Govt bill proposes public interest journalism defence

Anyone who states an honest opinion or responsibly exposes issues of public interest will be able to do so with confidence under a radical shake-up of libel laws, Justice Secretary Kenneth Clarke said today.

New defences will be brought in to protect those writing about issues of public interest, the truth and honest opinion and the common law defence of justification will be scrapped.

Courts will also have to decide whether England and Wales is the most appropriate place to bring an action in an effort to crack down on so-called libel tourism.

Clarke said: “The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society.”

The draft Defamation Bill “will ensure that anyone who makes a statement of fact or expresses an honest opinion can do so with confidence”, he said.

“However it is never acceptable to harm someone’s reputation without just cause, so the Bill will ensure defamation law continues to balance the needs of both sides and encourage a just outcome in libel cases.”

But controversial issues for libel reform campaigners – including whether to give internet service providers greater protection and whether specific limits should be placed on a firm’s ability to bring a defamation action – were left out of the Bill.

Instead, the Government launched a consultation to seek views on the issues.

Any statement must have caused “substantial harm” for a libel action to be brought under the new plans, the Ministry of Justice said.

The new defence of truth would replace that of justification and a defence of honest opinion would replace that of fair comment.

The draft Bill puts the law into “plain English”, Clarke said.

The presumption that juries will be used in defamation cases would also be scrapped.

The move would mean the end of jury trials for defamation, “unless there’s an exceptional case”, Clarke said.

Juries were still one of the best ways to tell which one of two witnesses was telling the truth, he added.

The bill does not address the issue of high costs in media law cases taken out under no win, no fee deals which are said to lead to publicatons being held to ransome by lawyers.

Clarke said: “The draft dill does not directly deal with issues relating to costs in defamation proceedings. However, a fundamental concern underlying these reforms is to simplify and clarify the law and procedures to help reduce the length of proceedings and the substantial costs that can arise.

“The proposals that the Government intends to take forward subject to the results of our recent consultation on Lord Justice Jackson’s proposals for reform of civil litigation funding and costs including conditional fee agreements will have a significant impact on reducing costs in civil proceedings generally, and proposals which will shortly be put forward in relation to civil justice reform will encourage and promote alternative dispute resolution and settlement.”

Reacting to publication of the draft bill the Libel Reform Campaign said: “We welcome where the draft bill contains some of the reforms we set out, including:

  • A more effective and clearer defence of truth (justification)
  • A clearer and wider defence of honest opinion (fair comment)
  • The extension of statutory qualified privilege to benefit NGOs and scientific conferences
  • A single publication rule with a one year cut off

“But it comes up short in a few important places:

  • The suggested public interest defence needs more work to properly protect citizen critics
  • There is no commitment to counter the censorship of online discussions by web-hosts and internet service providers who are liable for content they publish
  • There is no commitment to restrict corporations’ ability to sue in libel
  • These measures are going to be open for consultation over the next few months. “

Leading media lawyer Caroline Kean from Wiggin, who represented journalist Tom Bower in his successful libel battle with Richard Desmond, said: “Of course I welcome the reform of a law which has been exploited by highly resourced litigants to the detriment of the public interest, and completely fails to recognise the realities of publishing in a digital world.

“This bill is the start of a long overdue update of an antiquated and out of date approach to protecting the reputation and privacy of individuals at the expense of free speech and the public’s right to know. It is essential that we have a clear and properly functioning process to give proper balance to competing rights.

“Clinging to antiquated models, sky high costs and the deployment of super-injunctions have been a feature of reputational litigation for too long – and shame this country’s professed commitment to free speech. ”

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