Friday, May 28, 2010

And what's not in Lord Lester's Bill

As far as I can see this Bill does not provide the radical change to the laws of libel that many have been calling for - but I'm not wholly sure that any Bill can.

The Bill does not, in my opinion, really address the fundamental problem that many have with the libel laws as they operate at the moment and that is the issue of costs of defending an action.

The Condional Fee Arrangement has made it easier than ever to sue for libel, but defending an action is just as expensive and the prospect of being awarded costs from an unsuccessful claimant, sadly small.

This issue was addressed by Lord Justice Jackson in his report earlier this year. Jack Straw introduced welcome moves to cap costs, but they were kicked into the long grass in the House of Lords over concerns they would limit access to justice by those of limited means.

But this is all tinkering at the edges of the problem. I travel round the country talking to journalists and editors on regional papers and frankly the moves to reduce costs are not enough for them.

One North West editor told me that 90% of the libel threats he was getting were emanating from a few firms doing CFA business. They had absolutley no intention of taking their claims to the High Court, but were relying on the fact that the papers don't have the budget to go there either and so they get a small-ish settlement to end the case.

Of course some brave souls soldier on into court, despite limited resources and the action soaks up their finances and their time - Simon Singh for example.

But he is the exception to the rule, most simply don't have the stomach, or rather the cash, for the fight. Many regional papers abandoned libel insurance long ago because of the high premiums. Also when you get into a fight the insurer often urges early settlement to avoid hefty court costs.

So you can strengthen the old defences, strike out actions, create a public interest defence - but many publishers won't go that far. Ands that is the really insidious thing about libel. Not the way the courts necessarily operate, but the environment it creates outside the court, where an aggressive litigant can stifle legitimate debate by constant threats of libel action.

Solutions have been suggested, such as making the burden on the claimant greater. However, it would be very difficult, for instance, to reverse the burden of proof in a libel action, requiring a claimant to prove they did not commit the defamatory behaviour alleged. We do not require that of those accused in criminal trials, and so such a move would probably not bear a challenge in Europe.

But what if there were an alternative way of resolving disputes? A forum that the courts themselves would say: No, you must try there first before you come to law?

Well, what about the PCC? Before you dismiss it, I'm not saying that in its present state it could do the job. If you were a lawyer advising a libelled claimant what would you say: Go for the High Court and big buck for both of us, or go to the PCC where the best you'll get is an apology and you don't need my expertise to do it?

If we really are going to get radical reform of the libel laws in this country then I see it being tied to a regulatory system that is far more pro-active than the PCC, and one which has ultimate penalties that are more serious than a requirement to print an adjudication.

Of course, the idea of a PCC with teeth is not a new one and it has been batted away by the PCC and the industry as being unworkable and that it will inevitably drag those expensive , time-consuming lawyers into the process. That argument might hold water if there were not a great big elephant in the room called Ofcom - which can and does levy fines and does not seem to take inordinately long to give broadcasters a caning. Of course, we'll have to see if it survives not the Coalition Government is in power.

But as newspapers increasingly move their content online and onto video, the line that differentiates them from broadcasters is being blurred and I'm not sure the argument against them having a regulator similar to Ofcom is as valid as it used to be. Of course, I know, the existence of Ofcom has not stopped broadcasters from being sued for libel. But if you put in a regulatory system of first resort, you might have a chance of heading off libel threats.

This will require some action from the PCC. They are very good at publishing customer satisfaction surveys for those who use their service and are happy with the outcome, but what they need to do now is look at why people do not use them, and instead go to law.

Thursday, May 27, 2010

Defamation Amendment Bill 2010 - Analysis

This is a swift analysis of the Bill published today, introduced by Lib-Dem peer Lord Lester as a Private Member's Bill.

As I mentioned earlier, this first thing that struck me was Section 1 which establishes a statutory defence of publication in the public interest, and it seems to be based on the Reynolds defence.

Prior to this, the defence was one at Common Law, developed by judges and stemming from the case of Reynolds v Times Newspapers. The difficulty with Reynolds for publishers is that it is a defence where there is almost an acceptance that you have to fight in court to get it. Unlike the other privilege defences, which often head a case off before it has even got to court. There are so many hurdles to Reynolds that it if you as a publisher want to claim it, you have to accept that your journalistic practices are going to be scrutinised in court in order to establish whether you get Reynolds or not.

This Bill in Clause 1a and 1b establishes a defence if the matters were published in the public interest and the defendant acted responsibly in doing so. However, it then goes on to define reponsible publication and use some, but not all, of the language of the 10-steps of the Reynolds defence described by Lord Nicholls in that case.

When the Ministry of Justice working party on libel reform reported on this it stopped short of recommending the codification of Reynolds. Instead some of its members, notably those representing NGOs, writers and the scientific community, recommended that consideration be given to a new public interest defence where publication dealt directly with politics, science, commerce, sport healthcare, the environment, public administration or was a form of artistic impression and that any relevant professional codes and standards had been followed by the publisher.

I'm not especially advocating the working party plan, but it's interesting that Lord Lester's Bill goes for a Reynolds model rather than a new defence.

The second thing of note is that in the the second clause of the Bill the defence of fair comment is renamed as honest opinion. This is a more accurate title for the defence, and has been described thus by judges in such cases as Branson v Bower [2002] QB737. It's worth noting that the Bill in describing how a defence of honest opinion is established says at 3(6)c it does not matter whether the facts that led to the opinion are included in the publication or not. So, if you had this defence, you would not need to publish: This is what I think and this is why I think it.

Clause 4, eminently sensibly changes the name of the defence of Justication to Truth.

A defendant would have to show words to be true, or capable of a less serious meaning, according to the Bill. Note that the Bill does not reverse the burden of proof as regards truth. The onus is still on the defendant to show the truth of what they have published if that is their defence.

The defences of absolute privilege and qualified privilege in the Bill look broadly similar to the existing defences, as do the schedules defining what they cover.

Clause 9 of the Bill is interesting in the defence it provides for broadcasters and websites where they are not the authors or editors of the defamatory material. A claimant is required to give notice of the words complained of; why they are defamatory; what is untrue and why they are harmful. The defendant the has a notice period of 14 days from receipt to remove the offending material.

Clause 10 would appear to answer the concerns of those publishing on the internet by stating that as long as what you publish is by the same person and has materially the same content, then the date it was first made available to the public is the first date of publication.

Clause 11 makes an important change in requiring corporate bodies who want to sue for libel to show substantial financial loss.

Clause 12 continues that theme in requiring the court to strike out an action for defamation unless the claimant shows substantial harm of the likelihood of substantial harm to their reputation.

That's a brief summing up of the points of interest from a quick reading today. I'm sure others will find more to chew on in the days and weeks to come.

What happens now depends on whether the coalition government uses Lord Lester's Bill as a template for reform and gives it parliamentary time, or whether they want to introduce their own Bill, as promised in the Queen's Speech.

Lord Lester's Libel Bill in full

Here's the Bill on libel reform introduced by Lord Lester. Via @martinjemoore of the Media Standards Trust

Will blog soon, but one quick point, it's opening section effectively codifies the Reynolds defence.

Tuesday, May 25, 2010

Libel reform in the Queen's Speech

Proposals to reform libel laws were included in today's Queen's Speech revealing the Coalition Government's legislative plans.

The Freedom (Great Repeal) Bill will, among other things, reform libel laws to protect freedom of speech.

Of course, the detail of the Bill is all-important, but the commitment to legislate is to be welcomed.

It promises to be an interesting Bill for journalists in another way in that it also includes a strengthening of the Freedom of Information Act. This, if it happens, is also to be welcomed, because FoIA, useful as it has proved, has too many exemptions allowing public bodies to avoid disclosing information.

Monday, May 24, 2010

Lord Lester's libel reform bill

Lord Lester is introducing a Private Member's Bill on libel reform to the House of Lords this Thursday.

He was interwiewed on Radio 4's Today programme this morning about the bill and you can listen to the it again here.

The Bill, he said, would 'assist' the government in looking at reform of the libel laws. He said it would include measures requiring claimants and corporate claimants to show actual damage - something they are not required to do at the moment, damage is 'presumed.'

He said the Bill would also require libel trials to be heard by a judge alone. It would also examine libel defences such as privilege. He pointed out that the last reform of the law was in 1996, with the Defamation Act of that year. This was, he said, before the spread of the internet, web hosts, bloggers and so on, all of whom are affected by libel laws.

Lord Lester has been active in this area for some time and has been planning his defamation reform bill last year, as reported in The Times.

It will be interesting to see the details of his Bill this week. All the major parties gave commitments to libel reform in their manifestoes. The Lib Dems' was the most specific. It will also be interesting then to see what reception Lord Lester's bill gets from Government, because to have any hope of proceeding the Government will have to agree to giving it time in Parliament.

Friday, May 21, 2010

Why the coalition is wrong on rape

Rather to the surprise of a few the coalition agreement published this week by the Conservatives and Lib Dems included plans to reinstate anonymity for defendants in rape cases - reported in The Guardian here.

I say reinstatement, because it has been tried before and the experience was not a happy one. Anonymity was granted to defendants in rape case by the Sexual Offences (Amendment) Act 1976, which also granted anonymity to victims in any offence which included the word rape - rape, incitement, attempted, aiding and abetting etc.

Interesting to see whether this anonymity applies only to rape or to the whole raft of sexual offences on the statute books now - grooming, voyeurism, trafficking etc.

Anonymity for defendants was brought to an end by the Criminal Justice Act 1988 for many of the reasons cited by those opposing this latest move. Namely that many sex offenders are repeat offenders and that seeing a defendant charged encourages other victims to come forward.

While I agree with those arguments, my concern is for the wider principle of open justice. Once you allow special pleading, ie, that a defendants life will be ruined by the mere accusation of the offence, then you set a dangerous precedent. if we accept that certain crimes are particularlay damaging to a defendant by their very nature, the you open the door to many other defendants trying a similar argument.

An accountant accused of fraud might argue that an accusation of fraud was specially ruinous; a teacher accused of hitting a pupil would say such a charge would be career-ending. Once you accept the argument that certain offences are especially damaging then you accept a principle which threatens open justice.

News organisations are already withdrawing from the courts, once a staple source of news. Putting another obstacle in the way of open reporting of the courts is a mistake.

Wednesday, May 12, 2010

Just a thought on the new government

OK, put yourself in Peter Mandelson's shoes. Do you stand idly by while the Tories and Lib Dems get all cosy as they negotiate Labour out of government? Or do you....interfere.

No, you set a hare running that there's a possibility of a deal with Labour, raising the hopes of grassroots Lib Dems round the country that they are not going into a coalition with the Tories, thus taking the blame and the fury for the cuts they will impose. You also raise the hopes of the many people who voted Lib Dem to keep the Tories out, only to face the prospect of putting them in.

Now, Mandelson, knows these talks will fail, he knows the mood of the party and he knows the mind of very senior colleagues who will not allow a deal with Lib Dems to go unchallenged. It is doomed to failure. The negotiating team went in clinging to things, such as ID cards, that the Lib Dems could not live with. The talks were doomed and intended to be so.

But you've done two things. You've raised the hopes of Lib Dem rank and file, making them realise the horror of what they're getting into. You've also made the Lib Dem leadership look like flip-flopping, duplicitous opportunists, auctioning off power to the highest bidder.

Now, all the above might be fevered fantasy on the eve of a Tory Government.

Or else it might be an act of Machiavellian political maneuvering worthy of.....Peter Mandelson.

And lest we forget. In 1997 Labour won 418 seats - 418 - now that was a majority, that was a mandate to govern. The Tories were utterly destroyed and left with just 165 seats.

Labour now have 258 seats, easily enough to come back at the next election and take power from what they have ensured is a very shaky coalition.

Oh and the Labour Party website servers went down last night, such were the numbers logging on to join the party. At the same time the Tory and Lib Dem recruitment pages were running just fine. Maybe they've got better servers.....maybe.

Sunday, May 09, 2010

Who would be an MP?

Pity the poor MP.

He or she has pounded the streets of their constituency for a month and been involved in an election that has been a real battle. Then on election night there is the euphoria of winning the seat and going to Westminster as duly elected Member of Parliament. Thrilling stuff.

But it doesn't take long for your feet to get planted very firmly back on the ground by your beloved electors.

Take a look at the blog of David Jones, MP for Clwyd West, where he thanks the electors for returning him. And it was a good win. Notwithstanding the national mood now, with a slender 133 majority when he won the seat from Gareth Thomas (Lab) in 2005, it was number 2 on Labour's list of seats they wanted to win from the Tories.

Well, he increased his majority to a much more comfortable 6,419, a very decent result by any standards.

But look at the messages of congratulation, and especially one from 'Hugh' who says that Mr Jones's victory was helped 'in no small part' by his efforts on behalf of Colwyn Bay Pier - sod the economy, schools, hospitals, the war in Afghanistan, it's aging Victoriana we really care about. What's more, inquired Hugh, was there anything to report on this from the Steering Group.

I know that Mr Jones will take the matter as seriously as a conscientious constituency MP would, but you'd have to have a heart of stone not to forgive him a roll of the eyes and a muttered: "Give me a break."

David and I are politically poles apart, but I think he's a sharp MP. The problem with record gains for the Tories is that in that group of newbies you'll have a few chinless wonders who you wouldn't want running a whelk stall - no offence, Labour had its fair share of lobby fodder in 1997.

If they do form a government the Tories need to make the most of those in their number who have the intellect to make a go of it. I'd keep an eye on Mr Jones in the coming months.