Libel reform watch [updated – even Wayne Rooney is affected]
7 June 2010
Update 08/06/10: Is there no limit to the damage which restrictive libel laws can do? A Wayne Rooney biography, and possibly England’s football World Cup chances, are the latest victim of threats of libel action, says Afua Hirsch in the Guardian:
I’m not saying that information about Rooney’s background is up there with other public interest revelations that have been caught by libel law – lying politicians or innocent people dying from toxic waste, for example. On the other hand, if the Daily Star is to be believed, the book is fundamental to England’s World Cup performance. The paper claims that the book, which I haven’t read, contains “embarrassing material on the England hero” and “is threatening to derail England’s World Cup dreams.”
The law of libel and defamation sets the limits of freedom of expression. It is therefore unsurprising how many conflicting views there are on the Government’s proposed libel reforms. To keep up with this fast-moving debate, we are introducing a new feature: Libel reform watch.
We have been following the debate with interest, as have the excellent Inforrm’s Blog, which (unlike this blog) is written by specialist media lawyers. We intend to continue doing so, as any reforms the Government eventually decides on will have a significant impact on the often conflicting human rights to freedom of expression, Article 10, on the one hand, and the right to privacy, Article 8, on the other.
The debate has some key players. It is unsurprising that the national media, which have a large stake in any reforms affecting what they can and cannot print, are getting stuck in. Be prepared for plenty more column inches and editorials before the reforms emerge.
Also vocal, of course, are the the sometimes demonised libel lawyers, whose lucrative no-win-no-fee structures are at risk. They say that tinkering with the fees system will score short term political points whilst doing long term damage to access to justice for prospective claimants.
Today’s press includes debate on the seemingly diminishing right to trial by jury (see our previous post on this issue). Libel and defamation trials were until recently the last bastion of civil (i.e. non-criminal) trials which still have juries. But in what may be a sign of things to come, a libel action brought by Michael Jackson’s former bodyguard is to proceed without a jury. The Times have covered the story, and Inforrm have posted that the decision is to be appealed this week.
Inforrm’s blog has reprinted an article by William Bennett, a barrister specialising in defamation law. He supports the idea of jury-less defamation trials, as they will keep costs down and open up verdicts to scrutiny:
Trial by judge has positive advantages. A judge must give a reasoned judgment; a jury need only give a bare verdict. A judgment can be scrutinised by an appeal court whereas a jury verdict can only be set aside if perverse (in which case another jury will usually have to be sworn in order to determine the same issue). Decisions by judges are subject to scrutiny in a way in which jury verdicts are not. Would we want to dispense with openness as to how a decision had been reached and replace it with inscrutable jury verdicts?
Step forward the Lib Dem peer, Lord Lester, and his private members’ defamation bill, which has just been published. The bill is not perfect; it does nothing about the burden of proof. But it is a wide-ranging and thoughtful attempt to rectify many of the glaring and rather shaming features of the present. In particular, it introduces a new defence of “responsible publication on matters of public interest” – which would go beyond the present doctrine, as developed in the cases of Reynolds and Jameel, of responsible journalism – a defence which, as Lord Steyn argued, was well intentioned but which has failed to defend important reporting in the public interest.