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What next for libel reform in Britain?

Recent reforms to UK libel law look set to encouarge greater freedom of expression. The coming months will be pivotal in determining how they are put into practice. 

Robert Sharp
7 May 2013

During the course of the three-and-a-half year Libel Reform Campaign, I've spoken to dozens of ordinary people who have had their free speech curtailed by the English law of libel. One of those was a school governor, who had been involved in a public campaign against a major property development next to the school. After preparing a press release on the issue outlining the school's objections, the man received an ominous e-mail back from the property developer: "I suggest you choose your words very carefully".

The school governor was unsettled. "Is the reply innocuous? Or a threat?" he asked me. In the end, he chose not to send his press release after all. "I played safe, I have a family" he said.

Here lies the libel 'chill'. The complex and costly law does not only affect the traditional media outlets. It suppresses the contributions of citizens who do not consider themselves to be journalists, and who do not consider their online discussions to be 'publishing'. "Tip of the iceberg" is an overused cliche, but it is apt when discussing libel. For every high profile case that is actually fought in the High Court, there are dozens more that are settled behind closed doors, and thousands of everyday acts of 'privatised' censorship that allow those with wealth and power to shut down criticism.

In many ways, the recent Defamation Act will discourage the worst abuses of our libel law, and chill the chillers. The claimant has to show that they have actually been harmed by a defamatory comment (which was not previously a requirement). There are toughened defences of truth, opinion, and a new public interest that gives more leeway to publishers of all sizes to ask questions of those in power, and draw inferences, if they believe that doing so is in the public interest. Operators of websites and forums will not be held liable for the articles and comments posted by others, so long as they follow a set procedure to let the author know of any complaint.  'Libel Tourism' (where foreign defendants are forced to defend a libel claim in the London courts) is curtailed.  Peer-reviewed publications now have very strong protections, which should allow doctors and scientists to publish the results of their research, without fear of a writ from the pharmaceutical and technology companies whose products they criticise.  

Taken together, these reforms should shift the centre of gravity of our libel laws towards greater free expression. Case law will soon establish better free speech precedents, and the new clarity and certainty in the law will embolden publishers of all sizes.  Investigative journalists will have more confidence in exploring difficult areas, and human rights NGOs like Human Rights Watch and Global Witness (who regularly receive legal threats when publishing reports) will be emboldened.  Meanwhile, local bloggers can check their writing against the clear defences on the face of the Act, rather than having to pay a solicitor to wade through the common law.  More such bloggers will make the decision to publish rather than keep quiet.  A crucial task for Libel Reform campaigners now is to publicise the new defences as widely as possible, so the 'long-tail' of citizens who comment on local issues will know where they stand.

The actions taken by the Government and the judiciary in the coming months will be crucial to how the law operates in practice.  Court procedure is unfortunately not the most accessible area on which to campaign, but new Civil Procedure Rules could give the Defamation Act real bite, by ensuring that the trivial cases are struck out at an early stage. The Ministry of Justice has been promising to publish these new rules for over a year, but has so far conspicuously failed to do so. Now the Defamation Act has been passed, it has run out of excuses for further delay.

Many of the worse abuses of the libel law have been by companies, not people. A corporate reputation is very different to a personal reputation, because there is no psychological element - a company cannot suffer hurt feelings.  Despite this conceptual difference, the Government was very reluctant to consider any curbs on corporate use of the libel law.  However, the Labour Party in the House of Lords did manage to force this issue onto the agenda, and Ministers (pushed by their Liberal Democrat coalition colleagues) agreed that companies should have to show financial harm when they sue.

Many of English PEN's international campaigns are on behalf of people who have had defamation charges brought against them by the Government. Happily, this does not happen in the UK because of the Derbyshire principle. This is the case law that stops the Government and its agencies from suing citizens. The principle states that public bodies spending taxpayers money must be open to full and frank criticism of their activities.

Unfortunately, this principle is threatened by the growing practice of contracting out public services. While the Government itself cannot sue, the private companies who are delivering more and more public services are free to use the law to stifle criticism.  Recently, Atos Healthcare threatened legal action against a web forum, CarerWatch, where people had been criticising the way the company handled disability benefits assessments for the Department for Work & Pensions. Had the department assessed the applications internally, the carers on the forum would have been free to complain. But because Atos is a private company, it is free to issue threats to sue in libel.  

During the Parliamentary debates, the Government flatly rejected proposals to extend the Derbyshire principle to private companies spending taxpayers money. British citizens are therefore confronted with a looming democratic deficit. As private companies take over the running of prisons, waste collection, school dinners, care homes, and large swathes of the NHS, the space to criticise them is squeezed. By leaving the Derbyshire principle to the courts to develop further, the Government have introduced an unwelcome ambiguity into our public discourse, especially at the local level. It will be left to citizens to closely monitor how the big subcontractors behave in this area. Any hint that these corporations are stifling public criticism through use of the libel law must be met with a public outcry. The network of over 60,000 petition signatories and 100 civil society NGOs will be crucial in keeping these corporate behemoths in check.

The final task for Libel Reform Campaigners is to see the new laws fully implemented throughout the United Kingdom. The new Defamation Act will only apply in full in England and Wales. Scotland has its own laws, and the Stormont Executive refused a 'legislative consent' motion that would have allowed the Westminster legislation to apply in Northern Ireland too.  We therefore risk the prospect of a two-tier libel system developing in the UK, with residents of England and Wales enjoying greater free speech protections than their fellow citizens in Northern Ireland. The Defamation Act 2013 will allow London to shrug off its embarrassing international reputation as "A Town Named Sue." It would be appalling if Belfast were to inherit that title.

Robert Sharp is Head of Campaigns and Communications at English PEN 

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