The Government’s draft Defamation Bill will be published today by the Ministry of Justice. This is in accordance with the Ministry of Justice’s Business Plan published on 8 November 2011. The timetable laid down had the “development” stage for draft Defamation Bill, ending in March 2011 with a consultation period on the draft bill ending in June 2011 and then a period of “amendment” in the light of the consultation response of 9 months, ending in April 2012 – with the bill being introduced in Parliament in May 2012. Although the Bill has not yet been published, the spinning has already started. The contents of the Government briefings to journalists can be inferred from the newspaper reports this morning.
The Independent tells us “Defamation Bill is intended to kill off libel tourism” suggesting that the Bill will contain the followin “a new defence of “honest opinion” and “new rules to stop celebrities and businessmen from bringing libel cases in Britain unless they can prove that the publication caused them “substantial harm” in the country“.
According to the “Daily Telegraph” “Celebrities will have to show harm to sue for libel“. This report tells us that there will be “a new defence of “honest opinion” to replace the overly complex defence of fair comment”. It also tells us that the bill will “crack down on so-called “libel tourism”, where British courts are used in law suits that have no bearing on the UK”. Two other proposals are mentioned: a requirement that companies demonstrate they have suffered loss and the cutting out of “trivial” law suits.
The “Times” article is headed “New bill proposes to end libel tourism” and tells us that the courts will have powers to strike out all trivial claims and that the law on publication on the internet will be overhauled and updated and costly trial by jury will be “all but abolished”. The Head of the Legal Department at the “Times”, Pia Sarma, has a piece entitled “The draft defamation Bill offers an opportunity that must not be wasted“.
We will comment on these proposals when the draft Defamation Bill is published later today. Many of them appear to derive from Lord Lester’s 2010 Defamation Bill – which has already been the subject of extensive discussion and analysis on this blog – see, in particular, our overview of its contents and the Professor Mullis and Dr Scott’s post “Lord Lester’s Defamation Bill: a distorted view of the public interest?“. We have previously suggested that the Lester Bill faces two fundamental problems: “It is likely to lead to more, not less, litigation and it is in parts seriously unbalanced. It will not save costs or shorten libel litigation”. We hope that the new bill addresses these problems.
Finally, bearing in mind the headlines this morning – and we suspect tomorrow – about “libel tourism” it is perhaps worth recalling some facts. The report of the Libel Working Group reported that in 2009 were 219 defamation cases issued in the High Court. Of those cases 34 or 8% were identified as having a “foreign connection” (based on the addresses of the parties given on the claim form). In that year there were no “pure libel tourism” cases – that is claims brought by foreign claimants against foreign defendants relying on the fortuitous publication of a few copies in England or on the internet.
The report identified 13 cases which involved claims by claimants located outside the EU against English based defendants (5% of the total number). It difficult to see how a foreigner who sues an English publisher can be described as a “libel tourist”. It seems likely that even adopting the (extreme) Index on Censorship/English PEN proposal that “at least 10 per cent of the total number of copies of the publication distributed have been circulated here” that all these actions would be permitted.
There were 5 cases in which the claimant was in England and at least one defendant was outside. Only 3 of these cases (or 1% of the total) involved claims by English claimants against foreign defendants. The position does not appear to have changed in 2010.
The only recent “libel tourism” case discussed in the press is that brought by Ukrainian businessman Dimitry Firtash against the Kyiv Post – which was dismissed by the court at the first hurdle on 24 February 2011 – because there was no substantial connection with the jurisdiction. In other words, the current rules worked to prevent a case of unjustified “libel tourism”. If the Defamation Bill is aimed “killing off libel tourism” it is going to be resounding success – as the creature seems to be dead even before publication.