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.


Martin Moore said...

Welcome aboard David - what took you so long? ;-)

Banksy said...

Hi Martin, I think I've been saying similar for some time - a piece I did or the Guardian some time ago was along similar lines.

It's probably only now though that I've made the link to libel reform and PCC reform (or replacement)

Martin Moore said...

You have. And you're right to highlight the explicit link between the two. Something else that particularly interests me is Recommendation #5 in the libel reform report (suggesting the creation of a libel tribunal) which seems to sit in the gap that currently exists between the two.