Free thinking?

The press is campaigning for a change in libel law, claiming freedom of expression to be the highest goal. But Jonathan Coad asks: is it really the public's interest they have in mind?

Even for a lawyer who believes in the value of free speech and who makes their living defending media clients from libel proceedings, the campaign by some of the media to change our libel laws look like no more than attempts to evade a proper system of, to borrow a sporting phrase, 'keeping them honest'. As these obviously self-serving opinions find ready slots in the editorials of some of the Fleet Street titles, it seems necessary to redress the balance and to challenge the claim that the current law of libel is an undesirable and unwarranted restriction on the freedom of speech.
The outcome of the criminal trial of Jeffrey Archer has been the source of many complaints about the law of libel. An editorial in The Observer blames the dismissal of the editor of the Daily Star on Archer's earlier successful libel action. The Observer's editor cites the case as a reason for the law to be changed. No self-interest there then.
The editorial goes on to add that the law of libel “quite ludicrously favours the rich, the famous and – on too many occasions – the mendacious”. The newspaper's evidence cites only Jeffrey Archer and Robert Maxwell. The Observer concedes that Archer's victory in that libel action was an aberration, but in the case of Robert Maxwell, some of the braver among the press did stand firm against him. So what does all this teach us about the free press and the need for some form of restraint over it?
The threat of writs from those such as Archer and Maxwell put the media to its mettle. Had their journalists done a sufficiently good job to get the story out? And is the newspaper in question (editor and owner) prepared to place its money on the line to protect the value of free speech? Whatever, blaming the law of libel serves a clear economic purpose.

“The empirical evidence strongly suggests that the media, whatever it says, is hardly reduced to an anodyne toothless creature by the law of libel”

The Times has recently been devoting large parts of its editions to a campaign to “loosen the constraints for the public's right to know which Britain's libel laws place on responsible journalism”. This quote, from the leader article in the newspaper's 25 May edition, expresses its frustration at the adverse adjudication by Mr Justice Gray in the libel action against it by Grigori Loutchanski.
The newspaper complains of the narrow terms of the newly-developed defence of qualified privilege, and objects to the presumption that the claimant's reputation is “spotless, and that any article complained of is false unless otherwise demonstrated”. The Times declares: “These presumptions offend against the right of free speech and against the practice of journalism that deals with matters of public importance.” Lofty words, but do they bear scrutiny?
There are three main points of challenge to the Fleet Street campaign. The first is the law itself. How adverse is the law to the press? The empirical evidence strongly suggests that the media, whatever it says, is hardly reduced to an anodyne toothless creature by it. A cursory read of the print press in particular gives the lie to this assertion. Politicians and other public figures are routinely accused of serious misdemeanours, but how many actually sue? Even when they do, they hardly enjoy universal success: ask Jonathan Aitken, Neil Hamilton, or Jeffrey Archer.
Contrary to the impression given by at least some of the 'outraged of Fleet Street' outpourings, the courts cannot, except in highly exceptional and exceedingly rare circumstances, prevent publication of libellous material on application by the subject of it. The law only restrains repetition of libel when its falsity has been thoroughly tested at trial.
There are a number of other perfectly viable defences on which the media may, and commonly does, rely, which do not oblige it to prove the truth of even seriously defamatory material. Is it really unreasonable to ask rich and powerful media corporations with every modern means of information-gathering at their disposal, to prove, merely on the balance of probabilities, the truth of any libel that they publish, particularly where publication of that libel will affect the reputation of its subject? A recent change in the law obviates the need for the media to do even that where the matters at issue are of genuine public concern.
The defence of qualified privilege was recently extended by the House of Lords in the action brought by Albert Reynolds against The Times. The extension gives the media a defence when it reports a matter of public interest, libellous or not, when it can show that it was justified – for example, that it has been properly researched and the subject has been given a proper opportunity to respond.
A layman might think that this is adequate for most purposes, but the press has been strangely reticent to inform the public of these and other legal liberties it enjoys when truly engaged in “responsible journalism”.
A second point is the relative logistical might of the media. It enjoys the advantage of not only very deep pockets to see off a libel claimant, but also the personnel, expertise and technology to garner information of sufficient quality to publish and to defend libel proceedings. There are few MPs or other prominent individuals who could fund a libel action to trial upwards of £75,000, let alone bear the financial consequences of losing. And there is no legal aid for libel actions, so there is, in effect, no means whatsoever of defending the reputation of the vast majority of the population from allegations in the media – allegations which can ruin lives, careers, marriages and families. Newspaper editors are not the only victims in this struggle.
The third point of challenge to the media mantra for the relaxation of the libel laws is the very freedom that such a change is supposed to enhance. The real value of freedom of expression lies in providing the general public with a conduit through which it can receive information to form opinions and make valued judgements about matters of concern. In order for that freedom to have any value, the information must be of sufficient quality so as not to be worthless to its passive rather than active beneficiaries. One essential purpose of the libel law is that it is a sifter, albeit an imperfect one, of truths and lies. If the law is rendered powerless to regulate the media at all then the quality of what we read in newspapers or watch on television will decline still further, insofar as the information (in the true sense of the word) they dispense.
The main battleground has been the issue of the burden of proof in libel. At present, against the prevailing approach of the world's legal systems, the law in this country obliges the media defendant to prove the truth of any defamatory allegations, that is if it cannot take advantage of one of the other various defences. The argument is that this prevents the press from publishing material which it would otherwise publish, and that the public – the only proper beneficiary of the right to free speech – is the poorer for it.
The media claims that the public should be allowed to decide what is and is not true, but it is never asked how it is to do this if the media on which it relies for information has no incentive to keep that information accurate. Comparisons are made with other forms of civil action, such as one for injury to body rather than reputation, where the claimant is required to factually prove their case. Why should it be any different in libel law?
The first answer is that the effect of such a relaxation would inevitably mean that the right of the individual to protect his reputation would be undermined. That right should be protected. The law also protects the valuable commodity of truth, which is the second answer. The media needs a strong law of libel to maintain the quality of its factual content.
Since we have – as is proper in a capitalist system – a commercially funded media (excepting the BBC), being held to account in reality means the media being made to pay for its mistakes or misdemeanours. Rather than a system where the media is regulated by the state, we have one where if the media gets it wrong to the detriment of an individual or corporation then the media must compensate. That is if the prospective claimant has both the will and means to mount a challenge. The impact of the law of libel on the media is therefore purely economic, and relatively trivial set against its vast sums of turnover and profit. It does, however, provide the only incentive not to improve its circulation/viewing figures by wrongly trashing the reputation of those in the public eye.
The campaign fought doggedly by some parts of the media is aimed at shifting the economic burden of its mistakes and misdemeanours from itself to those whose lives or businesses it impacts. The media wants to improve its profit margins. Employing outstanding investigative journalists and giving them the time and resources to get their copy right is expensive, as is compensating those whom it has caused to suffer loss in its profit-making endeavours. The value of having high awards for libel damages is that it puts pressure on the media to be accurate. It makes more sense for the media to either research its output carefully or to hold back stories where the publisher is not able to establish the veracity of the story, even to a 51 per cent probability when challenged to do so. Without this there would be nothing to stop the media from profiting at the expense of others' reputations.
It is important to see this lobbying for what it is – an attempt by a group of commercial organisations to change the status quo to its own ends. We have a free press which occasionally – in fact very rarely – suffers a sanction when failings on its part cause another to suffer loss. If the balance were to be shifted to make these occasions still rarer, then the public's right to freedom of expression would be diminished. The information in communications that this freedom was designed to protect would inevitably be of a lesser quality, undermining the whole value of the freedom itself.
Jonathan Coad is a defamation and privacy partner at the Simkins Partnership