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.

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.

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.

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.

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.

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.

So farewell, Google Ads

I've dropped the Google Adsense link from the side of the blog.

No great hardship, I wasn't going to retire early at the rate things were accruing.

The final straw came when one of my final-year students Josh Halliday screengrabbed and tweeted my blog, with a no-win, no-fee defamation lawyer at the top of the ads.

They've been on there for some time, betraying the fact that Google Adsense has no sense of context, or irony for that matter.

There was also the small issue of a competitor consultancy pitching up on the blog too.Not good business.

Anyway, Mr Halliday has suggested Addiply as an alternative, so I'll check that out and see if they can have me putting my feet up at 50, which is sooner than I care to contemplate.

Paxman gets Paxoed by the man from Plaid

Lovely clip from Newsnight.

Slightly sneering reference from Paxman to Eurfyl ap Gwilym's 'august' position as deputy chairman of the Principality to start off.

What follows is a beautiful example, as an interviewee, of how to deal with the aggressive interview.

Know your stuff, stay calm, and get your digs in when you can.

Eurfyl to Paxo: "Do your homework."

Paxo (truculent): "I have done my homework." (sound of shuffling papers as he finds that, actually, Eurfyl is right)

Eurfyl is obviously Wales's very own Vince Cable.

Post Script. If traffic to this blog since I posted the above is anything to go by, Mr ap Gwilym is an electoral smart bomb that Plaid could do to drop a little more often between now and election day.

With all three of the main parties today accused by the Institute of Fiscal Studies of being too vague in where they will make cuts after the election, an economist who knows what he is talking about would seem to be just what they need.

Jack Straw's Soapbox Blog

Take a look at the blog by one of Jack's self-described 'bag carriers' as Mr Straw tours the country with his soapbox speaking to, and taking questions from, the public.

In the interests of political impartiality (not that a blogger needs to be) if the other parties can point me in the direction of something as entertaining, I'll link to it too.

Tories and Lib Dems commit to libel reform too

Both the Conservatives and Lib Dems have included libel reform as a manifesto commitment.

Conservatives: "We will review and reform libel laws to protect freedom of speech, reduce costs and discourage libel tourism."

Lib Dems say they will: "Protect free speech, investigative journalism and academic peer-reviewed publishing through reform of the English and Welsh libel laws - including by requiring corporations to show damage and prove malice or recklessness, and by providing a robust responsible journalism defence."

So it's a commitment by all three main parties, with the Lib Dems being the most specific. Who will deliver though?

Labour's libel reform commitment

Labour has included libel reform in its manifesto.

"To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely. "

Election law

Well, they're off, so here's a brief rundown of the legal problems that can arise when reporting elections.

Firstly, libel, it's always with us, but elections are that special time when candidates lay into each other with abandon and occasionally say something defamatory. Remember it is no defence to say you are simply reporting what someone else said (but see below). Anyone who repeats a libel is potentially liable for it and a defamed candidate may decide to sue the relatively wealthy media outlet that has repeated the libel rather than the relatively poor opponent who originated it. Beware accusations of racism, fascism and plain old lying.

However, if you are reporting remarks made at a public meeting, or press conference, then you have a defence of qualified privilege, so long as you are reporting fairly, accurately, on a matter of public interest and without malice. Don't get overly worked up about malice - the malice of the speaker does not 'infect' your report of their speech and has never yet destroyed a defence of qualified privilege mounted by a media organisation.

False statement about election candidates. Section 106 of the Representation of the People Act 1983 makes it a criminal offence "to make or publish a false statement of fact about the personal character or conduct of an election candidate, if the purpose of publishing the false statement is to affect how many votes he/she will get."

The false statement must be statement of fact, not opinion. It is a defence to show at the time of publication you had reasonable grounds for believing the statement to be true. A journalist who published false claims that a candidate was homosexual was fined £250 in 1997. Note that it is no longer defamatory to say that someone is gay (unless it implies they are dishonest by concealing their true sexuality) but it would contravene this law. The reason being that if the voters included those whose religious beliefs cause them to hold anti-gay views, then such a statement could affect turnout for the candidate.

The 1983 Act also makes it an offence to publish a false claim that a candidate has withdrawn from the election if you know the claim is false and it is being made to promote the election of another candidate.

Impartiality of broadcasters. The Ofcom code and BBC Editorial Guidelines have detailed guidance on achieving impartiality. Several radio stations have been fined by Ofcom after presenters declared political allegiance on air.

Exit polls. Section 66A of the 1983 Act makes it an offence to publish the results of an exit poll before polling has finished. The reason being if the exit poll reveals a runaway winner it may discourage people from voting an thwart the democratic process. It is also an offence to publish a prediction of an election result if it is based on such a poll.

Election counts. Admission to the count is the responsibility of the returning officer. There is no national media policy, so best make contact early to make sure of arrangements for the night.

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.

Libel reform and the working group report

By now you may have had a chance to read the report of the working group on libel, and read some of the coverage of it and the response from Jack Straw.

There was a mass lobby of Parliament yesterday on this subject, and the minister, as well as opposition spokesmen attended.

There are a number of changes in the offing, some achievable by tinkering with regulations and therefore reasonably speedy, others requiring legislation and therefore the commitment of an incoming government, be it Labour, Tory or some combination involving the Lib Dems.

There will be those who say the changes proposed by the working party do not go far enough. The working party, being a broad cross-section of those representing media, NGOs, academia, claimant and defendants, was always going to reflect a multiplicity of opinions.

However, read the proposed changes being put forward and look at them in the context of a reduced costs regime as proposed by Jack Straw.

What you will get if the changes as proposed are all put into effect is, and this is a very broad brush description:

1. Less likelihood of being sued for libel due to changes to the multiple publication rule and restrictions on libel tourism.

2. If you are sued, a better chance of defending yourself if you are publishing in the public interest.

3. If you are sued and you lose, it will be less ruinously expensive due to the curtailment of the 'uplift' success fees charged by no-win, no-fee lawyers. The cuts in success fees will also, I would imagine, take some lawyers out of this market, again cutting the likelihood of getting sued.

So, a step in the right direction, a rebalancing of burdens. Not everything that those campaigning for reform might have wanted, but more then their opponents might have wanted to give.

What matters now is how much of this is put into effect, pre, and post-election.

Libel working group report published

The Ministry of Justice has published the report of the working group on libel, you can download it here

Libel working group report

The report of the Ministry of Justice working group on libel is due to be published this morning. Should be up on the MoJ website within the hour.

More later.

Is old law bad law? Nick Clegg thinks so, but he's wrong.

Nick Clegg was on Radio 4 Woman's Hour this morning and first question in was what he thought of MPs accused of expenses offences possibly using parliamentary privilege as a defence.

His quick answer was that it was wrong to use a defence dating back to 1689 in this day and age.

And some might agree, how can archaic laws possibly apply in this modern age.

But hang on, there's a lot of law out there and just because it's old, doesn't make it bad per se.

For instance, habeas corpus, the law which allows us to take action against unlawful detention by the state, dates all the way back to 1215. I doubt somehow that Nick Clegg and the Lib Dems would rush to do away with habeas corpus simply because it's a bit long in the tooth - albeit that European arrest warrants have rather undermined it already.

Yes, there's a lot of arcane law on the statute books, but to say that something is wrong simply because it's old is rather a foolish argument.

One could equally say that old laws have stood the test of time and so encapsulate fundamental principles which have prevented the need for repeal over the centuries.

Nick Clegg might have justifiable objections to the use of parliamentary privilege, but let's hear something a bit better thought out that simply saying: It's an old law, it shouldn't be allowed. That just insults our intelligence.

Furthermore, he might not like the use of a defence of parliamentary privilege, but surely that's a matter for a jury to decide upon. I would have thought that a Liberal leader, of all people, would defend principles like the presumption of innocence and right to a fair trial, even of his political opponents. Unless of course, that chance to score a few points before an election means the temporary setting aside of such principles.

Former DPP says the PCC is 'farcical'

Sir Ken MacDonald, former Director of Public Prosecutions and now visiting professor of law at the LSE became the latest figure to attack the PCC last night.

He has advised lawyers and media organisations to withdraw from it.

This is the latest blow to the reputation of the PCC. In November, Alan Rusbridger, Guardian editor, resigned from its code committee after if failed to rule in favour of The Guardian over its phone hacking investigation.

Rusbridger said last night that the PCC's credibility was clinging by its fingertips.

Other voices have criticised the PCC recently. Roy Greenslade described it as an effective mediator of the regional press, but less effective at regulation.

The PCC has been a bit flat-footed in its response to serious criticisms like this, some might say arrogant. It needs to heed such voices.

A new Parliament will be elected this year, and one which will perhaps have more of an appetite for statutory regulation. Criticism like that of Sir Ken MacDonald should be regarded as fair warning.

Working group members

Here's the membership of the working group on libel:

Sir Leszek Borysiewicz, chief executive of the Medical Research Council

Tracey Brown, managing director of Sense About Science

Desmond Browne QC, of chambers 5 Raymond Buildings

Rod Christie-Miller, partner and chief executive at law firm Schillings

Robin Esser, executive managing editor at the Daily Mail

Jo Glanville, editor of Index on Censorship

Jonathan Heawood, director English PEN

Tony Jaffa, head of the media team at law firm Foot Anstey

Sarah Jones, head of litigation and intellectual property at the BBC

Marcus Partington, chairman of the Media Lawyers Association and legal director of Mirror Group

Gill Phillips, director of editorial legal services at Guardian News and Media

Professor Gavin Phillipson, of Durham Law School

Mark Stephens, a partner with law firm Stephens Finers Innocent

Andrew Stephenson, a partner at law firm Carter-Ruck

Paul Tweed, senior Partner at Belfast-based law firm Johnsons

Sunday Times editor John Witherow

...and me.

The presence of Rod Christie-Miller might explain the 60 or so visits to this blog last week by someone at Schillings. Pity them having to wade through my Welsh column archive, they could have just called me.

Ministry of Justice working group on libel

Over the Christmas break I was invited to join the working group being set up by the Ministry of Justice to look at the law of libel.

It is an area of law that's creating a lot of 'heat' at the moment - issues such as 'libel tourism', conditional fee agreements and the burden on a defendant have all attracted a great deal of attention from the traditional media as well as bloggers and the Twitter community too.

The working group is to meet four times in January, February and March before reporting to Jack Straw with its recommendations.

As yet I don't know who the others members of the working group are, although when announced it was said to be made up of editors, lawyers and academics.

Incidentally I've also advised the MoJ on opening up the family courts and the plans to allow further media access.

I'll blog whatever I can, whenever I can. although I suspect the discussion may be confidential until the report to the Minister is made public. So watch this space.