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Libel, reform and the public interest

LIBEL LAW and its reform were under discussion at London Freelance Branch's October meeting. Our speakers were libel lawyer Robert Dougans - he defended science writer Simon Singh against the British Chiropractic Association (BCA) - and Padraig Reidy, editor of Index on Censorship.

Robert Dougans, Chair Dave Rotchelle and Padraig Reidy; © Hazel Dunlop

Robert Dougans, Chair Dave Rotchelle and Padraig Reidy

Robert revealed there's one episode of South Park that hasn't been shown in England - even a planned South Bank screening was cancelled after threatened legal action. The episode ends with a cartoon version of a famous Hollywood actor promising "I'll sue you... in England!" Not only is our English libel law a joke, says Robert, but we don't get to see the joke.

Bloggers can be sued because of comment on their sites, and several bloggers were sued last year, warns Robert, who doesn't find that moderating comments to your site is much of a defence against libel. Libel cases can only be brought in the year after publication - but, currently,"each time something is published is a different cause of (legal) action," so publication on the internet can be "a couple million causes of action."

This goes back to the 1849 case Brunswick vs Harmer, in which the Duke of B sued the editor of the Weekly Dispatch - over an article that appeared in 1830. He sent his "man" from Paris to buy a back issue from the magazine's London office, 17 years after publication, to establish a "fresh publication" to get around the statute of limitations. The precedent has been applied to say that each viewing of a Web page is a new publication [All this will - should - change on 1 January 2014 with the coming into force of the Defamation Act. Ed]

No copy of the 1830 issue of the magazine over which the Duke successfully sued survives, so eager were the publishers to avoid it happening again.

The libel law climate is actually "made worse now by European Union law", says Roger. This establishes that the first court in which you are sued is the court of your own domicile: "unfortunately for UK journalists, that's here."

What is defamatory? Generally anything that lowers the opinion of the claimant "in the eyes of right-thinking members of society". The term "ugly" has been ruled libellous (as in the Steven Berkoff case), as has "having a big bum" (the Charlotte Cornwall case). But the "right-thinking members of society" bit meant that one plaintiff did not win damages for being called a police informant. By 1994, the Ashby v Times Newspapers case established that allegations of homosexuality were no longer defamatory, but that suggesting someone was secretly gay - and by implication leading a hypocritical double life - was still libellous.

There's also the "subsequent repetition rule." To say, for example, "Robert Dougans told me '[name redacted Ed] is an alien'" wouldn't help in a libel trial: you'd still have to defend the statement you had made. However, if you reported the above remark in a write-up of a meeting which you also state clearly was of "a group of people... making outlandish remarks... and no one would take seriously those remarks", you might have a defence if you are reporting the debate and not just "repeating the allegation".

Fair comment - "in English, rather than in Lawyer" - is when "you honestly hold an opinion on basis of facts known to you at the time of publication." As to what's comment and what's fact - if you're stating something for the record, explain that it's a fact. If it's an opinion - such as Simon Singh's opinion that BCA knowingly promotes bogus treatments - explain why you think that; that you've studied the efficacy of all treatments; and that by "bogus"you mean "doesn't work". Simon Singh won, in the end.

Then there's the Reynolds Privilege or Reynolds Defence, named from the 1994 Reynolds v Times Newspapers case arising from a 1994 Sunday Times article "Goodbye, Gombeen Man" on former Irish Prime Minister Albert Reynolds. ("Gombeen," the case established, is an Irish adjective applying to a small-time shyster.) There is a check-list for a Reynolds defence: did you give both sides of the story; did you contact the subject of the story to try to obtain their own point of view; and did you report allegations or turn them into fact, for a start.

Robert warns that "if you don't go into that detail, you can either pay me, or you can pay the client." And he notes that Reynolds defences are "not that successful in the trial courts", although you might eventually win one in the House of Lords.

Now even lawyers "are saying litigation is just to expensive" according to Robert: "It's not just the hourly rates that are the problem, it's the number of hours that's the problem - lots of witness statements, a need to write lots of letters." Huge amounts of paper are moved around at even a minor court hearing.

On recent proposals to push litigants to settle through mediation before a case comes to court, Robert says that "having lawyers fill out lots of paperwork and go to a hearing (before court) is great way of expressing costs." In conclusion, Robert advises journalists "don't ever write anything at any time, ever, about anyone."

Padraig Reidy identified how IoC, together with English PEN and the Sense about Science campaign "have been working on solutions" in recent years.

Padraig was pleased to see that about half the audience had already signed the Libel Reform Campaign petition. The petition had over 50,000 signatures by the time of the last election, so the campaign "managed to get all three major parties to commit to reform libel laws." The upshot is Minister of Justice Lord McNally's Draft Defamation Bill (a Joint Committee reported back on this soon after the October meeting.) Lord McNally "told us in meeting a few months ago that he thinks his ministry will be judged on success of this bill... we're going to push him on this very, very hard."

Also underway is the "worrying" Leveson Inquriy . "Whilst libel laws are not part of the Leveson Inquiry," there's plenty of "something must be donnery" around in the wake of the phone-hacking scandal, says Padraig: "phone tapping, expenses, and libel (are) in danger of all being thrown into one big media overhaul, which will see more restriction on the press." Arguments about the costs of mounting a defence against libel are "very particularly not mentioned in the government's bill."

IoC were preparing to present to the Leveson Inquiry "broadly saying we do not see that libel reform should get lost in this whole current scare about the press. We may call on people to write to MPs again, and we may have to activate the whole process again," Padraig said.

What reforms are IoC looking for? "A stronger public interest defence - as in the States, if someone is a public figure, you're more entitled to talk about them. If someone is a public official or elected... in the States, they've got to prove malice to be able to sue - here you don't. Padraig would also like to see a system like the Australian one, "where large corporations cannot sue, even in something like Simon's case - the BCA would've been too big a corporate body to bring a libel case."

Last modified: 08 Nov 2011 - © 2011 contributors
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