Draft Defamation Bill - Joint Committee on the Draft Defamation Bill

Draft Defamation Bill - Joint Committee on the Draft Defamation Bill Contents

1 Introduction

Policy Background

THE LAW GOVERNING DEFAMATION

1. The law governing defamation is crucial to the proper functioning of any democratic society. It represents the dividing line between two established and powerful rights: freedom of expression on the one side; the right to reputation on the other.[1] Any slight shift in the balance between these two competing rights and the procedures governing our legal system can have far-reaching consequences for the way in which we conduct public debate.

2. In essence, the law exists to provide a means of redress for someone whose reputation has suffered unjustifiable harm by the publication of defamatory information. There is no statutory definition of what is 'defamatory', nor is one provided by the draft Defamation Bill that this Committee has been established to consider. The courts generally treat a statement as defamatory when it "lowers a person in the estimation of right-thinking members of society generally".[2] There are two types of defamation: libel, when the defamatory statement is in writing;[3] and slander, when it is spoken.[4] Both individuals and organisations (with some exceptions) can begin defamation proceedings. Someone accused of defaming another person has a variety of defences available, a number of which are discussed in this Report.

3. Defamation is substantially governed by the common law. Statutory intervention has been rare: the last Act exclusively concerned with defamation was passed in 1996. This followed a review of some aspects of defamation law by the Committee chaired by Sir Brian Neill and updated a previous statute dating from 1952. There was a comprehensive review of defamation law in 1975 by the Committee chaired by Mr Justice Faulks. Its report covered many of the issues in the Government's current consultation but none of the recommendations were implemented by the Government of the day.

ORIGINS OF THE CURRENT DRAFT BILL

4. Recent years have seen increasing levels of concern expressed about the law relating to defamation, both outside and inside Parliament. A wide range of interest groups, including publishers, journalists and scientists, have joined forces in the Libel Reform Campaign to lobby for reform. Debate has also expanded in legal and academic circles, prompting a number of Government reviews. The Ministry of Justice (MoJ) conducted a consultation on reducing costs in defamation proceedings in 2009, which led to some limited changes and the establishment of pilot schemes on reducing costs.[5] It also conducted a separate consultation on the single publication rule. The Master of the Rolls established a review of civil litigation costs in 2009 (the Jackson Review), the conclusions of which were then subject to Government consultation. The MoJ set up a Libel Working Group in March 2010 to explore specific issues such as libel tourism and a public interest defence. Most of the proposals of the Jackson Review were accepted by the Government and are awaiting implementation.[6] The Libel Working Group did not always find a consensual view but its work served to inform the Government's thinking on the draft Bill.

5. Inside Parliament, the Culture, Media and Sport Select Committee identified in March 2010 a number of problems with the operation of existing defamation law in the context of a wider look at press standards.[7] At the 2010 general election all three major political parties expressed support for reforming libel laws. The Coalition Agreement undertook a review of these laws to "protect freedom of speech".[8] Perhaps the most significant driver of reform was the Defamation Bill introduced by Lord Lester of Herne Hill in May 2010. He neatly summed up the main criticisms of the current law as follows:

Lord Lester is a distinguished human rights lawyer who has been active in the field of libel law for many years. His Bill forms the basis of much of the Government's own draft Bill, although the two Bills adopt different approaches on some issues, such as the treatment of corporations. The evidence we have received from Lord Lester has greatly informed our own consideration of the draft Bill and we are extremely grateful for his thoughtful contributions to our work.

THE DRAFT BILL

6. The Government's draft Bill was published in a consultation document on 15 March 2011. It is a response to the reviews referred to above and an attempt to achieve the right balance between freedom of speech and the protection of reputation.[10] As well as inviting comment on the relatively short draft Bill, the consultation document also raises a number of other issues which may be covered in the final Bill presented to Parliament. These include proposed procedural reforms aimed at reducing the length and cost of libel actions; questions relating to the ability of organisations to sue for libel; and the application of the law in the modern online environment. In summary, the operation of the civil law, including defamation claims, has been much reviewed in recent years, often at the Government's instigation, leading to some concern that there has been review at the expense of action. The publication of the draft Bill represents a welcome indication that long overdue legislation is finally to be delivered. We hope that this intention is realised.

Our approach to the draft Bill

7. We wanted to consider the additional issues raised in the consultation as well as the draft Bill itself. In view of their complexity, we sought and obtained from Parliament an extension to our original timetable in order to do so.[11] We listened to views from a wide range of interested parties. In response to our call for evidence, we received 66 written submissions; we also had access to the submissions made to the Government's own consultation exercise. Over a number of weeks we took evidence from many witnesses, including newspaper journalists and editors; writers and publishers; libel lawyers; academics and interest groups; current and former Government law officers; Lord Lester of Herne Hill; the Lord Chancellor, the Rt Hon Kenneth Clarke, and the Minister with responsibility for the Bill, the Rt Hon Lord McNally; the Master of the Rolls, Lord Neuberger and the Judge in charge of the jury and non-jury lists, Mr Justice Tugendhat.[12] We are extremely grateful to all those who took the time to give evidence to us, which we have considered very carefully. In the interests of producing a succinct and easily-read report, we have not sought to quote and dissect the evidence in great detail, but instead refer the reader to the submissions themselves, which are published separately, to see the relevant arguments in full.[13] We would also wish to place on record our thanks to the staff from both Houses who have served this Committee, Chris Shaw, Kate Meanwell, Simon Fuller and Rob Dinsdale; and also our appointed specialist adviser, Mr Andrew Caldecott QC, for the support they provided to our consideration of the draft Bill.

THEMES EMERGING FROM THE EVIDENCE

8. A huge range of opinions and suggestions for reform were made to us in the course of our work, from which a number of ideas and concerns recurred consistently. Many of these ideas overlapped and complemented each other; sometimes they pulled in opposite directions. Perhaps the broadest consensus formed around the need to reduce the cost of libel litigation.

9. The cost of civil litigation generally tends to be high, but libel proceedings are particularly expensive. One study has shown that the cost of action in England is 140 times that of the average in other European countries.[14] The complexity of the law and lack of clarity over its interpretation in the courts were identified as strong contributory factors to the high costs. Much time and money can be devoted to complex legal arguments over the meaning of words and the available defences. We heard that there is too much scope for the use of delaying tactics and that the procedures for speedy resolution are not strong enough.

10. It became apparent from the evidence we received that the key to reducing costs lies not only in reform of the law but, more significantly, in changes to the way it operates in practice.[15] New mechanisms and streamlined procedures are required to enable parties to settle disputes more quickly and therefore cheaply. Without procedural reforms, any changes made by the Bill will have little impact on the problems that have been identified with defamation law. There was widespread agreement too that a rapid public correction, explanation or apology is often the remedy most valued by the claimant, and generally preferable to a lengthy legal case and consequent financial compensation, which too frequently would not meet the total costs of legal action. There was general support for the promotion of quick and proper apologies. It was also emphasised that nothing should threaten the right, guaranteed under the European Convention of Human Rights (ECHR), for seriously defamed individuals to seek redress from the courts if they choose.[16]

11. We received strong evidence that the combination of the high costs of legal action and uncertainty over the outcome of libel claims had led to a degree of defensive self-censorship, particularly by journalists, authors and scientists. The fact that some witnesses were only prepared to tell us their experiences on a confidential basis illustrates the extent to which people can feel intimidated. Furthermore, it was argued that the way in which the libel laws are used by some, particularly wealthy individuals and well-resourced businesses, serves to inhibit legitimate comment and, more fundamentally, undermines the right to freedom of speech.[17] We were persuaded that this financial inequality has allowed the wealthy to use bullying tactics in threatening costly legal action in disproportionate responses to innocuous or legitimate criticism. These are the components of the 'chilling effect', which our defamation laws sustain.

12. Witnesses argued that the public interest is not being well served if legitimate material is being withheld from publication for fear of legal action and its attendant costs. The public interest is itself a key theme in the evidence we received. Defamation laws should encourage responsible journalism in the public interest and should equally encourage publishers to pre-notify those they intend to criticise, but this raises key questions around the definition of responsible journalism: how far should journalists be required to go to establish what is printed is true, and what are the remedies if it is not? For many, the overriding public interest lies in establishing the truth, or at least in the wide dissemination of accurate information on issues of public interest. This requires adequate protection to allow uninhibited participation in scientific and other debate. Others argued that regard for the truth also requires strong and effective remedies to deter libellous statements, in recognition of the immense difficulty—perhaps impossibility—of restoring reputation, once damaged.

13. Another major theme running through the evidence is the importance of the law being accessible to the ordinary person in respect of exercising the right to free speech and protecting their reputation. The potentially huge costs of libel claims make it difficult for people of ordinary means to protect their reputations or to defend themselves against defamation claims.[18] Recent high profile cases concerning privacy injunctions seem to suggest that the assertion of a right to privacy has become the preserve of the wealthy alone. The right to reputation is apparently heading in the same direction. Indeed, the overlap between privacy and defamation was highlighted by many witnesses, with the former often taking over from the latter as the preferred means of legal action, notably for celebrities. This is in spite of the clear distinction between an infringement of privacy—revealing a truth which the claimant wishes to keep private—and defamation—telling an untruth about the claimant that damages his or her reputation. Public concern about press responsibility and standards has been increased by ongoing revelations about the unacceptable conduct of certain journalists and the quality of the Press Complaints Commission's performance. We note that the Government's response to the recent very public clash between a privacy injunction and parliamentary privilege was to establish a committee to consider these issues.[19] This does not absolve the Government of its responsibility to develop a coherent and principled vision for what should be the interaction of the rights of privacy, reputation and freedom of expression rather than finding itself buffeted by successive tabloid or online revelations and controversial court decisions.

14. To help combat the chilling effect, and improve accessibility, there were loud calls for greater clarity in the law itself, and greater certainty in the way the courts apply it. Yet there is another side to the accessibility concern. Some argued that our libel laws make our courts too accessible for libel claims. It was suggested that wealthy or high spending foreign litigants had exploited our libel laws to pursue cases with little relevance to this country. There were also concerns that the law allows too many trivial cases to go to court. The difference between the serious and the trivial is a vital one in the context of defamation and is at the heart of our attempts to reduce costs by improved procedures, which we explore in Chapter 3.

15. The need for the law to keep pace with developments in society was a further thread running through the evidence we received. Many questioned the suitability of a law designed for the written and spoken word in an age of a rapidly changing communication culture. The internet has enabled all of us to have instant access to an international audience from a country of our choosing. Social networking sites have permitted instant global communication on matters of everyday conversation. In their judgments, judges have considered whether some such online communication should be regarded more like conversation than the written word, in accordance with which it would be treated as slander rather than libel.[20] In some respects the online environment makes defamation more damaging: whereas newspapers are quickly thrown away, online archives will ensure that defamatory material will instantly be flagged up on an internet search. Not only does this last until taken down, it can be easily and instantly spread around the world. One well-publicised accusation, even if subsequently found to be untrue, can destroy a reputation.

CORE PRINCIPLES

16. In broad terms, we welcome the intentions behind the draft Bill, but we believe it needs improvement in many areas and that the Bill presented to Parliament will need to address the wider concerns that we identify, some of which are raised in the consultation document. In considering the draft Bill, we have faced the challenge of reconciling the sometimes contradictory strands of argument outlined above. To provide a coherent approach for our examination of both the draft Bill and the issues raised in the consultation document, we have settled upon four key principles, which we believe will best meet the interests of the public. When confronted by the many different options presented by the provisions of the draft Bill and the evidence relating to them, we have wherever possible been guided by one or more of the following four principles in making our recommendations.

Freedom of expression/protection of reputation: some aspects of current law and procedure should provide greater protection to freedom of expression. This is a key foundation of any free society. Reputation is established over years and the law needs to provide due protection against unwarranted serious damage;
Reducing costs: the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. Early resolution of disputes is not only key to achieving this, but is desirable in its own right—in ensuring that unlawful injury to reputation is remedied as soon as possible and that claims do not succeed or fail merely on account of the prohibitive cost of legal action. Courts should be the last rather than the first resort;
Accessibility: defamation law must be made easier for the ordinary citizen to understand and afford, whether they are defending their reputation or their right to free speech; and
Cultural change: defamation law must adapt to modern communication culture, which can be instant, global, anonymous, very damaging and potentially outside the reach of the courts.

17. We have explored the main issues presented by the draft provisions and reached conclusions which are, to the greatest extent possible, in line with our core principles. But we have not restricted ourselves to the draft Bill before us. Where necessary, we have focussed on the consultation issues to develop new proposals which we believe are in line with the Government's objectives. Following our principle of accessibility, we have tried to make this Report easily understandable to the layman; the detailed impact of our recommendations on the draft Bill's provisions we have collated in a separate section at the end of Chapter 2. It is for the Government to revise the draft Bill and we urge it to present a revised version before Parliament without delay.

Parliament and freedom of expression

18. In considering the balance between the rights to freedom of expression and reputation, we recall that when Parliament considered this balance in the context of the courts granting injunctions against publication, it amended the Human Rights Act 1998 to require the courts to "have particular regard to the importance of the Convention right to freedom of expression".[21] We share the view that this provision has not had the effect in practice that many in Parliament envisaged. The rulings of the European Court of Human Rights have established that reputation is protected under the Article 8 right to a private life, and that this right should be given equal weight to the Article 10 right to freedom of expression when evaluating conflicts between the two rights. We accept that judges here must act compatibly with the European Convention on Human Rights and take into account rulings from Strasbourg. However, we also note that it is the application of defamation law in this country that appears to international publishers the most likely threat to their freedom of expression.[22] We would like to see the expressed will of Parliament on freedom of expression upheld, to the full extent that this is possible, in cases where the competing rights are finely balanced.[23] This matter will no doubt be given further consideration by the Joint Committee on Privacy and Injunctions that was established in July 2011 to examine, among other issues, the balance between privacy and freedom of expression. We recommend that the Government has particular regard to the importance of freedom of expression when bringing forward this Bill and developing proposals in its broader consideration of the law relating to privacy.

1 The right to freedom of expression has for many years been recognised under the common law and is now protected by Article 10 of the European Convention on Human Rights; the right to reputation is recognised as being encompassed within the right to a private and family life under Article 8 of the Convention. Back

2 See, for example, Skuse v Granada Television Ltd [1996] EMLR 278, per Sir Thomas Bingham MR at 286. Back

3 Or is so treated by statute: e.g. statements on radio or television. Back

4 A libel (or a slander) is an unlawful defamatory statement. Many defamatory statements are lawful because they are protected by the available defences. Back

5 Ministry of Justice, Controlling Costs in Defamation Proceedings, CP4/09, February 2009. Back

6 See paras 88-89 for a discussion on the impact of these proposals on defamation law. Back

7 Culture, Media and Sport Committee, Second Report of Session 2009-10, Press Standards, Privacy and Libel, HC 364-I. Back

8 The Coalition: our programme for government, May 2010, p 11. Back

9 Lord Lester of Herne Hill, "These disgraceful libel laws must be torn up", The Times, 15 March 2011. Back

10 Ministry of Justice, Draft Defamation Bill Consultation, Cm 8020, March 2011, Ministerial Foreword, p 3. Back

11 The Joint Committee was established on 31 March 2011 and asked to report by 19 July. Both Houses subsequently agreed an extension until 31 October. Back

12 A full list of witnesses is included at p74; a list of written submissions is published in Appendix 2. Back