26 Mar 12 | Uncategorized
The following letter appeared in today’s Guardian (26/03/12)
The legal aid sentencing and punishment of offenders bill will have its third and final reading on Tuesday in the House of Lords. Parliament is therefore on the cusp of passing a law that will grossly restrict access to justice for ordinary people in privacy and libel cases, without even any saving to the public purse. We strongly object to the passing of this unjust measure and urge you to amend it before it is too late.
Of course we are the first to recognise that legal costs in many cases are too high and also that some reforms are justified, but the bill includes changes to conditional fee (“no-win, no-fee”) agreements and to after-the-event (“no-win, no-premium”) insurance schemes which will effectively make them non-viable in libel and privacy cases, where financial damages to a successful claimant are far too small to cover these costs as the bill currently proposes they should. So only the rich could take on a big newspaper group. A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy or corporate libel claimants. Although the aim of reducing costs is very laudable, the position of lower and middle income claimants and defendants in these types of cases has simply been ignored.
Even if a lawyer will take a high-profile case without a “success fee” that compensates for the risk of losing some cases, or even does the case pro-bono, there is still the enormous risk to defendants and claimants that if they lose, they will have to pay the other side’s costs. A person of ordinary means in that position basically has the choice of living with injustice or risk losing their home.
Lord Justice Jackson recognised this problem when he proposed an alternative to insurance in his review but the government – without explanation – has not accepted his recommendations in these cases.
In practice this means that in future ordinary defendants, like Peter Wilmshurst, Hardeep Singh and Heather Brooke will also be unable to get support for legal action taken against them, often by large institutions with deep pockets trying to silence them. That would be bad news for science and medicine, for free religious debate and for transparency in the public interest. And victims of the tabloid press like Christopher Jefferies, Bob and Sally Dowler, Kate and Gerry McCann and Robert Murat will not be able to take legal action against the tabloids for hacking into their phones, for false accusations and for gross misrepresentation. Newspaper corporations with big legal departments and their own insurance would scare people off by the prospect of facing a million pounds worth of costs if they lose. This is obviously both wrong and unfair to the ordinary citizen with a good case.
The bill simply fails to consider people like us. Unless a change is made on Tuesday, the government will have succeeded only in uniting both claimants and defendants from modest backgrounds – together with their supporters – against the government and much of the good will generated by the setting up of the Leveson inquiry and promising a libel reform bill will be lost.
We urge you to take action now to amend the legal aid, sentencing and punishment of offenders bill to specifically remove libel and privacy cases, or you will stand accused of being unfair to ordinary people and giving yet more power to large media corporations and corporate libel bullies.
Christopher Jefferies
Gerry and Kate McCann
Peter Wilmshurst
Robert Murat
Hardeep Singh
Nigel Short
Zoe Margolis
21 Mar 12 | Uncategorized
The UK Supreme Court has today upheld the “Reynold’s Defence” claim made by The Times in the libel case of Flood v Times Newspapers Limited (background here).
The judgment has been welcomed by many (read Siobhan Butterworth at Guardian Law), and it’s certainly gratifying that journalists acting in a responsible manner attempting to get to the bottom of a difficult story have eventually been vindicated, but this is not a moment for unqualified celebration.
If anything, it simply demonstrates the severe limitations of the Reynolds Defence. Only if you’re a newspaper with deep pockets, willing and able to take the case all the way to the Law Lords (as in the case of Jameel) or today’s Supreme Court, can Reynolds work.
The Reynolds Defence picks out 10 key criteria in judging whether a publication can be said to be acting in the public interest. These are:
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of the information, and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
These are hurdles which may be applicable to people operating in well-resourced newsrooms with proper processes in place. But as we have seen in recent years, an increasing number of libel cases have been taken against comment writers, human rights groups and bloggers who are simply not in the same position to make the necessary steps to fulfil Reynolds. Furthermore, as Lord Hoffman has acknowledged, the Reynolds Defence can be seen as a series of obstacles as much as guidelines. And the steps do not, in and of themselves, constitute a public interest defence.
Index, as part of the Libel Reform Campaign, has been persistent in calling for a strong public interest defence. The Defamation Bill as it currently stands merely codifies the Reynolds Defence, making it likely that it will become even more difficult for smaller media organisations and individuals to use the defence. The Libel Reform Campaign has argued for a fairer and simpler public interest defence where the defendant would be required to demonstrate that publication is on a matter of public interest. If the defendant is successful in proving this, then he or she would only lose the case if the claimant was able to show that publication was irresponsible. If the Defamation Bill makes it to the Queen’s Speech, then the next hurdle will be to lobby for a true public interest defence to which everyone has access, not only those who can afford to take a case all the way to the Supreme Court.
16 Mar 12 | Leveson Inquiry
England’s libel laws have turned the country into “liberty’s enemy”, Observer columnist and author of You Can’t Read This Book Nick Cohen said at last night’s launch of Index and English PEN’s final report of the Alternative Libel Project.
“We virtually invented freedom of expression, but any scoundrel can go to the High Court,” Cohen said.
He was among a host of libel reform campaigners speaking at yesterday’s event at London’s Inner Temple, reflecting on the strides made in the campaign and reaffirming the need for change in England’s defamation law.
The Alternative Libel Project, the result of a year-long inquiry looking into alternatives to resolving libel claims through the High Court, has recommended the use of quicker and cheaper methods to tackle the chilling costs of bringing a claim forward. The report advocates capping the cost of a libel claim at the average UK house price and allowing judges to protect ordinary people from having to pay the other side’s costs if they lose.
Cohen gave an impassioned defence of press freedom, noting that the proliferation of online publishing meant libel reform was no longer only an issue facing reporters. “Everyone is a journalist,” he said.
He praised the campaign’s efforts but urged supporters to look at the “cold climate into which this legislation is emerging”, comparing asking to do the press a favour to asking for a pay rise for MPs after the expenses scandal.
Science writer Simon Singh argued that issues of libel reform were not “old problems”, revealing that, in addition to battling a libel claim brought against him by the British Chiropractic Association, in 2010 he also received another threat over remarks he had made about climate change. The fear of libel, Singh said, was “widespread”.
Opening the event, Justice Minister Lord McNally echoed his statement made at yesterday’s Westminster Legal Policy Forum, saying that he would be “extremely disappointed” if a commitment to legislate of defamation was not part of the Queen’s Speech in May.
“This is not the end, not even the beginning of the end, but perhaps it is the end of the beginning,” he said.
Alternative Libel Project Final March 2012
02 Mar 12 | Uncategorized
A former Conservative council candidate has lost in his attempt to sue Google for hosting “defamatory” comments on a blog.
Payam Tamiz, who was ditched as a council candidate in Thanet, Kent, after being found to have referred to local women as “sluts” on Facebook, claimed that Google was the publisher of the comments, hosted on the company’s Blogger platform. Mr Justice Eady rejected this notion and refused to allow Tamiz continue the case.
The troubles of one misguided young politico don’t amount to a hill of beans in this crazy world, but Tamiz has inadvertently established something quite important here. Google and other internet service providers cannot be considered publishers.
Publishing is a conscious act, and even with all the resources in the world, Google could not publish all the content that appears on its platforms every day.
This is not the first time someone has tried to sue Google as a publisher. In Spain, attempts have been made to hold Google responsible for content that appears on government and newspaper websites. Meanwhile, former motorsports chief Max Mosley is attempting to sue the company in 22 separate jurisdictions.
The judgment chimes with the government’s latest publication on libel reform, which recommends that ISPs be recognised as conduits rather than publishers in any dispute. Mr Justice Eady has taken a lot of criticism from the press in the past, but this is an excellent decision.
