Our campaign isn’t a “big media” proxy

07 Jan 11 | News and features

This article was first published in Press Gazette

Who could possibly improve on the assessment of Justice Minister Lord McNally?

England’s libel laws are, he said, “not fit for purpose”.

McNally’s determination to drive through a bill in a crowded legislative market place marks an important step for the libel reform campaign. He made his comments at the celebration in early December of the first anniversary of the campaign, convened by Index on Censorship, English PEN and Sense About Science, and supported by many other organisations and publications, including Press Gazette.

The campaign had an immediate rallying point: the case of Simon Singh, who was being sued by the British Chiropractic Association. Singh’s battle was a perfect storm: a popular and charismatic writer being unjustly maligned for his honestly held views on a controversial alternative medical treatment.

One of the criticisms of the campaign made by those with vested interests in the status quo is that the problems with the law are concoctions drawn up by journalists and editors seeking a free pass to write what they want without fear of sanction.

The critics — based around law firms keen to maintain their profit margins – are not just wrong in the facts. They are wrong also, knowingly wrong, in suggesting time and again that our campaign is a proxy for “big media”.

We are not. The UK’s main newspapers are quite capable are looking after themselves. More fundamentally, free expression is an individual and societal right, not an industry right.

Libel has affected bloggers, scientists, doctors and charities that are unable to find the cash to fight off legal firms who deliberately string things along in order to drain the defendant of energy and time.

Less damaging than the cases that go to court are the cases that do not — people who time and again apologise and retract purely out of duress.

Inevitably there is a convergence between our aims and those of media groups.

As the industry lurches uncertainly forward on ever-dwindling resources, as investigative journalism diminishes, so democracy suffers.

If the job of the media is not to hold truth to power, then what is it for?

Our increasingly squeezed local newspapers are unlikely to be able to afford to go to the High Court, leaving editors unwilling to publish stories on local politicians and bigwigs for fear of a lengthy, expensive action.

The Reynolds Defence, held up as a boon for journalists, is realistically only applicable to papers with large newsrooms and legal departments. As one local editor pointed out at a libel reform meeting, some hard-up papers’ “legal departments” consist of an old copy of McNae’s.

As more of our work is conducted and published online, we are stuck with laws that fail to understand modern communication.

The current idea of “publication” means that every time someone clicks on a page, that page is freshly “published”.

In practice, this means the idea of a statute of limitation is out the window. Long forgotten copy can suddenly become subject of vexatious litigation.

These are just two of the issues that Index and the libel reform campaign seeks to address. We are hopeful that the draft bill promised this spring will favour a free press.

We are under no illusions, though, that the forces of resistance, the defenders of the rich and powerful, will use the pre-legislative scrutiny period to lobby hard to weaken the legislation beyond recognition.

For sure, 2010 was a great year for our cause, but 2011 will be absolutely crucial.

It’s vital the press embraces this opportunity to make our courts fairer, cheaper and firmly in favour of free expression.

John Kampfner is the chief executive of Index on Censorship

Spiller v Joseph at the Supreme Court

01 Dec 10 | Uncategorized

A judgment handed down at the Supreme Court this morning recognises the need for reform in defamation proceedings, and points to two key areas. [Read the background to the case, Spiller v Joseph, here]

One of the most contentious areas in libel reform — jury trials — was put at the centre of the agenda when Lord Phillips questioned their effectiveness in defamation cases:

[…] has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles, such as this one before the court, which attempt to pre-empt issues from going before the jury.

It’s a reform that Lord Lester tackled in his private member’s bill earlier this year, which proposed that the presumption to jury trial should be reversed. The Supreme Court judgment today will put further pressure on the government to review whether jury trials are really the best forum for defamation cases.

The judgment will also have an impact on one of the most notoriously complex areas of libel law — the fair comment defence. Lord Phillips proposed that the defence be renamed “honest comment” and suggested removing the requirement that it be based on a matter of public interest. He added:

“Would it not be more simple and satisfactory if, in place of the objective test, the onus was on the defendant to show that he subjectively believed that his comment was justified by the facts on which he based it?”

Lord Phillips recommended that the whole area should be reviewed by the Law Commission.