Changes ahead?

Throughout 2009 the libel laws of England and Wales were the subject of intense focus and criticism. With the clamour for reform growing, this year we could see some significant changes. Indeed, reform has already begun with the recent abolition of criminal libel and sedition.

England is perceived to be a claimant friendly jurisdiction in which to bring libel claims, primarily due to the presumption of falsity, the lack of a requirement on a claimant to prove specific loss and the availability of conditional fee agreements.

A number of attempts to redress the balance have been made over recent years including through the development of the Reynolds qualified privilege and fair comment defences.  However, some say that this is not enough.

The recent joint report published by the interest groups English PEN and Index on Censorship claimed that English libel law “was designed to serve the rich and powerful, and does not reflect the interests of a modern democratic society”.

The proponents of reform  – primarily the media and NGOs – focus on a number of different areas of the law. The PEN/Index report makes several recommendations including widening the scope of the public interest and fair comment defences and capping the costs and damages involved in libel cases, whilst making an apology the chief remedy.

In addition, the report calls for the shifting of the burden of proof so that a claimant will be obliged to demonstrate damage and falsity.

The report also addresses the much-vented issue of ‘libel tourism’ by suggesting that an English court may only hear libel cases where 10 per cent of copies of the defamatory publication are published in this jurisdiction.

Westminster has accepted the need to consider reform. The House of Commons Culture, Media and Sport Select Committee spent much of 2009 investigating press standards, privacy and libel. 

It took evidence (in public) from defamation practitioners, journalists, editors and victims of defamatory publications. Its report is expected shortly, following which the government will set up a working group to consider reform further. It has also been reported that Lord Lester is preparing a Private Member’s Bill on defamation reform.   

In parallel the Ministry of Justice consulted on two key issues last year: costs in defamation proceedings and the multiple publication rule.

The costs consultation has resulted in the implementation of a new pilot costs management scheme for defamation and malicious falsehood claims in the RCJ and Manchester District Registry until 30 September this year.

Parties have to exchange, file and regularly update detailed budgets for estimated costs and solicitors must liaise monthly to check the budget is not being exceeded.  Costs management conferences have been introduced in order to monitor expenditure. 

It looks as if the costs rules will change more fundamentally following Lord Justice Jackson’s recommendations in his report on civil litigation costs generally (published on 14 January) that success fees and ATE insurance premiums should cease to be recoverable.

For defamation and related claims, he recommends that damages be increased by 10 per cent and the introduction of qualified one way costs shifting in favour of claimants.  He also suggests that the pre-action protocol should require (rather than desire) meaning to be set out in the Letter of Claim and that the question of whether jury trials should be retained be considered.

The outcome of the second consultation – which closed in December last year – could have a significant impact on internet libel cases.  Currently the multiple publication rule (established in the Duke of Brunswick case in 1849) provides that each publication of defamatory material gives rise to a separate cause of action.

In internet claims, this means that each “hit” on a website constitutes a new libel. Reformers argue that this rule renders online publications unfairly vulnerable to claims long after initial publication and undermines the purpose of the one year limitation period for defamation claims. They want a single publication rule to be introduced.

Others argue that the rule should be retained, pointing to the fact that often a claimant only becomes aware of a defamatory publication more than one year after it was published.

There is no time in this article to explore the increasing interest the senior judiciary have and continue to take in developing the law of defamation.

Next up is an appeal in February in which no less than Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley are listed to hear, the British Chiropractic Association –v Simon Singh(2009).

Whilst the reformers are gunning for change, there are also a significant number in favour of maintaining the status quo.

They argue that whilst freedom of expression is important, equally so is reputation which can easily be destroyed by the media. Strong libel laws have forced the UK media to report accurately and, as a result, UK broadsheets are arguably more credible than their foreign counterparts.

Whilst most accept that costs in defamation cases are disproportionate, many suggest that strong case management, rather than costs capping, is a better way to address this issue.

Whatever side of the fence they sit on, 2010 is going to be an interesting year for defamation lawyers.

Rob Hunt is a partner and Anna Bateman is Of Counsel in the media and entertainment team at Herbert Smith