Is libel reform now really possible?
There is so much wrong with the law of libel that statutory intervention is required.
Whilst aspects of libel abuse can be dealt with by decisions of the appellate courts, or by changes to court procedure or by amendments to statutory instruments, the deeper problems are really such that primary legislation is necessary.
For example, there needs to a public interest defence which goes beyond the journalistic and procedural defence of Reynolds to any good faith publication by any person (and not just journalists) on a matter of public interest, such as in respect of health, medicine, and public safety (whether fact or comment).
There also needs to be a bar on corporations bringing suits for defamation; there is simply no good reason why corporations can sue for this tort when, say, public authorities cannot.
Both of these reforms need primary legislation.
The prerequisite for such statutory intervention will be engagement by the Ministry of Justice. For, without the MoJ’s involvement and support, the prospect of any parliamentary time for consideration of a libel reform bill is minimal. This would even be the case with some heroic backbench MP or peer promoting their own libel reform bill.
This is why yesterday’s announcement by Jack Straw, the Justice Secretary, is so significant.
Canny politician as he is, he could have just made a vague supportive noise; but instead, and to his credit, he has committed resources of the MoJ to publish a report and even to soon prepare a draft bill.
Any published draft bill will of course not be perfect, but it will be something which can be considered and improved upon.
For even if the initial draft provisions do not include an appropriately strong public interest defence or a bar on non-natural persons bringing defamation claims, then these are amendments which can be pressed for during the bill’s passage through the legislative process.
Now the next step will be for the MoJ to secure sufficient parliamentary time in the next session.
However, this cannot be taken as a given, especially in what is likely to be the busy first session of an incoming government. Unfortunately, libel reform is also not yet as high on the Conservative Party’s list of priorities as is it is for the Liberal Democrats and, following Jack Straw’s late conversion, the Labour Party.
So, even with yesterday’s welcome announcement, the libel reform campaign will still be heading towards failure, unless the new government commits sufficient parliamentary time for the MoJ to carry through a libel reform bill.
And, once the incoming government does commits itself to providing such parliamentary time, then libel reform will finally move from being a possibility to a probability.
Allen Green writes the Jack of Kent blog and is a supporter of the Libel Reform campaign
Readers' comments (7)
Mike from Ottawa | 24-Mar-2010 4:18 pm
While I'm no particular fan of corporations, I'm not sure that legislating that even the most deliberately false and defamatory things may be said of a corporation without it's being able to take any legal action is really necessary.
To make up an example, if someone was going about saying that baby food made by 'Mike from Ottawa Baby Foods Inc' was made with actual babies, I'd think it a bit unfair that MFOBFI was unable to take any legal action. It's also hard to see why Mike from Ottawa, carrying on business as MFOBF, could sustain an action in defamation while MFOBFI could not when it seems to me identical issues and interests are involved.
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dw | 24-Mar-2010 4:56 pm
@Mike:
It strikes me as reasonable for a corporation to be able to sue for actual proven economic damages (such as loss of business) for malicious libel. However, it is ridiculous for a corporation to be able to sue for non-economic damages in libel. Corporations don't have feelings!
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Niklas Smith | 25-Mar-2010 0:00 am
@Mike: At least in English law there is a separate tort of malicious falsehood: http://en.wikipedia.org/wiki/Malicious_falsehood
As I understand it, the view of libel reformers is that corporations should still be able to sue for malicious falsehood, but not for defamation. This seems to me to be a sensible compromise.
(A question to Allen: in the UK public authorities cannot sue for defamation; can they still sue for malicious falsehood?)
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Mike from Ottawa | 25-Mar-2010 1:05 am
@dw
"Corporations don't have feelings!"
Indeed they don't, but then libel isn't about isn't about hurt feelings. That would be more in the line of the tort of intentional infliction of mental suffering.
Libel is about reputation which is an important asset in a business. Damage to the reputation of a business occasions exactly the same loss in regard to reputation when the business is a corporation as it does if the business is a sole proprietorship, for example, a lawyer practicing on her own.
And damages are not necessarily the important factor but rather the ability to obtain an injunction to prevent further damage to reputation.
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gb | 25-Mar-2010 1:12 am
@dw:
They do have reputations, though, and libel seeks to protect reputations not "feelings".
Mr Green simply does not establish that private companies should be treated the same as public authorities. There is a clear policy ground for refusing a right to sue for defamation to public authorities: it is central to democracy that public bodies can be discussed fully. If democracy is the right to take part in communal living then the agencies that regulate communal living must be fully open to interpretation in any way possible. Their financial fortunes must come second to this.
Private bodies are different. By definition we do not all have an equal interest in the very nature of their individual existences. They exist for profit, and so harm to their reputation goes to the core of their purpose. In the absence of other compelling policy grounds their reputations can be vindicated.
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dw | 25-Mar-2010 5:17 pm
@gb:
But why should a corporation's "reputation" be worthy of protection? My suggestion is that, while a person's reputation may be deserving of protection for a variety of reasons, a corporation should be able to sue for loss of reputation only insofar as it leads to tangible economic loss.
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gb | 26-Mar-2010 0:44 am
@dw
I suppose you've got a point- a person's reputation is intimately connected to their ability to have a meaningful role in society and that has to be protected. But I would contend that a) businesses, if taken as unconnected to the ability to live a 'good life' ought to benefit from libel protection anyway and that b) business is intimately connected to a 'good life'.
A) Forcing a business to prove damage does seem a little harsh to me- could it be so simple as pointing to a downturn in sales or would it need something more qualitative?
In that case would businesses be allowed to sue for the full cost of their losses? This could strengthen the power of big companies in 'libel' cases.
B) And this would leave a problem in the case of sole-owner businesses: 'libel' against the business in de facto libel against the owner, but with less protection for the victim. This argument could even be extended to the CEOs of major companies.
I'm not sure we should protect the reckless slanderer at the expense of the damaged company: the ability to earn a living is also closely connected to the ability to live a good and meaningful life as it gives us the opportunity to provide for ourselves and to be productive for society. This can be impaired by libel.
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