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.

Libel law giveth and it taketh away

By now I'm sure those of you with half an interest in libel law will have heard news of Simon Singh's successful appeal in the action brought against him by the British Chiropractic Association. A very good summation of the hearing and what might happen next can be read in The Times report of the case.

To sum up, very briefly, Simon Singh, a science writer whose publications include the excellent Fermat's Last Theorem, wrote an opinion piece in The Guardian in 2008 in which he alleged the BCA promoted 'bogus treatments' for childhood conditions like asthma, colic and earache.

The BCA sued him for libel and in an earlier hearing in the High Court, Mr Justice Eady said that Singh's article had contained assertions of fact and so he could not use the defence of 'fair comment' which normally protects statements of opinion.

Singh might have given up then as his legal bills were already soaring, but he fought on to appeal that point, that he should be allowed to use fair comment as a defence. And that is what he won yesterday, the Court of Appeal said he ought to be allowed to use fair comment as a defence.

The judgement is interesting for a number of reasons, but I particularly liked phrases such as: "This litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic." And that in suing Singh personally and rejecting an offer of an article in reply from the Guardian "The unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics."

The full judgement is beautifully crafted and has been put up on Scribd by journalism.co.uk as part of their coverage of the case.

Heartening thought the judgement is, it's taken two years and £200,000 to get this far and it's only half way. The ball is in the BCA's court. It can go back to trial, with Singh allowed to use fair comment, it can appeal to the Supreme Court or it can drop the case. As the appeal court judges said, this is no way to pursue scientific debate.

The problem is that Simon Singh is the tip of the iceberg. He is the brave writer prepared to devote the time and cash to the battle. But for every Simon Singh there are hundreds of publishers who drop articles apologise and pay out of court simply to avoid the ruinous expense of a libel action.

Justice Secretary Jack Straw, to his credit, has begun to do something about this and had introduced reforms into Parliament that would cut 'success fees' for no-win, no-fee lawyers. This is the system where a lawyer who takes on a case on a conditional fee - no-win, no-fee - can be awarded 'uplift' - a success fee if they win the case. This means, dependent on how much uplift the court awards, they might double the fees they charge.

Now the order introduced by Straw has been voted down by a committee of MPs. Straw is hopeful it might be revived when it comes to the Commons.

Somewhat strangely, one of the MPs who opposed the order was Chris Mullin, a former journalist of great repute. He said he felt lawyers would not take on tough cases any more.

This is a much more important issue for the regional press. I travel a lot talking to regional editors and they tell me that as much as 90% of the libel threats they get are coming from CFA lawyers and that in the vast majority of cases they settle rather than face the crippling costs of an action.

Straw's reform would have cut the fees that CFA lawyers could expect to get. This would make fighting an action more realistic as it would drive down costs.

For the regional press the issue of the potential cost of a libel action remains the most pressing concern and until that is addressed the chilling effect of libel will suppress freedom of expression.