Legal speakers at a libel reform debate at Queen Mary, University of London, were presented with this motion on Wednesday night: “This house believes that the English libel laws are unfit for purpose in the Twenty-First Century.” Despite the groundswell of support for the Libel Reform campaign – the impetus for the government’s and Lord Lester’s respective defamation bills – the four respondents all wished to speak against the motion.
As Professor Lorna Woods said in her introduction, the case for libel reform has been “very strongly and vociferously put” by the press; now was a chance to hear another side of the story.
Following a speedy history of English libel law from Gavin Sutter, lecturer in media law at Queen Mary, Jonathan Coad, partner at Lewis Silkin, Mark Lewis, solicitor advocate at Taylor Hampton; Professor Alastair Mullis, University of East Anglia; Hugh Tomlinson QC, Matrix Chambers, took turns to address what they perceived as the main issues.
Professor Alastair Mullis introduced his proposal, co-authored with Dr Andrew Scott, for a two stream system which would, they believe, give better access to justice for libel defendants and claimants. As Inforrm has previously reported, Mullis and Scott propose that the overwhelming majority of English libel cases should be considered by the County Court, the Tribunals Service, or an appropriate media regulatory body. Only very unusual cases would pass through the second stream and be heard before the High Court.
They have raised the question of whether a right to reputation could be protected by Article 8 of the Human Rights Act. Given that Strasbourg jurisprudence has allowed Article 8 to encompass a person’s physical and psychological integrity, it could be reasonable to contemplate a Convention right to reputation. In fact, said Mullis on Wednesday, recognising the psychological aspect under Article 8 was an “appropriate” and “necessary” development.
The libel bills also fail on Article 6 which protects access to justice, Mullis argued. He is concerned that there’s a danger of returning libel action to the preserve of wealthy claimants.
PCC is no alternative
Jonathan Coad, who acts for claimants in defamation actions, used his slot to criticise the Press Complaints Commission – and the Reynolds defence for responsible journalism. Dismissing the PCC’s “record of failure as breathtaking”, he said the regulator was still learning its way and had scarcely started. It did not provide an alternative to a libel action, he said.
The Reynolds Defence was unfit for purpose, said Coad, with no sensible or just basis. It was expensive to use, and slowed the process. “Terrifyingly,” the Reynolds principles were going into statute, Coad said – which is why he had opted to speak against the debate’s motion.
The product of lobbying by the press, Reynolds allowed defamatory allegations to remain uncorrected, he continued. In fact, he found the defence’s foundation to be “profoundly wrong”. He cited an example involving the Guardian: the newspaper had alleged that a British army officer was involved in abuses at Abu Ghraib. It wasn’t true, said Coad: he wasn’t actually there, or even in Iraq at the time. The Guardian used Reynolds defence in its correspondence to defend its position, Coad said. “What was the public interest, I ask you rhetorically, in that mistake not being corrected?” He also referred to the Flood v Times case, on its way to the Supreme Court.
In the claimant’s shoes
Next, solicitor advocate Mark Lewis drew on two experiences: representing libel defendant Dr Peter Wilmshurst, who until recently was fighting a case brought against him by NMT Medical – which recently went out of business. Secondly, Lewis’s own libel action against the Press Complaints Commission and its chair Baroness Buscombe, in which he was eventually paid damages. His action against the Metropolitan Police is ongoing. Lewis’s position had been altered by walking in the libel claimant’s shoes, he explained.
Being able to afford to pursue action was Lewis’ main concern (his own case was fought using a Conditional Fee Agreement) and while the law might need “tweaking”, he chose not to argue the case for reform. He disagreed with Ken Clarke’s proposals to overhaul CFAs; we’re in danger, he said, of getting back to inequality in arms.
Hugh Tomlinson QC took issue with the media’s presentation of London as the libel capital of the world. Libel law in the UK is not unique, in fact it’s rather “mainstream”. The EU country average for libel claims per year was 700; while the UK only had 285 last year. The Australian state of New South Wales alone – with a fraction of the UK’s population – had more, he said.
He disagreed with libel reform because “substantive law in general strikes the balance in more or less the right place“. Obviously there is room for improvement, he said, referring to the South African remedy of ordering an apology and the French system of enforcing publication of a summary of the judgment as possible additions.
Tomlinson drew attention to the power imbalance between large media corporations and small individual claimants. Without CFAs, or some other form of legal aid, individuals with small incomes would find it difficult to pursue action against defamatory statements, where corrections were deserved.
He gave the example of one of his former clients, a university lecturer who was able to challenge defamatory allegations made by the Daily Mail, which incorrectly accused him of grooming a suicide bomber: “without a CFA, which he had, he would have had no prospect of taking them on“. The CFA addressed the power imbalance, Tomlinson argued.
PCC lacks credibility
Once the debate was opened to the floor, the PCC became the main target. PCC board member, Professor Ian Walden, asked why the regulator wasn’t a suitable mediator for some of the situations described.
Solicitor Jonathan Coad has already made his feelings about the PCC clear and it seemed the others held similar views. Mark Lewis – declaring his “vested interest” in receiving their cheques – commented that a solicitor in private practice would be “negligent” to advise a client to go to the PCC, if they could go to the courts and sue. The PCC’s arbitrary justice showed a lack of credibility for dealing with people’s complaints.
Tomlinson said he thought statutory press regulation would solve 99% of the problem, (although, as Coad said, it would put libel lawyers out of a job). Broadcasters with stringent Ofcom regulation were sued less often, he said. Whereas broadcasters give subjects a week to make a statement and then included it in the programme, newspapers leave it to the last minute, selectively quoting the response.
Another question dealt with costs, with Coad protesting that libel was far cheaper litigation than other types of law. Legal costs have gone too high, said Tomlinson, but libel was not the worst by any means. This wasn’t just a problem to be solved in libel.
Overall, the discussion raised complaints about procedural time and costs rather than identifying problems with the substantive law. And costs are one aspect that the government bill doesn’t address.
The Libel Reform campaign has, however, asked the government to strongly consider adding to the bill an alteration of procedures in courts to “reduce the time it takes to reach trial and the costs of libel actions”. Perhaps the speakers at the Queen Mary event would find some common ground with the campaign on that point. But that’s for another debate.
The event, the first of a series of media law seminars, was hosted by the Centre for Commercial Law Studies at Queen Mary, University of London, and the City Law School at City University London.