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New Defamation Act’s demand that claimants prove serious damage first could end the gravy train of McLibels
The Defamation Act 2013 will not rid the libel law of England and Wales of all of its many abuses. For example, the big problem of costs is only indirectly addressed. However, the new statute will make it harder for bad claims to be threatened. This is welcome and it is in the interest of not only potential defendants but also the public.
One historic flaw of the law of libel lay in its nature as a tort. It was a cause of action where damage was presumed. In practice, this meant that the aggressive claimant solicitor could threaten a libel claim with startling and worrying ease. His or her client did not have to suffer any actual or potential damage. In contrast, the potential defendant faced the immediate and expensive burden of proving a defence. In most circumstances, regardless of the merits of any defence, it was cheaper to apologise and not publish again. More recently, it was sensible to just pull the statement complained of down from the internet. Libel was a terrifying game of costs - and one played cynically.
Over time, the misuse of libel became notorious. Many libel lawyers did not care that this was the case, or they pretended otherwise. The promotion of ‘reputation management’ was a valuable revenue stream. Some cases, such as the claims against science writers Ben Goldacre and Simon Singh, and against the doctor Peter Wilmshurst, indicated that even public health was now at risk. Health providers realised they could routinely silence criticism of their questionable products and techniques by merely instructing a London libel lawyer. This was unacceptable.
There was some judicial reaction. The judges sought to limit some of the more outrageous cases. Some claims were struck out as abuses of process under the Jameel principle, based on a rule that was originally intended only for ‘exceptional’ situations. But this was not enough. It still meant bad cases could be brought or threatened; it was for the defendant to assume the costs risk of an application to strike out. And so the libel chill continued: things were not published or broadcast that would have been in the public interest to publish or broadcast, because of the fear of a libel claim.
But is the new act any good? Some libel lawyers, who previously said the law of libel was perfectly fine as it stood, now contend the act will make no difference. This view is misconceived. Section 1 of the act changes the substantive law so that it is for claimants to show serious damage so as to bring and thereby threaten a claim. No longer can threatening letters be sent on the casual basis that the claimant does not need to show damage. And for commercial companies it will be even more difficult. McLibel could not happen again.
For too long, the jurisdiction of the High Court in London has been used by the powerful to inhibit those who say unwelcome things. The practice of libel had become disconnected from the tort’s proper purpose of vindicating reputations. Things had gone badly wrong and something needed to be done.
One hopes the Defamation Act 2013 will go some way to restoring the reputation of law of libel itself.