Tuesday, 22 June 2010

Lord Lester's draft Defamation Bill is launched

Yesterday I had the good fortune to attend an event celebrating the launch of Lord Anthony Lester QC's Defamation Bill (pdf here), held at London's Free Word Centre. Here are my thoughts...

Lord Lester got together a team of senior lawyers to produce the draft legislation following a string of high-profile libel cases that demonstrated the chilling suppression of free speech affected by English and Welsh libel law - not least Singh vs. BCA, a case that collapsed so spectacularly in April. The result is a detailed Bill aimed at restoring the balance between free expression and the right to a reputation, currently so skewed towards the latter.

As a non-lawyer (a significant minority at today's launch), I really appreciated the openness that Lord Lester showed in discussing the strengths and weaknesses of the Bill as it stands - no grandstanding, no hyperbole, just an understated and assured argument for more robust protection in the face of libel action.

The Bill begins by establishing a so-called Reynolds defence, laying out the conditions of a defence in the case of matters of public interest - interestingly, applying such a defence
irrespective of whether the publication [being complained of] contains statements of fact or inferences or opinions.
There then follow clauses establishing defences of honest opinion and truth - sections that codify for the first time the right fair comment.

Other interesting clauses clarify that persons acting as conduits or intermediaries for potentially defamatory statements would not be held liable - a relief for bloggers and forum administrators alike. Also included is a rebuttal of the so-called Duke of Brunswick rule, whereby every time a defamatory statement is reproduced a new libel is committed - which in the internet age is simply preposterous.

In the discussion afterwards there was some concern as to what didn't make it into the Bill, particularly from Professor and media legend Roy Greenslade, as to the omission of a reversal of the burden of proof - which currently falls upon defendants in libel cases. Lord Lester's answer was that in part the burden would in fact shift with this Bill, with claimants required to prove substantial harm - or in the case of corporations suing, of actual financial loses. In all fairness Lord Lester did say that in a rational world the burden would indeed be reversed, but that such a radical reform would be unlikely to pass - so the Bill represents pragmatic reform and not just idealism. Still, many libel reform activists would like to see the burden of proof reversed entirely, and this may well prove to be an area that gets revisited.

I asked if the clauses on honest opinion and truth were likely to reduce libel law's chilling effect outside the courts, particularly given Lord Lester's admirably liberal intention not to be overly prescriptive and to provide a broad framework that the courts could utilise - which is fine, only my concern is that its the costs and anguish involved in even getting to court that cause the chill on commentary (viz. Channel 4's recent losses in their Michael Jackson documentary case, raised by C4's lawyer at this meeting) - but Lord Lester was clear in his answer, that these clauses are designed to put off frivolous suits and give courage to the Simon Singhs of this world who wish to stand by what they write. I sincerely hope this is how it turns out.

In sum then, what we have is an excellent starting point for the long overdue and fundamental overhaul of our archaic and illiberal defamation laws. With the second reading scheduled for July 9th, the process to enshrining our right to free speech is well under way, and with Lord Lester leading the charge, it falls to all us libel campaigners to continue to press for comprehensive reform - the goal is within sight, so the hard work must go on.

No comments: