blanche to publish untrue allegations. The vast majority of supporters of this campaign have no commercial interest in its outcome. The same could not be said for many of the lawyers now rushing to attack the process of change”.
The point is clear: critics of libel reform are lawyers “agitated about forthcoming changes to their business model” who have a “commercial interest in the outcome“. This is as unhelpful as the description which we have heard of the Libel Reform Campaign as being the media corporations’ “useful idiots”. Rather than attacking motives it is a good idea to look at evidence and argument.
The great advantage of libel lawyers – most of whom act for both claimants and the media – is that they actually know how the system works in practice. In practice, “libel tourism” and “burden of proof” are not real issues. Costs are an important and difficult problem – in all forms of litigation. They do not just deter the media from defending cases, they also deter claimants from bringing them. Other aspects of the law of libel are anachronistic and in need of reform but there is a careful balance to be preserved. What is needed is a productive dialogue between “reformers” and practitioners – involving academics, journalists and others. One of the reasons why INFORRM has been established is to encourage such dialogue.