Proposals for reforming the libel laws contained in the Government’s draft Defamation Bill should go further to give greater protection to freedom of expression, a joint committee of MPs and Peers declared today.
Action should also be taken to reduce the expense of libel actions to reduce their chilling effect and make it possible for ordinary people to obtain access to legal redress, the Parliamentary Joint Committee on the Draft Defamation Bill said in a report.
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Defamation law should also be easier for ordinary citizens to understand – whether they were defending their reputations or their rights to freedom of speech – and the law should also adapt to the culture of modern communications, which could be “instant, global, anonymous, very damaging and potentially outside the reach of the courts”, the report said.
Reforms were also needed to reduce costs by making mediation the norm, simplifying procedures, and enabling judges to decide major issues in cases at a very early stage, before the parties started racking up massive bills.
The committee welcomed most of the reforms contained in the Draft Defamation Bill, but recommended that some further steps should be taken.
Committee chairman Lord Mawhinney said: “Defamation proceedings are far too expensive, which is a barrier to all but the richest.
“Our recommendations should help minimise the reliance on expensive lawyers and the courts, bringing defamation action into the reach of ordinary people who find themselves needing to protect their reputation or defend their right to freedom of speech. They are based upon firm principles, which I am sure the Government will support.”
The committee’s report welcomes the reform in the Defamation Bill to end the presumption that libel trials should be heard with a jury – and says that while a judge should still be able to order a jury trial, the circumstances when this can be done “should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake”.
It also calls for the test of whether a libel case should be allowed to go ahead – whether the material published caused “substantial harm” to someone’s reputation – should be tightened to require “serious and substantial harm”.
The report calls for greater protection for scientists and academics writing in peer-reviewed articles, and for publishers in reporting on their debates at conferences.
The press should also have absolute privilege to protect it from being sued for defamation over a fair and accurate report of what is said in Parliament.
Communications between MPs and their constituents should be protected by qualified privilege – a defence which can be defeated if a claimant can demonstrate that the author of an allegedly defamatory statement was acting with malice – the report says.
The committee supports the Bill’s introduction of a “single publication rule” – that is, a rule that the one-year limitation period within which a claimant can sue over an allegedly defamatory statement runs from the day the material is first published.
At present, the law says that every time an article is downloaded or accessed from the internet amounts to a new publication, meaning a would-be claimant has another year in which to launch a libel action – a major problem for those running online archives.
The report also says: “Further, the Government must clarify that merely transferring a paper-based publication on to the internet, or vice versa, does not in itself amount to republishing in a ‘materially different’ manner, unless the extent of its coverage in the new format is very different.”
This move would be intended to protect newspapers which published articles in printed editions and subsequently upload them into archives which are available online.
The committee says it agrees with the Government’s intention to promote the early resolution of defamation claims by allowing judges to decide key issues in the case at an initial hearing.
But Government proposals for changing procedures “cannot be seen as radical and do not go far enough towards reducing costs to the extent that legal action will be realistically accessible to the ordinary citizen”.
Instead, mediation or arbitration should be seen as the norm, and in those cases which do reach court key issues should be decided at an early stage.
On internet issues, the report outlines a new notice and take-down procedure for the internet to give those who are defamed online a quick and easy remedy, as well as give better protection to online publishers by giving internet hosts the protection of the law as long as they act responsibly by following the new procedure.
Any anonymous postings would have to be removed as soon as there was a complaint, unless their authors were prepared to identify themselves or there is an overriding public interest in publication.
But the law should also be reformed to promote a cultural change so that, in time, the credibility of anonymous postings – and the damage they could cause – would be limited.
The committee also calls for it to be made more difficult for companies to use their financial muscle and the threat of court action to silence critics by introducing a requirement that they would have to obtain a court’s permission to sue for libel and prove the likelihood of “substantial financial loss”.
The test should be based on whether there had been or was likely to be a substantial loss of custom because of the allegedly defamatory statement.
But it would exclude “mere injury to goodwill” and expenses incurred in reducing the damage, for example the cost of a public relations campaign, as well as a fall in its share price.