BRIEFING NOTE: Libel Reform Campaign response to the Culture, Media & Sport Select Committee report
The Libel Reform Campaign led by English PEN, Index on Censorship and Sense About Science welcomes the report by a group of influential MPs on the Culture, Media and Sport select committee as “a great starting point to ensure an unprecedented overhaul of our libel laws”.
The campaign is also delighted that John Whittingdale MP, the Chair, acknowledged the concerns outlined by Sense About Science in their “Keep Libel Laws Out of Science” campaign, and of Index on Censorship and English PEN in their ‘Free Speech Is Not For Sale’ report.
After the Libel Reform Campaign galvanised 35,000 supporters and persuaded 206 MPs to sign a Parliamentary Early Day Motion, the Select Committee put forward the following recommendations:
Libel Tourism
The Committee accepted the campaign’s concerns over ‘libel tourism’ and that too many cases are heard in the High Court in London, with the recommendation that there should be ‘additional hurdles’ before jurisdiction is accepted in our courts. The Committee took a strong stand on this issue saying, “the reputation of the UK is being damaged by overly flexible jurisdiction rules”.
Jo Glanville, the Editor of Index on Censorship, said:
“The Committee has echoed our concerns that we’re in danger of becoming a global free speech pariah, with some US states passing laws to block the decisions of English judges. For MPs to recognise our reputation in the UK is being damaged by libel tourism is a big step forward. We are hopeful the Ministry of Justice will take action on this.”
Corporations
The Committee recommends that in cases involving corporations, “it would be fairer to reverse the general burden of proof”. It further recommends that there should be a new category of tort entitled, “corporate defamation”, which would require a corporation to prove actual damage to its business.
Jonathan Heawood, the Director of English PEN and co-author of the ‘Free Speech Is Not For Sale’ report said:
“I’m delighted that the Select Committee has made brave proposals on limiting the ability of corporations to bully charities, journalists and writers. Recognising that corporations have huge resources at their disposal, the recommendation to alter the burden of proof and make corporations prove that allegations made about them are untrue, will help stop the appalling abuse of our courts by major corporations.”
Public Interest Defence
The Committee endorsed the campaign’s calls for a stronger and more accessible public interest defence after hearing evidence from scientists, writers and human rights activists who expressed doubts over the reliability of using this defence in court.
Tracey Brown, the Managing Director of Sense About Science said:
"We welcome the committee's recognition of the harmful effects of UK libel
laws on the science and medical community. The proposal for a clear public interest defence is an important step toward the far reaching reform that is needed."
Fair Comment
The Committee accepted that the “fears of the medical and science community are well-founded”, and proposed the government, “take account of these concerns in a review of the country’s libel laws, in particular the issue of fair comment in academic peer-reviewed publications.”
The campaign welcome the Committee’s acceptance of the seriousness of the problem, especially in light of the recent Simon Singh and Ben Goldacre libel cases; but has raised “concerns that ghettoising fair comment in peer reviewed journals would not have helped Simon Singh in his libel case whatsoever, it’s important that a fair comment defence is available to everyone, not just for academic discussion out of the reach of ordinary people.”
Costs
With law firms like Carter-Ruck charging £400 an hour ‘base rate’, the Committee’s recommendation that there should be “maximum hourly rates that can be [possibly] recovered from the losing party in defamation proceeding”, is strongly welcomed by the campaign led by English PEN, Index on Censorship and Sense About Science.
Furthermore, making ATE premiums “wholly irrecoverable” will reduce costs in many libel cases by £65,000 - £100,000. The campaign is: “encouraged by the fact our campaign to abolish the unfair imposition of ATE premiums on the loser in libel trials, most often the defendant, has been taken up by the Committee.”
The recommendation that success fees recoverable from the losing party should be limited to 10% of costs with the excess negotiable between solicitor and client, in our view, “gives the client an incentive to minimise costs, which should be broadly welcomed.”
The political significance of the report
John Kampfner, CEO of Index on Censorship said:
“206 MPs have signed Parliamentary Early Day Motion 423 calling for libel reform. The Select Committee report by John Whittingdale MP will add to the rising chorus of voices within Westminster calling for reform of our outdated libel laws that benefit no-one except £400 an hour lawyers.”
All three major political parties are looking into reforming our libel laws:
As a result of the campaign, Jack Straw has set up a working party to look into reform of our libel laws.
Liberal Democrat leader Nick Clegg has committed his party to wholesale reform of English libel law and praised the campaign saying: “The Libel Reform Campaign is doing excellent work is leading the way in calling for this outdated and unfair system to be changed."
The Conservatives are seriously considering the proposals made by campaign.
Some key facts about English libel law:
- our libel laws are stacked in favour of claimants; of 154 libel proceedings in 2008 identified in the Jackson Review (of 259 taken to the High Court), zero were won by defendants. The most expensive libel action cost £3,243,980 and the average cost for the 20 most expensive trials was £753,676.95.
- The average cost of a libel trial in England & Wales is 140 times the European equivalent.
- Media companies are becoming now less likely to fight libel cases to a verdict; in 2008 61% of libel proceedings were settled by a “statement in an open court” this has risen from 21% in 2004.[1]
- As the recession has deepened more corporations are suing each other in a “race to the bottom” to bolster their public profiles. The number of libel cases involving a business suing another business tripled last year.[2]
- In a survey of 600 GPs,[3] half believed that English libel law was “‘restricting open discussion of the potential risks of drug treatment”.