Focus: Defamation, Clauses célèbres
28 March 2011 | By Katy Dowell
The draft Defamation Bill has been broadly welcomed by media reformers, but many believe the politicians have been perfunctory when they could have been revolutionary
After intense lobbying by defendant media lawyers and their newspaper clients, the Ministry of Justice (MoJ) has finally published the draft Defamation Bill. Broadly, it has been welcomed by the media reform lobby. Practitioners, however, complain that the legislation has only served to codify the status quo and that the MoJ has missed an opportunity to fix serious problems with costs and process.
The thrust of the argument for libel reform has focused on the need to protect freedom of speech. Reformists argue that London is the prime destination for libel tourists intent on destroying fundamental freedoms by silencing writers through expensive litigation.
At the heart of this, reformists argue, is a judiciary that has handed down successive judgments that have served to restrict free speech. In 2008 Daily Mail editor Paul Dacre summed up this school of thought when he slammed the “arrogant and amoral” judgments of Mr Justice Eady, who he said was “inexorably and insidiously” imposing a privacy law on the UK press.
Eady J took a year to respond, but when he did it was with vigour.
“It’s become fashionable to label judges not as independent, but rather as unaccountable and as hostile to freedom of speech,” he stated.
The spat, seemingly passionate and personal, only served to stir the attention of the MoJ, and the former justice secretary Jack Straw announced a long-overdue review of libel law.
His successor Ken Clarke picked up the baton and, under intense pressure from newspapers, which claimed to be under threat from countless injunctions, pushed forward the legal reform programme. Over the past 10 months the MoJ has held meetings with interest groups, including judges, lawyers and editors.
Meanwhile, the reformists have kept the issue in the public eye by homing in on the phone-hacking scandal, an issue that opposing lawyers say should be entirely separate from the libel reforms.
The draft Defamation Bill includes eight key clauses (see box, page 18) and a consultation. It is a slimmed-down version of the original Private Member’s Bill tabled by Lord Lester in May last year, which contained five principal parts: defences, statutory privilege, publication, cause of action and trial by jury.
According to Collyer Bristow partner Dominic Crossley, who represented Formula 1 chief Max Mosley in his successful privacy claim against News International, the bill is “a bit of an anticlimax”.
“I’ve responded with a bit of a shrug of the shoulders,” he comments. “A lot needs to be done in general and it doesn’t feel at the moment that the bill, as it’s drafted, deals with those issues.”
“It’s really quite disappointing,” echoes another senior media lawyer, who contributed to the drafting of the bill. “[The MoJ] had months and months to do this and countless meetings, but there are gaping holes in it.”
Addleshaw Goddard partner David Engel adds his voice to the dissenters. “The Government was disingenuous when it announced it,” Engel says. “There’s not a lot of new stuff. It’s just about codifying a load of stuff that’s already common law.
“Having said that, it’s generally welcomed by newspaper lawyers because it makes life easier for defendants. It strikes a good balance between the competing freedoms of the press and the right to reputation”.
Unsurprisingly, not everyone agrees.
“The bill’s a real disappointment for those of us who’ve called for a radical rethink of the existing law that would properly value the rights to reputation and freedom of expression while at the same time ensuring access to justice for both defendants and claimants,” says Professor Alastair Mullis of the University of East Anglia.
It is the nature of media litigation lawyers to find the argument in everything, but most agree that the bill will spawn litigation as the legislation is tested through the courts.
If the bill is passed claimants will be forced to demonstrate that an offending publication has caused ’substantial harm’. The aim is for the judiciary to filter out spurious claims before they get to the courts.
Claimant lawyers, however, say the clause is open to varying interpretations, depending on what side of the fence a client is on.
“There’s no guidance as to what this means,” says Taylor Wessing head of trademarks, copyright and media Niri Shan. “For example, how will a corporate claimant show they’ve lost a contract because of an article that’s been published? How does a celebrity show loss of reputation?”
Payne Hicks Beach partner Sarah Webb, whose clients include private investigator Glenn Mulcaire, who was jailed for six months for phone-hacking for the News of the World, agrees.
“Substantial harm means a huge amount of frontloading on costs because there’ll be interlocutory hearings about what has to be disclosed to show the harm,” she comments.
The MoJ has promised to crack down on rising legal fees as part of its response to Lord Justice Jackson’s civil litigation reforms. Libel reformists argue that it is because of the uncertainty involved with libel litigation, and the fact that the loser could end up paying the opponent’s astronomical legal fees, that writers are pressurised into settling matters.
Under the Jackson reforms lawyers will only get 10 per cent uplift on conditional fee arrangements (CFAs). It is understood that the final plans for reform could be published as early as this week, having a direct impact on how practitioners respond to the Defamation Bill consultation process.
“The big question is on costs,” says Engel. “The recoverability of success fees, after-the-event premiums, the costs-shifting rules - all these things mean that people who don’t have deep pockets won’t be able to sue.”
“So long as they don’t do away with CFAs completely the cut to the uplift will be manageable,” Webb says. “But it will also restrict the choice of lawyers because people will walk away.”
Reformists argue that, under the current regime, claimants can easily bring cases at no financial risk to themselves. This has attracted a wave of international wealthy libel tourists to the UK.
The MoJ concedes that it has little evidence to suggest that London is the libel hotbed that reformists paint it as. Nevertheless, the Defamation Bill states that courts will no longer have the jurisdiction to hear international matters unless England and Wales is the more appropriate jurisdiction.
Shan says this is a logical response to a perceived problem. “Although a lot’s unclear about libel tourism, it does send a message to foreign litigants - come here at your peril,”
The juiciest sections of the bill are contained within its consultation on clauses that may be added at a later date.
These include a closer look at court procedure; whether the summary disposal procedure should be maintained; and whether (although it did not explain how this might work) any specific restrictions should be placed on the ability of corporations to bring defamation claims.
“Non-governmental organisations have argued that corporates should not be able to use their muscle to silence their opponents, but having that as a statute isn’t going to go down well with companies wronged by editors,” says one libel specialist. “It places too much power in Fleet Street hands.”
The reform of libel law is long overdue, but in failing to be radical in its approach the Government has gained several legal critics. Without a reform of the court process and a fundamental rethink on the structure of costs, the Defamation Bill will lose its ’seminal moment’ status and be remembered as an opportunity missed.
Eight key clauses in the draft bill
1. Substantial harm defence
Libel is currently actionable without proof of actual damage. Recent case law has introduced a “threshold of seriousness” with regard to what is defamatory.
The bill states that a claimant must demonstrate that a statement caused, or is likely to cause, substantial harm in order for it to be defamatory.
2. Responsible publication on a matter of public interest defence
This codifies some of the existing law on the Reynolds qualified privilege defence.
The aim is that the defence will be available regardless
of whether the statement complained of is a statement of fact, an inference or an opinion. Historically this defence has arguably related to statements of fact only.
3. Statutory defence of truth
This clause replaces the current common law defence of justification, clarifying the law in relation to reportage doctrine. Where this applies, the defendant does not need to verify the information reported before publication if they believe it to be true at the point of publication.
4. Honest opinion defence
This can be relied upon if the statement is one of opinion and on a matter of public interest that an honest person could have held on the basis of a) a fact that existed at the
time the statement complained of was published, or b) a privileged statement that was published before the statement.
This extends provisions already contained in the Defamation Act 1996. For example, the law currently provides for absolute privilege to apply to fair and accurate reports of proceedings in public before any court in the UK.
This defence would be extended to cover proceedings in any court in a country or territory outside the UK.
6. Single publication rule
The first occasion on which a publication is made available to the public (or to any section of the public) is to be regarded for all purposes as the date
of publication of each subsequent publication.
7. Libel tourism
A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that England and Wales is the most appropriate jurisdiction in which to bring an action in respect of the statement.
8. Presumption of trial without jury
A reversal of the status quo, with proposals to remove the presumption in favour of a jury trial so that the judge would have the discretion to order
a jury trial where it is in the interests of justice.
Niri Shan, head of trademarks, copyright and media, Taylor Wessing
The draft Defamation Bill redefines the defence formerly known as fair comment, now known as honest opinion. A defendant will be able to rely on this defence where the statement is one of opinion and on a matter of public interest that an honest person could have held on the basis of a fact that existed at the time the statement complained of was published and/or a privileged statement that was published before the statement complained of.
This is hopefully a big liberalisation of the defence. It has been notoriously hard to rely on fair comment and there has been confusion about what defendants must demonstrate in terms of fact supporting the comment.
If the draft bill is enacted in its current form, provided a statement is opinion on a matter of public interest, it will be sufficient if a fact existed at the time the statement complained of was published that supports the opinion in question. It seems to follow from this that the author would not have to include details of the fact(s) in the comment.
Until recently, the reality has been that journalists relying on this defence must have set out key supporting facts in the allegedly defamatory article.
It also appears that an author can rely on facts that existed at the time of publication but of which they were not aware.
However, the consultation paper muddies the waters here, stating that it is “envisaged that a fact may be expressed in or implied by the statement and the courts will be able to apply this in a flexible way, taking account of the particular context in which the opinion was formed”.
Jack in the jury
Adam Speker, barrister, 5RB
For practical purposes the key clause in the draft bill relates to trial by jury.
The bill proposes that in future almost all, if not all, defamation claims will be heard by judges sitting without juries.
The removal of the right to trial by jury, even in this notorious area, is controversial and sensitive, but if implemented it will allow judges to manage cases more effectively from an early stage.
Indeed, taken together with clause one, a requirement on the claimant to prove substantial harm, and procedures under separate consideration for determining issues such as meaning at an early stage, there could be quite an impact on practice, procedure and – at least in the longer term - costs.
However, the proposals to place on a statutory footing some substantive defences could initially increase cost and unpredictability while the new statutory provisions are tested in the courts.
If the common law defence of justification is abolished, parties are likely to find themselves embroiled in litigating all over again with regard to the European Convention on Human Rights and jurisprudence, longstanding common law technical principles, such as the ’repetition’ and ’conduct’ rules, and those relating to ’separate and distinct’ imputations.
Sarah Webb, partner, Payne Hicks Beach
There will be more work for lawyers, but it will also mean a lot of frontloading of costs for clients. For example, changing the justification rule will not make it cheaper or easier for either party.
here is no balance.
This is a missed opportunity for everyone. The process could be made cheaper if courts ordered newspapers to publish apologies as part of remedies.
I would have preferred not to see substantial harm included, but would like to have seen a statutory approach to early resolution. Ordering an apology should become the way of dealing with smaller claims. Newspapers hate publishing apologies and that is hypocrisy.
I would also like to have seen some acknowledgment of falsity. There is nothing on early dispute resolution procedures in the bill. If we are going to have to take being bashed over costs, the give has to be that newspapers accept they have to publish apologies.