Government to lead libel reform with new Defamation Bill

The government has announced they will bring forward a Defamation Bill reforming existing libel laws in England and Wales by the 2011/12 parliamentary session.

Speaking in the House of Lords today, at the second reading of Lord Lester's Defamation bill, Justice Minister Lord McNally said the government would now "take the initiative" and lead a "constructive process of reform".

Lord Lester's bill, which had its first reading in May, includes seven main areas for development of current legislation, including: a modernisation of several defences; a requirement on claimants to demonstrate they have suffered real harm; a requirement on corporate claimants to prove financial loss; and for most cases to be heard by a judge alone.

Lord McNally told the House that Lord Lester's bill was a "formidable piece of work" which they would consult on over the summer recess.

"My hope is that Lord Lester will give me and my advisors time to assess what has been said today," he said.

"When the house returns in the autumn we will have made progress on a draft bill."

Responding to this announcement, Lord Lester said he was surprised: "I wonder if am alive at all or if I am in heaven, because I wasn't expecting this response. What he has said is extremely encouraging, [it] indicates an open mindedness to reform (…) and I'm sure that it's better for the government to have a draft bill (...) which can be looked at across both houses [Commons and Lords].”

The groups behind the Libel Reform Campaign said they were "delighted" by the government's move. All three political parties had added libel reform to their manifestos prior to the UK general election in May, but a change in government halted proceedings.

"Today the government listened to the 52,000 people who backed the English PEN, Index on Censorship and Sense About Science campaign to redesign our libel laws and have committed, for the first time in a century, to wholesale reform," says John Kampfner, the CEO of Index on Censorship, in a statement.

"We are delighted, but obviously we'll need to see how bold the government will be. It must stop libel tourism, cut the obscene legal costs involved and give cast iron protections to free speech."

Speaking to the House of Lords, Lord Lester said reforming the law would be matter of historical importance.

"The underlying issues are of constitutional importance and concern matters of public policy. Yet this is the first occasion in modern times on which parliament has had the opportunity to examine the substance of English defamation law. The bill builds on what is best in current law and brings the law up-to-date with the effects of electronic communication via the internet," he said.

Lord Lester's bill, which outlines a number of changes to current law, received praise across the House of Lords.

Baroness Hayter of Kentish Town, who was giving her maiden speech to the House of Lords, said protection on both sides was essential.

"We must protect the reputation of those unfairly vilified in the press, but also the need for free speech, not unfettered, irresponsible free speech," she said.

"I believe in that old adage that sunshine is the best disinfectant, often brought to us by campaigners and journalists who can use their talents - freedom of information provisions and talents - to bring us information of vital decisions taken behind closed doors, often by the rich and powerful.

"Our present libel laws are not fit for purpose and we have the chance to change this. There has to be a better balance. This bill seeks to do just that."

Hosting unmoderated comment
Other speakers highlighted areas they wished to be amended, or clarified, in future drafts of the bill.

Baroness McIntosh of Hudnall reinforced a point raised by internet forum site mumsnet, that the definition of an "innocent facilitator" online should clearly include hosts of third-party unmoderated comment.

"Caution is already the watchword. Can the Lord when he comes to reply say when there is any reason why this bill or any subsequent bill should not be amended to include this point?" she said.

In his later response, Lord Lester said mumsnet, and other such websites, would fall under the innocent facilitator category online, meaning they would not be held liable for defamatory content posted on their site.

Reducing libel costs
Another significant issue raised by numerous speakers was the matter of cost, described by Lord Back as the "elephant in the room" and its subsequent 'chilling effect', which Baroness McIntosh also highlighted.

"The costs of libel cases in England, have been found to be 140 times the European average," she said.

"These figures are enough on their own even without all other evidence before us, to indicate something is grievously wrong. We live in a world where avoiding the risk of libel action is more important than telling the truth."

While costs were one of the issues not within the scope of the bill, the majority of speakers agreed it was important to discuss and address.

"Libel actions are all about cash," Lord Thomas of Gresford added. "You have to be wealthy, destitute or mad to bring proceedings in this country. There are of course many problems to be solved, but hopefully these will be dealt with at another time."

Lord McNally said the government will be tackling this issue: "A large number of noble lords referred to this. We are urgently accessing the Lord Jackson report and coming up with proposals as quickly as possible. Both the Jackson and previous government's approach, clearly identified that this is a key issue in this area and one that we have got to get right.”

Public consultation
Baroness Kennedy of The Shaws, urged future developments of the bill to be given public viewing and consultation.

"Failure to take the public into account when reforming law doesn't usually make for law that has public confidence," she warned.

"There is an issue of getting balance, which I know is hard. But we need to look at how we can change the law so we protect journalists who have a regard for truth, accuracy and fairness, but distinguish them from those whose standards are not so high."

Baroness Buscombe, chairman of the Press Complaints Commission, welcomed the bill as "an important and frankly overdue" reform.

"We support the principle of applying coherence of a code of conduct as a defence. Rulings of the PCC have already been recognised by the courts. The PCC reacts speedily to fact and circumstance, as well as cultural change," she said.

“Self regulation performs a critical role in filling the gap left by the law.”

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