The journalist, the tourist, the claim and their lawyers: libel reform – Part 2

The campaign

Go off and sign your name to the petition if you haven’t already.  They do, basically, have a point.

Recent coverage

Simon Singh’s Court of Appeal case is coming up next week (23 February 2010).  There has been some print media coverage of the various issues recently, which is worth a brief consideration.  In particular Nick Cohen had quite a bit to say in the Guardian about a speech by Lord Hoffman (a now retired law lord), which you can find here.  The first thing to note about Lord Hoffman is that he is a completely brilliant man.  He has a brain the size of a planet and, speaking as someone who spends quite a lot of time trying hard to Understand The Law, is very very good at explaining complicated concepts in a way that even I can understand.  The second point is that he is notoriously fiercely independent (as many extremely intelligent people are), unafraid of defying the government and – please note this – a liberal.  In particular, he has consistently refused to lend any legitimacy to any form of torture.  He was part of the House of Lords committee who said that General Pinochet had to be extradited to Spain to face trial there.  And that decision was set aside (by different judges) because he had failed to declare that he was a chairman and director of Amnesty International’s charity arm.  He is very very far from being an establishment stooge.

I urge you all to go and read Lord Hoffman’s speech.  He makes a number of the points I have made in Part 1 of this post (and let me tell you, it is quite something to be saying that Lord Hoffman agrees with me, rather than the other way round).  He points out various facts about Dr Ehrenfeld’s political sympathies and the holes in her claims (as recorded by Mr Justice Eady in his judgment:  see Part 1).  His point is that when you are considering reforming the law, you have to test your reform by assuming in turn both that the claimant is right, and that the claimant is wrong.  The principles of the law have to reach a just result, using a just procedure, without assuming one side is right and for all kinds of different factual situations.  It’s no good having a law which ensures that the defendant to a libel action always gets off, in circumstances where that defendant has, for example, wrongly and publicly called the claimant a paedophile.

Nick Cohen deals with this not by engaging Lord Hoffman on the point he is making, but by doing four things.  First, he pretends that Lord Hoffman cannot have an independent view.  This is just silly.  Second, he refers to some irrelevant background information about Mahfouz (irrelevant because the libel action was about allegations that he funds terrorism, not that he misstated the financial position of BCCI:  that is, Mr Cohen is setting up a straw man).  Third, he appears to suggest that Lord Hoffman is anti-Semitic or at the very least anti-Israel (see the seventh paragraph).  Lord Hoffman happens to be Jewish.  Fourth, he cites various examples said to be of “libel tourism” which, for the reasons set out in Part 1, don’t prove anything at all.  He goes on to say that the rallying point for English liberals is the libel action by the BCA against Simon Singh – but that, of course, has nothing at all to do with libel tourism!

The latest edition of Private Eye (which I love and to which, for the avoidance of doubt, I have been a subscriber since the age of 16) has a reference to Lord Hoffman’s speech.  I’ll put a link up to a copy of it as soon as I work out how (sorry:  v poor nerd knowledge).  Private Eye comment in their usual gleeful tone that Mr Justice Eady was the only practising libel judge not present at Lord Hoffman’s speech.  They suggest that this might be because Lord Hoffman overturned one of Eady J’s decisions in a previous case, saying in trenchant terms that the decision was unsustainable and wrong.  Well, perhaps.  Or it might have been because he felt a bit shy at listening to what Lord Hoffman actually did say during the speech:

Comments such as these were accompanied by a good deal of disgraceful personal abuse of Mr Justice Eady.

Or maybe he just had something else on that night.

I really would greatly prefer it if the print media would stick to attacking things that actually need to be attacked.  There are some serious issues relating to libel law (not just English libel law) which do need reform.  Most aspects of libel law itself are, however, perfectly fine.

Burden of proof

Jack of Kent has explained with his usual clarity what the law is and why here.

I don’t think this is in any way a straightforward issue, but on balance I think the law should be changed so that the claimant has to establish that the statement is false.

Public interest defence

One of the really weird things about the campaign being run by Index on Censorship and English PEN is that they seem to think that there is no public interest defence in English law.  Essentially, the idea is that is would be a defence to a libel action to say something that turned out to be wrong, if you had taken care to check your point so far as possible and if it was generally important that such topics were freely discussed.

The thing is, there is.

And it’s been around for a while.  A defence of honest comment on matters of public interest has been a part of English law since at least 1863.  You shouldn’t be surprised by this – the English courts have been protecting freedom of speech since long, long before any of the modern human rights treaties.  As Lord Goff (another utterly brilliant lawyer) said in the Spycatcher litigation (pg 30 of the House of Lords’ judgment here):

I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.

The public interest defence extended in certain circumstances to factual assertions: where discussion was desirable “for the common convenience and welfare of society” or “right in the interests of society.”  I am quoting from decisions dating from the 1800s ((1834) 1 CM&R 181 and (1870) LR 5 QB 608 if you’re really keen).  The key case for our purposes, however, is Reynolds v Times Newspapers (in 1999) which established what is known as the Reynolds defence.  The importance of Reynolds was that it confirmed that factually inaccurate statements (as well as comments) could be defended on grounds of public interest.

You can read about Reynolds on Wikipedia (so there’s not really any excuse for misleading campaigning about it).  You can read the actual House of Lords’ judgment here.  The House of Lords set out 10 factors which would be relevant to determining whether the public interest was made out in any particular case (they’re in the Wiki article if you can’t be arsed trawling through the judgment).  Lord Nicholls concluded by saying:

In general, a  newspaper’s unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.

The decision in Reynolds was applied again and approved in a subsequent House of Lords case called Jameel v Wall Street Journal (in 2006).  You can read the judgment here.  Lord Hoffman (yes, the very same) said that Lord Nicholls’ “ten tests” were to be used as guidance, not as hurdles.  That is, Jameel made is easier for a defendant to establish that his comments, including factual statements, were in the public interest.

This defence would have been available to Dr Ehrenfeld if she had chosen to defend the Mahfouz libel action.  It is also available to Simon Singh.  I assume he will run it in the event (which hopefully will not occur) that his appeal does not succeed.

The Real Problem

The real problem with libel cases in the English courts is not the law of libel.  It is the cost of defending such an action and the fact that even if you win and in principle obtain an order from the court that they have to pay your costs of the action, you will never get 100% of those costs.  Successful parties to litigation usually recover about 75% of their legal costs from the losing side.  This means that you are never, I repeat never, a complete winner in any case.  There is always a hole in your pocket at the end of the day.  (I tell all my clients this.  You would be amazed, just amazed, at how many want to carry on anyway.  Litigation is a fool’s game to be avoided if at all possible.)

This is the problem Ben Goldacre is talking about here.  Matthias Rath sued the Guardian over statements made in Ben Goldacre’s Bad Science column, then dropped his case as it was total utter shite (a legal term), so the Guardian was the out and out winner.  But it was still left with a £170k hole.

This really does have a massively chilling effect on freedom of speech.  It is no good having the Reynolds defence available to you if even when you win you have still had to sell your house to pay the lawyers.

So why are libel actions so expensive?  Is it just because evil lawyers are milking these claims for everything they can get?  Or what?

The answer is… a bit complicated.  And the solution is not as clear cut as you might expect.  To be discussed in Part 3…

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4 Responses

  1. “I think the law should be changed so that the claimant has to establish that the statement is false”

    You link to an article about Robert Murat, but under a different burden of proof situation, how would you expect Robert Murat to prove that he is not a paedophile?

  2. This is a good summary of the situation, but wrong to suggest that ‘one of the really weird things about the campaign being run by Index on Censorship and English PEN is that they seem to think that there is no public interest defence in English law’. In fact, one of the weird things about English law is that, despite the notional existence of a modern public interest defence in the form of Reynolds, as modified in Jameel, such a defence has hardly ever been used. Why not? Largely because of the potential costs involved, as you rightly note. But also because the test itself embodies the misplaced burden of proof which does not require the claimant to show falsity. In this way, the law places reputation first, and freedom of expression second, in defiance of their ranking in the ECHR and HRA. If you read the Index/PEN report (which can be downloaded from http://www.libelreform.org) you might in future avoid this facile misrepresentation of its contents. And then we can engage on points of law!

  3. […] has a preview of Simon Singh’s appearance at the Court of Appeal; and Lucifee concludes her brilliant series on libel […]

  4. Excellent, really. This series (part 3 eagerly awaited) has really been clearing up a lot of misconceptions about libel law. I’m sympathetic in principle to reform (although the IANAL caveat applies, and we need people who do know the law to come up with detailed proposals), but it seems right to me that the main problem is with an unequal distribution of resources rather than bad law. And the resources problem is not one that can be easily solved by statute.

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