The Libel Reform Campaign has welcomed today's media select committee report as "a great starting point to ensure an unprecedented overhaul of our libel laws".
The Libel Reform Campaign, led by English PEN, Index on Censorship and Sense About Science, has welcomed the report by a group of influential MPs on the Culture, Media and Sport select committee as “a great starting point to ensure an unprecedented overhaul of our libel laws”.
In the run up to the report the campaign galvanised 35,000 supporters including Left Foot Forward and persuaded 206 MPs to sign a Parliamentary Early Day Motion.
The committee made a number of serious suggestions on reforming our libel laws, which in the subsequent reporting have been sadly overshadowed by the far less interesting criticism of the News of the World phone tapping scandal.
Tory chair John Whittingdale MP has heeded the counsel of campaigns like the Libel Reform Campaign and put together recommendations that if taken forward by the justice secretary’s working party on libel reform would lead to a great leap forward in freedom of expression.
Here is the reaction of key campaigners to the major points made in the report:
• Libel Tourism
The committee accepted the campaign’s concerns over ‘libel tourism’ and that too many cases are heard in the High Court in London, with the recommendation that there should be ‘additional hurdles’ before jurisdiction is accepted in our courts. The committee took a strong stand on this issue, saying:
“The reputation of the UK is being damaged by overly flexible jurisdiction rules.”
Jo Glanville, the editor of Index on Censorship, said:
“The committee has echoed our concerns that we’re in danger of becoming a global free speech pariah, with some US states passing laws to block the decisions of English judges. For MPs to recognise our reputation in the UK is being damaged by libel tourism is a big step forward. We are hopeful the Ministry of Justice will take action on this.”
In one of the most compelling recommendations, the committee recommends that in cases involving corporations, “it would be fairer to reverse the general burden of proof”. It further recommends that there should be a new category of tort titled “corporate defamation”, which would require a corporation to prove actual damage to its business.
Jonathan Heawood, the director of English PEN and co-author of the ‘Free Speech Is Not For Sale’ report, said:
“I’m delighted that the select committee has made brave proposals on limiting the ability of corporations to bully charities, journalists and writers.
“Recognising that corporations have huge resources at their disposal, the recommendation to alter the burden of proof and make corporations prove that allegations made about them are untrue, will help stop the appalling abuse of our courts by major corporations.”
• Public Interest Defence
The committee endorsed the campaign’s calls for a stronger and more accessible public interest defence after hearing evidence from scientists, writers and human rights activists who expressed doubts over the reliability of using this defence in court.
Tracey Brown, the managing director of Sense About Science, said:
“We welcome the committee’s recognition of the harmful effects of UK libel laws on the science and medical community. The proposal for a clear public interest defence is an important step toward the far-reaching reform that is needed.”
• Fair Comment
After hearing significant evidence from the science and NGO community, the committee accepted that the “fears of the medical and science community are well-founded”, and proposed the government:
“Take account of these concerns in a review of the country’s libel laws, in particular the issue of fair comment in academic peer-reviewed publications.”
Whilst we welcome the committee’s acceptance of the seriousness of the problem, especially in light of the recent Simon Singh and Ben Goldacre libel cases, we have also raised concerns that ghettoising fair comment in peer reviewed journals would not have helped Simon Singh in his libel case whatsoever.
It is important that a fair comment defence is available to everyone, not just for academic discussion out of the reach of ordinary people.
The committee heard evidence on the costs of bringing or defending a libel action. Of particular interest was the revelation that law firms like Carter-Ruck charge £400 an hour ‘base rate’, with partners charging in excess of this. The committee took a tough stance on these hourly rates making the recommendation that there should be:
“Maximum hourly rates that can be [possibly] recovered from the losing party in defamation proceeding.”
As it is the cost of libel actions that deter charities from defending claims they make, this recommendation is strongly welcomed by English PEN, Index on Censorship and Sense About Science.
Another cost in libel trials is what is known as ‘after the event insurance’ (in which a claimant will take out insurance, often costing 65p for each £1 of cover). If they win (and in 90% of cases they do) the cost of the insurance is added to the costs the defendant pays.
The committee took our campaign’s view that these premiums should be “wholly irrecoverable” which will reduce costs in many libel cases by £65,000 – £100,000.
The committee’s recommendation that success fees recoverable from the losing party should be limited to 10% of costs with the excess negotiable between solicitor and client, in our view, “gives the client an incentive to minimise costs, which should be broadly welcomed”.
The political significance of the report:
John Kampfner, CEO of Index on Censorship, said:
“206 MPs have signed Parliamentary Early Day Motion 423 calling for libel reform. The Select Committee report by John Whittingdale MP will add to the rising chorus of voices within Westminster calling for reform of our outdated libel laws that benefit no-one except £400-an-hour lawyers.”
All three major political parties are now looking into reforming our libel laws:
• As a result of the campaign, justice secretary Jack Straw has set up a working party to look into reform of our libel laws.
• Liberal Democrat leader Nick Clegg has committed his party to wholesale reform of English libel law and praised the campaign, saying “the Libel Reform Campaign is doing excellent work in leading the way in calling for this outdated and unfair system to be changed.”
• The Conservatives are seriously considering the proposals made by campaign.
Here are some some facts you may not know about English libel law:
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• Our libel laws are stacked in favour of claimants; of 154 libel proceedings in 2008 identified in the Jackson Review (of 259 taken to the High Court), zero were won by defendants. The most expensive libel action cost £3,243,980 and the average cost for the 20 most expensive trials was £753,676.95.
• The average cost of a libel trial in England & Wales is 140 times the European equivalent.
• Media companies are becoming now less likely to fight libel cases to a verdict; in 2008 61% of libel proceedings were settled by a “statement in an open court” this has risen from 21% in 2004.
• As the recession has deepened more corporations are suing each other in a “race to the bottom” to bolster their public profiles. The number of libel cases involving a business suing another business tripled last year.
• In a survey of 600 GPs, half believed that English libel law was “restricting open discussion of the potential risks of drug treatment”.
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