Media defence lawyers and others hoping for a radical overhaul of libel law are likely to be disappointed by Lord Lester’s defamation bill, but not bitterly. Speaking at the Libel Reform campaign‘s launch of his proposed legislation this week, Lester said: “I wanted a bill that is a fair balance between the right of free speech on the one hand and the right to a good reputation on the other.” No one is going to quarrel with that.
The bill has much to offer the media defendant. Among other things, the introduction of a single publication rule and the widening of the categories of information to which statutory privilege applies are not to be sniffed at. If the bill becomes law, reports of academic conferences will be protected and claimants will no longer be able rely on a case decided more than 150 years ago (dear old Duke of Brunswick) to bring proceedings when stories are downloaded from web archives years after first publication.
The bill is less than revolutionary in relation to other libel irritants. It does not, for example, reverse the burden of proof – a bugbear for defendants, especially when a claimant is in the best position to say precisely what is true and what is false about defamatory statements. Instead, said Lester, the bill establishes some new hurdles for the claimant, such as the need to establish serious damage to reputation. Out goes the presumption of the right to a jury trial but, as Lester points out, this is not considered to be a problem in privacy actions, which are tried by a judge alone.
In several places, the bill clarifies existing law to make it more user-friendly, Lester told the audience of journalists, NGOs, academics, bloggers and (several) lawyers. According to one of those present, this has led Lord Hoffmann to describe the bill as “largely a consolidation effort”. In response to the charge of lack of radicalism, Lester said the important thing was to get changes through parliament. “Razors are made to cut and bills are made to pass,” he said. “This is a bill made to pass.” He would not be drawn on Hoffmann’s alleged remarks. “So far as Lord Hoffmann is concerned the best thing I can say is nothing at all,” he said.
The proposed legislation makes the defences of fair comment and Reynolds privilege (styled, more accurately, “honest opinion” and “responsible publication”) more accessible, but arguably less flexible. It lists, as Lord Nicholls did in Reynolds v Times Newspapers Ltd (1999), factors to be taken into account by the court when deciding whether a defendant has acted responsibly, but as several cases in the lower courts have shown, judges may be encouraged to view these as tripwires for defendants. And the bill makes no reference to the need for the courts to give weight to judgments made by editorial staff at the time of publication, which was so helpfully included in the House of Lords’ Jameel judgment.
The extent to which the media has complied with codes of conducts, such as the Press Complaints Commission’s, is stated in the bill as one of the factors the court should consider for a responsible publication defence. But bloggers and NGOs – who are also involved in investigative reporting – don’t have editorial codes of conduct.
Why was the reference to codes of conduct included at all? Lester’s views about the special place journalists occupy in a society awash with information risks alienating bloggers and others. “I believe the press are a proper profession, they should be regarded as a proper profession and should behave as a proper profession,” he said. “They need to show they have not acted irresponsibly in the way they have gone about newsgathering and decision-making.”
The problem with elevating journalists in this way and introducing legislation that refers to their codes of conduct is that it leaves hanging the question of whether bloggers and NGOs would be able to avail themselves of such a defence. It leads to a bigger question: is this a bill for everybody or is it aimed at traditional media?
• The defamation bill, which is backed by Index on Censorship, English PEN and Sense About Science, will have its second reading in the House of Lords on 9 July.
Siobhain Butterworth is a lawyer. She was formerly the Guardian readers’ editor and the director of editorial legal services at Guardian News & Media. This article originally appeared in the Guardian and is reproduced with permission and thanks.