Libel reform debate hots up as new Government takes advice on reform

28 May 2010 by Adam Wagner

Set the ball rolling

The recent announcement of the review of libel and privacy law by a high-profile panel has led to a flurry of conjecture, comment and proposals. The new Government has pledged to reform the law of libel, but what shape will the reforms take?

The committee, which was announced last month, is being led by Lord Neuberger, the head of the Court of Appeal, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial “super injunctions”.

The new Coalition Government have pledged to “reform libel laws to protect freedom of speech“. Cases involving libel, defamation and super-injunctions have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).

We have previously posted on the super injunction which was imposed and then swiftly lifted on press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair. Another controversial recent case was the Simon Singh libel action brought by the British Chiropractic Association. which raised issues of freedom of scientific expression and led the Court of Appeal to robustly attack the chilling effect of such actions.

In response to the calls for reform, Lord Lester of Hern Hill has drafted a libel reform Private Members Bill, which can be found here. The Inforrm Blog has provided a brief commentary on the bill, concluding that

Our overall verdict on first reading is that the Bill contains some solid work and interesting proposals.   But it is not radical or wide ranging and does not “rebalance” or “recast” the law of libel.  If anything it will add a further layers of complexity and increase costs.   It is not a substitute for a thoroughgoing review of the existing law.

Former Law Lord Lord Steyn has also provided his opinion, at the annual Boydell Lecture, which Inforrm reports was “very much in line with the arguments of “libel reformers” although, we anticipate, more radical than Lord Lester’s proposed bill.

Zoe Margolis, who recently won a libel action against the Independent on Sunday for calling her a “hooker”, writes in the Guardian that the reforms should not restrict the current routes to justice open to potential litigants. She says

after my own experience of suing a national newspaper there is one law I now believe should remain intact: not limiting the percentages of costs lawyers receive as a premium – to balance the risk (eg losing) they take on – which are added to their fees when they win a case on a conditional fee agreement (CFA) (“No win, no fee”) basis. Libel is prohibitively expensive – and this obviously needs to change – so if you’re of limited financial means you’ll have no ability to pursue a claim without a CFA

It is difficult to predict which of the many suggestions for libel reforms the new Government will choose. However, a clue may be found in Lord Neuberger’s recent lecture on the topic, where he said “Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so“.

In light of this, it would be surprising if the reforms were not in favour of freedom of expression over privacy. However, in a call to restrict the fees of libel lawyers, this may end up limiting the access to justice of those who feel they have been defamed.

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