libelreform.org

EXECUTIVE SUMMARY

After a year-long Inquiry, English PEN and Index on Censorship have concluded that English libel law has a negative impact on freedom of expression, both in the UK and around the world. Freedom of expression is a fundamental human right, and should only be limited in special circumstances.Yet English libel law imposes unnecessary and disproportionate restrictions on free speech, sending a chilling effect through the publishing and journalism sectors in the UK. This effect now reaches around the world, because of so-called ‘libel tourism’, where foreign cases are heard in London, widely known as a ‘town named sue’.The law was designed to serve the rich and powerful, and does not reflect the interests of a modern democratic society.

In this report, we cut through the intimidating complexity of English libel law to show how the legal framework has become increasingly unbalanced.  We believe that the law needs to facilitate the free exchange of ideas and information, whilst offering redress to anyone whose reputation is falsely or unfairly damaged.Yet our inquiry has shown that the law as it stands is hindering the free exchange of ideas and information. We repeatedly encountered the same concerns, expressed by lawyers, publishers, journalists, bloggers and NGOs, who have no wish to abolish libel law, but know from experience of its chilling effect on legitimate publication.In response to their concerns, which are set out below, we offer the following recommendations to restore the balance between free speech and reputation:

1. In libel, the defendant is guilty until proven innocent

We recommend: Require the claimant to demonstrate damage and falsity

2. English libel law is more about making money than saving a reputation

We recommend: Cap damages at £10,000

3. The definition of ‘publication’ defies common sense

We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

4 . London has become an international libel tribunal

We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

5. There are few viable alternatives to a full trial

We recommend: Establish a libel tribunal as a low-cost forum for hearings

6. There is no robust public interest defence in libel law

We recommend: Strengthen the public interest defence

7. Comment is not free

We recommend: Expand the definition of fair comment

8. The potential cost of defending a libel action is prohibitive

We recommend: Cap base costs and make success fees and ‘After the Event’ (ATE) insurance premiums non-recoverable

9. The law does not reflect the arrival of the internet

We recommend: Exempt interactive online services and interactive chat from liability

10. Not everything deserves a reputation

We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood

In order to facilitate a thorough democratic debate about this crucial subject, we recommend that these measures should be incorporated in a Libel Bill, which would simplify the existing law, restore the balance between free speech and the protection of reputation, and reflect the impact of the internet on the circulation of ideas and information.