Comment: How will the Defamation Bill protect free speech?

20 May 2012 by Rachit Buch

As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.

The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:

• Create a test of “serious harm” for statements to be considered defamatory.
• Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
• Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
• Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.

The need for change

Libel laws exist to protect people’s reputation; it is not surprising that they restrict freedom of expression. The specific aim of defamation law is to restrict expression that harms people’s reputations without lawful defence. The problem that had emerged, however, was that the law restricted more than just attacks on reputation: academic criticism, scientific debate and investigative journalism – both in print and in particular online – were being “chilled” by the fear of libel cases, which are expensive and lengthy.

The protection of Article 10 rights has been an area where the European Court of Human Rights has emphasised the margin of appreciation for Member States. In MGN v United Kingdom, on balancing Article 8 and 10 rights, the Strasbourg Court stated (§142):

The balancing of individual interests, which may well be contradictory, is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention.”

Further, the Supreme Court recently left the Reynolds defence for public interest journalism unchanged in principle. However, the campaign’s popularity – it achieved rare political consensus in the UK,  capitalising on the USA legislating against English libel cases, and, perhaps even more shocking, prompted the arts and the sciences to work together – demonstrated appetite for change.

So would a budding investigative reporter, or bad science blogger, be more fearless in publishing their work if the Defamation Bill became law?

Positive steps

Two major aspects of the Bill are likely to have a positive impact on freedom of expression: one is the general impression created by the reform, and the second is specific to scientific and academic publications.

The Bill makes a number of changes to when and where libel claims can be brought:

• Clause 8 introduces a single publication rule, abolishing the centuries old rule that each time a publication is made (including a website accessed) a new cause of action arises;
• Libel tourism is targeted by clause 9, restricting actions against residents of non-Member State countries; and
• Clause 1 provides that a statement is not defamatory unless it has caused or is likely to cause “serious harm”.

These provisions clearly show that the aim of the reform is to achieve greater certainty and finality in the law. The fact that this reform has taken place may, in itself, give people more confidence in publishing their work. It shouldn’t be underestimated that simply placing the defences on a statutory footing makes it easier for people to look up them up. So the fact that the Bill contains these provisions may have reduce the chill that was cause for concern.

Secondly, scientific and academic publications gain specific protection: peer-reviewed publications, reviewers’ criticisms and reports of such publications gain stand-alone privileged status. Reports of scientific and academic conferences are brought within existing qualified privilege provisions of the Defamation Act 1996.

Though scientists might not be clogging up the courts at the moment, the concern highlighted here by journal Nature should not be forgotten:

For every case that comes to court, say campaigners for reform, there are many more in which scientists who lack the resources to fight just quietly back down, or worse, censor themselves even before publishing. The provisions noted will help reduce this.

Potential problems

Public interest

Many of the Bill’s provision may end up having a limited impact on free speech. Firstly, clause 4 effectively replicates the Reynolds defence on a statutory footing and some will question whether it does enough to protect public interest journalism. The defence may be an onerous one to make out, as there will be strong argument that the courts should consider each of the factors set out in clause 4(2), and fresh case law will be required to see how the courts interpret the importance of each factor, and the relevance of previous case law. It is hard to think that the blogger imagined feels liberated by this checklist of demands being put onto the statute books.

However, given that the same clause appeared in the Draft Defamation Bill, it seems unlikely that the clause will morph into a wider public interest defence.

Uncertainty

Second is the potential uncertainty some of the clauses. For example, will the serious harm test be more onerous than the current need for a tort to be real and substantial, as set out in Jameel v Dow Jones [2005] EWCA Civ 75, or the “threshold of seriousness” considered in Cook v Telegraph [2011] EWHC 1519 (QB)? Will the single publication rule protect online archives, considered in Loutchansky v Times [2001] EWCA Civ 1805 – or will online versions  of articles be considered materially different? Will the defences for website operators (clause 5) or non-authors etc (clause 10) simply lead to satellite litigation and expensive preliminary hearings? Who counts as a website operator?

Online

Third is the effect on online publication. A detailed analysis by Graham Smith is available here. There is clearly greater protection in the Bill for online entities. However, some of this protection may overlap (an operator of a website is most often not the author or editor, and differences in how these defences work may lead to confusion), and it isn’t clear how these provisions will interact with the E-Commerce Regulations and the Defamation Act 1996, both of which offer protection for online entities. The question of whether companies like Google or Amazon will continue to be sued, as they both have been recently, remains to be seen. There is a strong argument that the seething mass of online publication needs a radical regulatory response.

Conclusion

The fierce battles over reforms to legal aid and the NHS show that government bills can be changed significantly before passing. However, there has been a far greater head of steam built up for this Bill, with the Draft Bill and numerous Committee reports, for something similar to happen. Barring a renewed mass campaign, amendments to the Bill will be minor.

At present, in terms of enhancing freedom of expression, it seems the government has done a good job, but could do better. The aim may be to encourage a gradual decline in the use of libel to suppress criticism, perhaps to be compensated by a burgeoning law of privacy – something encouraged by Jack Straw MP at the Leveson Inquiry (see link from p.33 onwards). But this might be the problem. The common law is best at adapting to social changes over time: if a statute tries to mimic this then it could lead to confusion or irrelevance. Further, in relation to online expression in particular, boldness is required to keep pace with change. Though the Bill is a good thing, news of which was welcomed by campaigners, it is unlikely to lead to the explosion in free expression for which some were hoping. Perhaps, as is not often the case, a Paul Daniels quotation is appropriate: you’ll like this, not a lot, but you’ll like it.

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Read more:

• Libel on the internet: Christian author takes on Dawkins and Amazon
• The rising cost of free speech: Reynolds, contempt and Twitter
• Times can use leaked Police documents in libel defence