Analysing the main changes in the private member’s bill, Marsh says it “tackles some of the current laws’ deficiencies head on” but “body swerves others”.
Biggest swerve is that this bill doesn’t do what many newspapers and freedom of information campaigners wanted – reverse the burden of proof (…) On the other hand, the bill proposes that, unless it’s decided otherwise, a libel action should be heard by a judge sitting without a jury.
But his biggest concern is that public views may not be as easily heard as the media’s.
Isn’t there the possibility, at the very least, that those who have no self-interest in all of this believe that that ‘chilling effect’ is no bad thing; that the media shouldn’t be able to trash reputations in the heat of the journalistic moment; and that the possibility/threat of legal sanction might, in the wider public interest, possibly do more good than harm?
“Think again: the recent campaign for libel reform is not based on careful consideration,” he argues.
The real crux of the problem is not the law but the excessive costs of deploying it – and Parliament should abolish the right to jury trials in defamation. Such reform, particularly if implemented in conjunction with the proposals set out in Lord Justice Jackson’s recent review of civil litigation costs, would dramatically cut the cost of defamation litigation. In turn this would promote freedom of speech in a way which would not compromise the rights of those defamed.
The new Liberal-Conservative coalition government in the UK has made assurances that it will extend the scope of the Freedom of Information Act and review libel laws.
Libel reform has been the subject of an ongoing campaign by Index of Censorship and English PEN. All three main political parties pledged their support for reforming current libel legislation before the election, but there were concerns that a change in government could threaten the campaign’s progress.
Says the report:
The promise of a review of libel laws was expected as it was an assurance made by each of the leading parties in the build up to the election – however, it doesn’t go as far as the commitment made in the Liberal Democrat manifesto to place the burden of proof back onto the claimant in certain libel cases.
The Times has a good round-up of recent libel cases, including that involving a British freelance journalist, who “will appear in the High Court to defend a libel claim being brought by an Indian ‘holy man'”.
The case will be the latest test of libel tourism: Jeet Singh is an Indian national who lives in India and is thought never to have visited Britain.
The case is also the latest in a flurry of recent activity on the libel front: today there will be a ruling with wide implications for bloggers and online media.
The Conservative party is committed, if elected, to undertaking a fundamental review of the libel laws with a view to enacting legislation to reform them. This reform could best be done by means of a separate Libel Bill and this is the preferred approach for us.
The Libel Reform campaign “is believed to be the first campaign by an NGO this year to get a manifesto commitment from all three major parties,” reports Index on Censorship.
Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.
As a small, online publisher, we are acutely aware of the ‘chilling effect’ that current libel legislation and the excessive cost of libel trials in the UK can have on freedom of expression and journalism. We support the Libel Reform Campaign and the changes it proposes, which advocate journalists’ right to criticise and question those in power and positions of influence.
…They should only have malicious falsehood where they must prove malice or recklessness and show actual damage. Trafigura, Tesco, Barclays, BCA, NMT, Nemsysco, etc, etc. The Lib Dems are proposing this in addition to the other measures and not tentatively!
Berlins had argued that Straw’s backing of the case for libel reform was not strong enough, especially on who should have the burden of proof.
[T]here’s no word from Straw – not even “consider” – about one of the most unjust aspects of the existing law, which obliges a newspaper raising the defence that its allegations were true to prove it, instead of making the claimant prove their falsity. That burden of proof, in fairness, should be reversed.
The Libel Reform campaign, a coalition of Sense About Science, Index on Censorship and English PEN, yesterday said it had one major political party left to get on side: the Conservatives.
But following justice minister Jack Straw’s pledge of Labour support in parliament yesterday, Henry Bellingham, the Conservative shadow justice minister, said that if his party formed the next government they would give the issue priority – with a draft Bill by the end of 2010, according to the latest email update from the campaign.
“He indicated that the Law Commission would be asked to report urgently on necessary. The commitment to legislation from Bellingham is a major milestone,” the campaign’s organisers reported today.
Investigative journalist Bruce Page assesses calls for libel law reform and finds that they might be misguided, in his view.
“Journalism is intended to be harmful and journalists who don’t like risk should go elsewhere.”
One of the problems is that journalism spends too much time on “insubstantial doomsday scenarios” and not enough developing knowledge to expose “self-defamatory” claims, in science for example.
Making it easier for nervous people to publish accusations isn’t going to change any of that. Lawsuit economics still give excessive advantage to wealth and power. Introducing no-win-no-fee litigation has reduced that old abuse – and brought some fresh ones into play. Let’s reform them. But the law itself isn’t broke. Don’t fix it.