Freedom

For all the flaws in English libel law, we should be grateful for small mercies. At least now we've moved further to ensuring libel is no longer a criminal offence in this country. The House of Lords has voted on a government amendment to the coroners and justice bill to repeal the laws of criminal libel, seditious libel and obscene libel. With last year's repeal of blasphemous libel, this completes the removal of the four ancient offences that blighted our record on free speech.

It's true that none of these charges had been used for many years; nonetheless, they sat on the statute books like ugly toads, occasionally uttering a warning croak, echoed by even uglier and rather busier toads around the world. Criminal libel laws still apply in the majority of the world's states to the detriment of free speech and the free flow of information. And let's be clear: these laws are not used to protect anyone's reputation, they are used to silence dissent.

Yet some questions remain. Now that libel is a purely civil affair, will the government turn its attention to meaningful reforms in this area, to ensure that the balance between free speech and reputation is more appropriately set? Will the government also review its counter-terrorist legislation to ensure that we are free to express our fundamental (even fundamentalist) beliefs without risking criminal charges? Does the repeal of obscene libel laws mean that we are more or less sexually liberated - given new restrictions on extreme pornography? And will the Religious Hatred Act allow us to speak out about religious absurdities without fear of being prosecuted for causing offence?

...Read the full article

The House of Lords debated on the 28th October 2009, Lord Lester's clause included in the Coroners and Justice Bill to abolish blasphemy in Northern Ireland.

The amendment was withdrawn. This means that the law stands as it is.

The feeling was that it is an issue that should be debated by the Northern Ireland Assembly rather than Westminster.

Libel, for those who aren't law students, lawyers, or Guardian readers with Twitter accounts, is a type of law which says you can't say untrue things about people, and if you do, you have to pretty much crush them under a ton of money to make up for it. Well, that's what it's supposed to do. However, in the last 15 years or so, powerful people have started using Britain's archaic and creaking libel system to stop anyone saying anything about them, true or not. I was the victim of this law.

For those not working in the slowly dying print industry, libel is the big bad nightmare of most of the publishing companies we have left. The dull money men fear and hate libel in the UK - it is incredibly expensive to defend a libel action, and absolutely catastrophically expensive if you lose.

...Read full article

Britain's reputation for libel tourism is driving American and foreign publishers to consider abandoning the sale of newspaper and magazines in Britain and may lead to them blocking access to websites, MPs have been warned.

Publishers, human rights groups and campaigners have expressed substantial and increasing concern because comments that would be protected under the freedom of speech in the US constitution are actionable in London courts once published here, no matter how small the readership.

A memorandum submitted to a Commons select committee, ahead of a meeting with US publishers, states: Leading US newspapers are actively considering abandoning the supply of the 200-odd copies they make available for sale in London – mainly to Americans who want full details of their local news and sport. They do not make profits out of these minimal and casual sales and they can no longer risk losing millions of dollars in a libel action which they would never face under US law. Does the UK really want to be seen as the only country in Europe – indeed in the world – where important US papers cannot be obtained in print form?

The submission is on behalf of a number of US media outlets, including the Los Angeles Times, the New York Times and MacMillan (US), as well as Human Rights Watch, Global Witness US and Greenpeace International.

After a year-long Inquiry, English PEN and Index on Censorship have concluded that English libel law has a negative impact on freedom of expression, both in the UK and around the world. Freedom of expression is a fundamental human right, and should only be limited in special circumstances. Yet English libel law imposes unnecessary and disproportionate restrictions on free speech, sending a chilling effect through the publishing and journalism sectors in the UK. This effect now reaches around the world, because of so-called libel tourism, where foreign cases are heard in London, widely known as a town named sue. The law was designed to serve the rich and powerful, and does not reflect the interests of a modern democratic society.

In this report, we cut through the intimidating complexity of English libel law to show how the legal framework has become increasingly unbalanced. We believe that the law needs to facilitate the free exchange of ideas and information, whilst offering redress to anyone whose reputation is falsely or unfairly damaged. Yet our inquiry has shown that the law as it stands is hindering the free exchange of ideas and information. We repeatedly encountered the same concerns, expressed by lawyers, publishers, journalists, bloggers and NGOs, who have no wish to abolish libel law, but know from experience of its chilling effect on legitimate publication.

In response to their concerns, which are set out below, we offer the following recommendations to restore the balance between free speech and reputation:

1. In libel, the defendant is guilty until proven innocent

We recommend: Require the claimant to demonstrate damage and falsity

2. English libel law is more about making money than saving a reputation

We recommend: Cap damages at £10,000

3. The definition of publication defies common sense

We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

4. London has become an international libel tribunal

We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

5. There are few viable alternatives to a full trial

We recommend: Establish a libel tribunal as a low-cost forum for hearings

6. There is no robust public interest defence in libel law

We recommend: Strengthen the public interest defence

7. Comment is not free

We recommend: Expand the definition of fair comment

8. The potential cost of defending a libel action is prohibitive

We recommend: Cap base costs and make success fees and After the Event (ATE) insurance premiums non-recoverable

9. The law does not reflect the arrival of the internet

We recommend: Exempt interactive online services and interactive chat from liability

10. Not everything deserves a reputation

We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood

The number of defamation cases that reached the high court surged by 11% in 2008 to a four-year high, as foreign claimants took advantage of the UK's tougher laws to seek libel tourism awards from publishers.

A total of 259 high court defamation writs were issued last year, according to a review by the law firm Reynolds Porter Chamberlain, the most since 2004.

These figures show that the UK remains a very attractive jurisdiction for libel claimants, said Jaron Lewis, a media partner at RPC. This is because our laws are very pro-claimant, making it difficult for the media to defend claims, even when they are unmeritorious.

RPC added that most of the cases that did reach the high court were either settled before a trial began, or withdrawn, often because the costs associated with an action, which can run into hundreds of thousands of pounds, were too high for publishers to risk.

For some publishers the cost of losing a libel trial, or even winning one, might put them at risk of closure, said Lewis. It is not the level of damages so much as the requirement to pay a claimant's legal costs, which will often be a significant six-figure sum.

However, RPC said that if the figures were seen in the wider context of the explosion of news content across the internet, the number of libel claims actually declined significantly, in relative terms, during the past decade.

Although the figures have gone up by 11%, the volume of material being published, particularly on the web, has increased at a much higher rate, said Lewis. So the proportion of articles resulting in libel claims is lower now than 10 years ago.

Jack Straw is preparing to draw up proposals for wholesale reform of England's libel laws.

The justice secretary says the large legal fees involved in defamation cases in English courts are jeopardising freedom of speech, potentially curbing vital debate by scientists, academics and journalists.

The huge payouts awarded to individuals who successfully claim their reputation has been damaged has made London the libel capital of the world.

Last night, Straw warned that the bonanza for lawyers and claimants was having a chilling effect and pledged radical changes. It is very important that citizens are able to take action for defamation if they are seriously defamed. But no-win, no-fee arrangements have got out of hand. The system has become unbalanced, he said.

In measures that are expected to win cross-party support, Straw believes individuals and media groups must have a clearer right to express their views, as in other countries.

A free press can't operate or be effective unless it can offer readers comment as well as news. What concerns me is that the current arrangements are being used by big corporations to restrict fair comment, not always by journalists but also by academics, he said.

He also wants to see new restrictions on no-win, no-fee arrangements and curbs on legal fees involved in fighting cases. In many cases, lawyers who win libel cases make 10 times the money their clients are awarded. He cited one case in which a regional newspaper was forced to pay damages of £5,000 to a plaintiff but £50,000 to the plaintiff's lawyer.

The proposed changes are still under discussion, but Straw is keen to begin the process, which could involve a new libel bill, as soon as possible.

Update: Working Group

2nd December 2009. See article from indexoncensorship.org

Justice Secretary Jack Straw is to establish a working group to examine England's controversial libel laws. The group will consist of media lawyers, editors and experts. The government has also said it will respond to English Pen and Index on Censorship's libel report, along with recommendations by the Culture Media and Sport Select Committee within two months of the publication of the Select Committee report.

The working group is expected to convene in January 2010.

A British doctor who is being sued for libel after criticising an American company's research has pledged to turn the action into a test case for freedom of speech.

Peter Wilmshurst, a consultant cardiologist at the Royal Shrewsbury Hospital, told The Times that he aims to use a public-interest defence to fight the claim from NMT Medical and establish the principle that scientists may engage freely in academic debate.

He said he was prepared to risk losing his home to take the case to trial because victory would set a precedent protecting other scientists from legal bullying. Dr Wilmshurst said: I have got a responsibility to fight this. There is a fundamental principle of science at stake here. People have to be free to challenge research.

There is growing concern about the use of England's draconian libel laws to stifle expert scrutiny of scientific evidence. Simon Singh, the science writer, has been sued for libel by the British Chiropractic Association over an article in which he questioned the evidence that spinal manipulation could treat childhood conditions such as asthma and colic.

Many scientific journals admit that they now seek legal advice before publishing some academic papers, and several websites have withdrawn scientific articles claimed as defamatory because of the prohibitive costs of defending such actions.

Dr Wilmshurt's case began with his involvement in a study of a medical device made by NMT called Starflex, designed to close a type of hole in the heart known as a patent foramen ovale (PFO). The study investigated Starflex as a potential treatment for migraine, which is significantly more common among people with a PFO, but failed to find benefits.

At a cardiology conference in Washington in 2007, Dr Wilmshurst criticised NMT in relation to the research. His comments were reported by Heartwire, a website, prompting NMT to sue him.

Dr Wilmshurst and his solicitor, Mark Lewis, will meet NMT's legal team next month for mediation. If no deal is reached, the case is expected to go to trial.

Lord Lester, the leading human rights barrister, is drawing up a defamation reform bill, which would prevent lawyers pocketing excessive fees and would also stop foreigners with tenuous links to this country from using British libel laws to silence critics.

Last week Jack Straw, the justice secretary, signalled that Labour would support reform.

Lester, a Liberal Democrat peer who has been consulting senior figures in all parties, believes that his moderate package will secure widespread support and wants a package of proposals available for whoever wins the election. His bill would:

• Reform the system of no-win no-fee litigation which makes it cheap for people to bring libel actions but expensive for publications to defend themselves.
• End the principle of multiple publication which means that internet sites can be sued over old, archived articles and instead introduce a single publication rule as in the United States.
• Prevent foreigners from suing in the British courts unless they can demonstrate that they have suffered real harm in Britain.
• Give publications a stronger defence against legal action if they can demonstrate that the article was in the public interest.

Lester said he also wanted to end the imposition of cash damages where someone successfully sues. Instead, he insisted that in most cases an apology from the publication should be enough.

England’s libel laws are unjust, against the public interest and internationally criticised — there is urgent need for reform this is the message performers, writers, poets, patient groups, legal experts, broadcasters, journalists and others represented by the Coalition for Libel Reform (English PEN, Index on Censorship and Sense About Science) are sending to politicians urging them to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.

At the launch of the National Campaign for Libel Reform on Thursday, performers and others urged the public to sign a petition demanding reform of the libel laws, highlighting that for the first time in over a century we have an opportunity to change our unfair and repressive libel laws.

It has been 18 months since I was sued for libel after publishing my article on chiropractic. I am continuing to fight my case and am prepared to defend my article for another 18 months or more if necessary. The ongoing libel case has been distracting, draining and frustrating, but it has always been heartening to receive so much support, particularly from people who realise that English libel laws need to be reformed in order to allow robust discussion of matters of public interest. Over twenty thousand people signed the statement to Keep Libel Laws out of Science, but now we need you to sign up again and add your name to the new statement.

The new statement is necessary because the campaign for libel reform is stepping up a gear and will be working on much broader base. Sense About Science has joined forces with Index on Censorship and English PEN and their goal is to reach 100,000 or more signatories in order to help politicians appreciate the level of public support for libel reform. We have already met several leading figures from all three main parties and they have all showed signs of interest. Now, however, we need a final push in order to persuade them to commit to libel reform.

Finally, I would like to make three points. First, I will stress again - please take the time to reinforce your support for libel reform by signing up at www.libelreform.org. Second, please spread the word by blogging, twittering, Facebooking and emailing in order to encourage friends, family and colleagues to sign up. Third, for those supporters who live overseas, please also add your name to the petition and encourage others to do the same; unfortunately and embarrassingly, English libel laws impact writers in the rest of the world, but now you can help change those laws by showing your support for libel reform. While I fight in my own libel battle, I hope that you will fight the bigger battle of libel reform.

Foreigners could be barred from bringing libel actions with tenuous links to the UK under reforms being considered by ministers.

Jack Straw, the justice secretary, is to appoint an expert panel to examine how to prevent overseas litigants from using British courts for defamation cases with little connection to this country.

The new working group of lawyers, academics and newspaper editors will report by mid-March, with the aim of implementing some recommendations before the general election. They will be asked to consider nine areas of concern about Britain's libel laws, with so-called libel tourism the priority. Related Links

In an interview, Straw said: Libel law is not in the right place — there cannot be any disagreement with that. This group will work fairly swiftly to get a report out before parliament is dissolved.

Straw said he was disturbed by the use of UK courts to silence doctors and scientists. It is very worrying, he said. There ought to be open and robust debate in the scientific and medical world. If someone who has expertise in a field believes a piece of medical equipment is not doing what it is supposed to do, and is claimed to do, they ought to be free to say so.

Straw is also holding discussions with officials in Brussels about libel jurisdiction in Europe. He said the European commission had acknowledged that the system was operating unsatisfactorily.

The new panel will be asked to consider the case for capping the level of damages that courts can award, and whether a libel tribunal should be established to resolve defamation claims out of court. The experts will examine how to make it easier for scientists, authors and commentators to defend their words on the basis of fair comment, or in the public interest; and whether the burden of proof should be shifted from the defendant to the litigant.

Large and medium-sized corporations may have to prove malicious falsehood to succeed in a defamation action, while smaller firms and individuals could have to provide more proof that their reputation has suffered. The panel will also consider whether there should be special rules for internet blogs.

Straw hopes that most reforms can be implemented through secondary legislation, avoiding the need for a time-consuming new parliamentary bill. Libel lawyers, however, insist that the system works well and accuse the government of trying to curry favour with the media ahead of the general election.

Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.

The law is so biased towards claimants and so hostile to writers that London has become known as the libel capital of the world. The rich and powerful bring cases to London on the flimsiest grounds (libel tourism), because they know that 90% of cases are won by claimants. Libel laws intended to protect individual reputation are being exploited to suppress fair comment and criticism.

The cost of a libel trial is often in excess of £1 million and 140 times more expensive than libel cases in mainland Europe; publishers (and individual journalists, authors, academics, performers and blog-writers) cannot risk such extortionate costs, which means that they are forced to back down, withdraw and apologise for material they believe is true, fair and important to the public.

The English PEN/Index on Censorship report has shown that there is an urgent need to amend the law to provide a stronger, wider and more accessible public interest defence. Sense About Science has shown that the threat of libel action leads to self-censorship in scientific and medical writing.

We the undersigned, in England and beyond, urge politicians to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.

Sign petition at libelreform.org

The Big Libel Gig
Sunday 14 March 2010
Palace Theatre, Shaftesbury Avenue,London

The Big Libel Gig will raise funds to support the Coalition for Libel Reform. An eclectic line-up, including Dara O Briain, Tim Minchin, Marcus Brigstocke, Robin Ince, Ed Byrne, Shappi Khorsandi, Professor Brian Cox, Simon Singh, Professor Richard Wiseman, Dr Peter Wilmshurst and Dr Ben Goldacre, is supporting the campaign for a public interest defence to protect writers, bloggers, academics, human rights activists and performers.

The Big Libel Gig is the brainchild of comedian Robin Ince - whose previous successes include the annual Nine Lessons and Carols for Godless People shows and who will be hosting the evening – and Simon Singh, the science author and broadcaster, who will be talking frankly about the impact of libel fears on scientific debate.

Stars of the show will tell the audience that England's unjust libel laws are preventing free speech and open criticism of big corporations and powerful institutions. They will call for others to support the campaign for a public interest defence and join them in signing the petition for libel reform at www.libelreform.org. The Big Libel Gig will be the culmination of Libel Reform Week, which will raise awareness of English libel laws and urge political parties to commit to major reforms before the election, in the interests of fairness, the public interest and free speech.

Funds raised from The Big Libel Gig will be donated to the Coalition for Libel Reform, established by the charities Index on Censorship, English PEN and Sense About Science.

When the culture, media and sport select committee began its work more than a year ago, many feared the worst.

Yet the more they probed and the more they heard from organisations defending free expression, the more the MPs began to understand the vital need to distinguish between investigative journalism, a noble cause, and prurient journalism, a less salutary one. Some aspects of the report are disappointing. One that relates to privacy is potentially alarming. On balance though this is an important step forward, giving cross-party support for fundamental change to England's hideous libel laws.

The committee details the enormous costs faced by publications, particularly small ones, in defending themselves. The report criticises law firms for deliberately stringing out suits so they can ratchet up costs and force people into settling and apologising, even where they have nothing to apologise for. It stops short of reversing the burden of proof, but it does suggest reinforcing the defence in court for brave reporting and making it harder for companies to sue to protect their reputations. The committee's chairman, the Conservative MP John Whittingdale, says he and his colleagues were eager to correct the balance which has tipped too far in favour of the plaintiff.

The MPs denounce the ease with which foreign-based oligarchs, sheikhs and their like have used avaricious legal firms and pliant judges to chill the free speech of NGOs, authors and others – so much so that US Congress has considered legislation to protect Americans from British courts. They criticise Jack Straw, the justice secretary, for not tackling the problem of libel tourism, and the damage to the country's reputation, describing the measures taken by US legislators as a humiliation.

...Read full article

See also article from business.timesonline.co.uk

Rules for reporting:

• No legislation on privacy
• Press Complaints Commission to recommend prior notification to the subject of articles, subject to a public interest test
• A new law to clarify Parliamentary privilege and ensure free and fair reporting
• The burden of proof should be reversed in the case of big corporations so that they must prove libel and not the defendant
• Action to curb the use of super-injunctions and research to discover the extent of their use
• A new regulator, a Press Complaints and Standards Commission, with powers to fine and halt publications

The impact of our libel laws on documentary film makers: what you don't get to see
Thursday 11th March, 6:30pm
Free Word Centre, 60 Farringdon Road, London, EC1R 3GA

As part of the Big Libel Week, the Libel Reform Campaign will be hosting a free event on the effect of our libel laws on documentary film makers. Speakers include:

• Tracy Worcester is a documentary film maker who directed and produced the film Pig Business (there will be a screening of an extract from this)
• Christopher Hird is a leading figure in UK independent documentary making and runs Dartmouth Films
• Duncan Campbell is an investigative journalist and filmmaker who specialises in privacy, civil liberties and secrecy issues. He has faced successive libel actions for twenty years.

Francisco Lacerda, a professor of phonetics at Stockholm University, is one of two scientists threatened with legal action after the publication of a scientific article condemning the use of lie detectors. The Israeli company Nemesysco, which manufactures detectors, has written in a letter to the researchers' publishers that the researchers may be sued for libel if they continue to write on this subject in the future.

One year ago, Francisco Lacerda, a professor of linguistics at Stockholm University, and Anders Eriksson, professor of phonetics at the University of Gothenburg, published an article in the International Journal of Speech Language and the Law, a magazine for voice experts working for the police and security services. The article entitled "Charlatantry in forensic speech science" gave an overview of the last fifty years of research in the field of lie detectors. The article's conclusion is that there is no scientific evidence to show that lie detectors actually work.

...Read the full article

Mass Lobby for Libel Law Reform
House of Commons
Tuesday 23rd March from 2pm

This Tuesday 23rd March we are organising a mass lobby of MPs for libel law reform at the House of Commons from 2pm. Some of the parties are wavering - they don't want to commit to reforms unless they are under pressure to. We need everyone to help to bring that about before manifestos are published and Parliament rises for the election. Can you come to a mass lobby in the House of Commons on Tuesday 23rd at 2pm? This is the closest we've been to fundamental libel law reform in a century, but we need everyone to help it succeed.

Come to the Cromwell Green entrance to the Houses of Parliament. You will have to allow about 20 minutes to pass through security and to get to Committee Room 15 between 2 and 3pm. We will hear from high profile Champions of the campaign on why the political parties need to commit to reform libel laws which are unjust, against the public interest and an international menace and, we hope, from spokespeople for the parties on justice matters. Your MP may be there if you wrote to them. We can ask them en masse what they are doing to get a manifesto commitment for libel law reform or you can ask them personally.

A Statutory Instrument that would have reformed costs in English libel cases was stalled at committee stage tonight after several Labour MPs voted against their party whip to bock a reduction of lawyers' success fees from a 100%mark-up to 10%.

Chris Mullin, Peter Kilfoyle, Tom Watson and Jim Sheridan and Conservative Julie Kirkbride acted against the move. Watson and Kilfoyle have both taken advantage of Conditional Fee Agreements in past court cases. Other Conservative MPs abstained from the vote.

The proposal will now go to a full parliamentary vote.

All 3 major political parties in the UK are committed to libel law reform.

Dominic Grieve, the Shadow Justice Minister, told us on Friday that the Conservative party is committed, if elected, to undertaking a fundamental review of the libel laws with a view to enacting legislation to reform them. This reform could best be done by means of a separate Libel Bill and this is the preferred approach for us.

The Lib Dems made libel law reform a policy in September 2009 after Professor Richard Dawkins addressed their party conference and Jack Straw committed Labour to reforming English libel law at our mass-lobby of Parliament on 23rd March.

The Labour manifesto, released today, pledges To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely.

Free Speech Hustings
Free Word Centre, 60 Farringdon Road, London
21 April at 6.30pm

To book email: bookings@freewordonline.com or call 020 7324 2570.

If you can't make it to the London date, we are planning on organising satellite events in Manchester, Birmingham, Liverpool, Edinburgh, Glasgow, Westminster and other towns. See www.libelreform.org for more details soon.

The hustings will also be streamed live on the internet. See tinyurl.com/y6lrx5

In celebration of Simon Singh's libell victory, the Libel Reform Campaign is hosting the official Free Speech Hustings of the General Election 2010 and you're invited.

We have a number of free tickets reserved especially for our supporters so you can see Jack Straw from Labour, Dominic Grieve from the Conservatives, and Chris Huhne from the Liberal Democrats go head to head over libel law reform and protecting our freedom of speech.

The Free Speech Hustings will bring together scientists, writers, human rights activists, journalists, bloggers and most importantly… voters – we want you to put the difficult questions to the candidates about free speech and libel reform, counter-terrorism, privacy and religious hatred.

Representing LABOUR… Jack Straw

Jack Straw has been a Cabinet Member since Labour came to power in 1997. As Justice Secretary he set up the working-party that reported on reform of our libel laws and committed his party to a manifesto commitment. But could Jack have done more to protect free speech?

Representing the CONSERVATIVES… Dominic Grieve

Dominic Grieve is the Conservatives spokesperson for Justice. He committed the Conservative party to a manifesto commitment to reform our libel laws. But with the Conservatives promising yet another consultation on libel reform will Grieve deliver the change we want?

And for the LIBERAL DEMOCRATS… Chris Huhne

Chris Huhne fought Nick Clegg for the leadership of the Liberal Democrats in 2007 and is now their Home Affairs spokesperson. His party was the first to commit to reforming English libel laws at their party conference in 2009. The Liberal Democrats made the first commitment, but why did they vote against Jack Straw's proposals in the Commons to cap lawyers' fees?

A Saudi businessman who is being sued over a suspected multibillion-dollar fraud is invoking English libel law in what experts say is the latest high-profile example of libel tourism.

Maan al-Sanea is being sued by banks in New York, Dubai, London and the Cayman Islands over claims he is responsible for more than $15bn of bad debt in banks in Bahrain. But reports of allegations in papers around the world, including the Wall Street Journal and the The National in Abu Dhabi, have resulted in threats of libel action by lawyers in London, the Guardian has learned.

Journalists covering the case, which could have damaging repercussions for Saudi Arabia's business reputation, have received letters from the law firm Harbottle & Lewis warning of a libel suit in the high court unless articles about Sanea are withdrawn.

The right of free speech is a central democratic principle. But so too is the right of individuals to be protected against libel and defamation of character. The job of the legislature and judiciary is to balance those conflicting freedoms. In England, that balance has become skewed: libel law gives robust protection to reputation, but it increasingly does so at the expense of freedom of speech.

The Government is aware of the problem. Nick Clegg has indicated that the coalition will review the libel laws. It is fortunate, then, that on Thursday a Private Member's Bill will be published that offers an ideal model for reform. Lord Lester of Herne Hill will bring a Defamation Bill before the House of Lords that aims to modernise and simplify the law in several respects. It would bring up to date the defences available for those being sued for libel. It would require claimants to show real harm before they could sue. It would demand that corporate claimants must prove actual damage. And it would make the normal mode of trial one of a judge sitting alone, rather than a jury.

Lord Lester's Bill also contains measures to cope with the advent of the internet. At the moment, foreign claimants are pursuing cases in the UK courts based on the fact that articles published on the world wide web can be downloaded here. Every time an article is downloaded, it constitutes a new publication, which resets the one-year limitation period for libel actions, a law that dates from 1849, when the Duke of Brunswick made law by sending his valet to obtain a 17-year-old back copy of the Weekly Dispatch to sue for defamation.

This is not a Bill to promote irresponsible journalism, or to placate newspapers whingeing about libel. It seeks to restore the right balance between those who pursue public interest reporting and those who seek to defend themselves from malicious attacks. If nothing is done the result will be increasing self-censorship, because of the uncertainty over what constitutes fair comment and because of the size of damages that can be awarded, which Lord Lester's Bill seeks to limit.

Anthony Lester QC writes:

[Today] I will introduce the second reading debate on my Private Members Defamation Bill. This is a unique opportunity for Parliament to reform our antiquated and unjust libel laws.

I am grateful for your support - 100s of you have spoken out and written about this; you have told the Libel Reform Campaign about threats of libel action which lead you to remove articles, blogs, reviews, academic papers, reports and books; your organisations have joined the campaign and 100s of MPs signed up for reform after you wrote to them.

Senior judges recognise the pressing need for reform - the Court of Appeal in Simon Singh's libel case highlighted how ludicrous it is that finding out if he even had a defence cost Simon £200,000 and 2 years before he got to court. All of this has drawn attention to the profound problems with the law as it stands that need to be addressed by legislation from Parliament.

Ministers have said they are to reviews the laws of libel with the aim of bolstering freedom of expression and the integrity of academic research.

Justice Minister Lord McNally said the coalition would publish a draft bill for consultation early next year. The Conservatives and Lib Dems included a commitment to reform the laws on libel and defamation in their coalition agreement in May.

Debating a private member's bill on the issue in the Lords, Lib Dem peer Lord McNally said ministers intended to bring forward legislation of their own next year: Freedom of speech is the foundation of democracy

We need investigative journalism and scientific research to be able to flourish without the fear of unfounded, lengthy and costly defamation and libel cases being brought against them.

We are committed to reforming the law on defamation and want to focus on ensuring that a right and a fair balance is struck between freedom of expression and the protection of reputation.

The Index of Censorship said changes were needed to help foster academic debate and should not be seen as a licence for the media to publish what they liked. We are absolutely delighted about this but obviously there is a long way to go, said its editor Jo Glanville: There will be consultations and nobody knows what this will end up looking like. But it is a real triumph.

It is a sad truth about the British media that a story's chances of making the newspapers increase in proportion to an editor's ability to attach breasts to it. The tale of how the makers of Boob Job tried to undermine freedom of speech by threatening Dr Dalia Nield was no exception to the rule.

I don't mean to mock. The press does not argue strongly enough for the freedom on which its business and our liberties depend and it was good to see journalists defend the doctor.

The Mail had asked her opinion of Rodial's claim that its £125 jars of Boob Job would expand breasts by half a cup size if a woman rubbed the cream into her chest for 56 days on the trot. Dr Nield is one of Britain's foremost cosmetic surgeons. She gave every impression of not believing a word of Rodial's hype. She told the Mail that women needed a lot more data from Rodial and wondered whether the cream would do more harm than good. For this, Rodial sent her a letter threatening defamation proceedings. Quite rightly, reporters protested about yet another attempt by our wretched legal profession to silence informed debate on matters of public interest.

...Read the full article

A new guide to the libel laws for bloggers has just been published.

The guide, entitled So you've had a threatening letter. What can you do?, is published by Sense About Science in association with Index on Censorship, English PEN, the Media Legal Defence Initiative, the Association of British Science Writers and the World Federation of Science Journalists.

To coincide with the guide's publication, Sense About Science is making available a summary of the effects of the English libel laws on bloggers, drawn from cases that have come to attention since the start of the Libel Reform Campaign and from the recent survey of bloggers. The summary identifies the particular ways in which online forums are affected by the current laws, notably:

• the individual and non-professional character of much online writing, and therefore the more pronounced inequality of arms, particularly where people are writing about companies, institutions and products;
• related to the above, the relative lack of familiarity with libel law and access to advice about handling complaints;
• the liability of ISPs, leading to material being removed without consultation with authors;
• and the vulnerability to legal action arising from the international availability of Internet material, and it being possible to republish old material by downloading it.

Reform of English libel law has been promised, and if campaigners are successful, then changes that will give better defences to online publishers and writers may come into force in 2012.

This leaflet is certainly not a substitute for legal advice, but it does provide information which other bloggers and writers who have experienced libel threats say they wished they had known at the outset.

Dear Prime Minister

We are writing to ask that you introduce urgent reforms in the Government's proposed draft Defamation Bill to protect open discussion on the internet.

The English law of defamation is having a disproportionate, chilling effect on online writers, e-communities and web hosts:

• The libel laws have not been updated to address the rise of online publication. The current multiple publication rule, dating back to 1849, defines every download as a publication and a potential new cause of action.
   
• Internet service providers can be held liable for comments they host and therefore are inclined to take down material or websites even before the writer or publisher has been made aware of a complaint. Such intermediaries usually have no access to the background or relevant facts and should not be expected to play judge and jury in determining whether a writer's material is defamatory or not. This is a decision that can and should only be made by the direct parties involved.
   
• Online blogs and forums are available around the world and there appear, in practice, to be few restrictions on material published substantially on matters and concerning parties and reputations elsewhere being the subject of legal action in English courts.
   
• The Internet is used for publication by millions of ordinary citizens for whom the current defences to an action for defamation have not been developed.

We ask that the Government's draft Bill provide the following protection for discussion on the Internet:

1. ISPs and forum hosts – intermediaries - should not be forced to take down material without a determination by a court or competent authority that the content is defamatory. The claimant should in the first instance approach the author rather than an uninvolved intermediary.
    
2. There should be a single publication rule and a limitation period of one year from original publication.
    
3. Claimants in libel law should demonstrate that there has been a substantial tort in the jurisdiction in which they bring proceedings.
    
4. There should be a public interest defence in cases where the material is on a matter of public interest and the author has acted in accordance with expectations of the medium or forum.

Signed

Richard Allan, Director of Policy EU, Facebook

Emma Ascroft, Director, Public & Social Policy, Yahoo! UK & Ireland

Lisa Fitzgerald, Senior Counsel, AOL (UK) Limited

Nicholas Lansman, Secretary-General, Internet Service Providers' Association (ISPA), which represents providers of Internet services in the UK and has over 200 members representing 95 per cent of the access market.

Justine Roberts, CEO, Mumsnet

This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated.

The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies.

The appellants provide entertainment booking services.

The Gillettes appointed the booking agency to promote their acts, entering into a contract which included a re-engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants.

The booking agency arranged a booking for the Gillettes at Bibis restaurant in Leeds. The Gillettes agreed to perform again at Bibis three weeks later without reference to the agency.

The agency emailed the band to complain of the breach of the re-engagement clause. A band member replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other Gillettes were not bound by the re-engagement clause as they had not signed the contract.

The booking agency thereafter posted a notice on their website announcing that they were no longer representing the Gillettes as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of "contracts hold no water in legal terms". For this reason it may follow that the artists obligations for your booking may also not be met….'

The Gillettes issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform.

The booking agency relied principally on the defences of justification and fair comment. Both were struck out in the High Court. The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment.

Judgement

The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the agency.

A 'fair comment' must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded

However this defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest.

Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment.

The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case.

The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re-naming of the defence from fair comment to honest comment.

Applying the law to the facts of this case, the posting by the booking agency referred to the breach of contract relating to the Bibis restaurant, and to the Gillettes' email, and these facts could be relied on. The email arguably evidenced a contemptuous approach to the Gillettes' contractual obligations to the agency. The email as quoted arguably evidenced a contemptuous attitude to contracts in general.

It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference.

The defence should therefore be reinstated.

Libel tourists no longer welcome in my court!

Major changes to Britain's antiquated defamation laws will be outlined by ministers with the publication of a bill to provide greater protection for free speech and an end to libel tourism.

The draft Defamation Bill will propose a new defence of honest opinion, which will protect academics from being sued by companies and special-interest groups for damaging their reputations. There is currently a defence of fair comment, but it has to be based on stated and true facts and rarely succeeds.

There will also be new rules to stop celebrities and businessmen from bringing libel cases in Britain unless they can prove that the publication caused them substantial harm in the country. Foreign litigants will have to sue in the country where most of the damage to their reputations was done, rather than using the English courts on the basis that the publication was available in Britain.

Under the new rules, it will be up to a judge to decide whether substantial harm has been caused to reputation in this country. It is expected that if the main damage was done outside this country, UK courts will not accept jurisdiction.

The Government has now published its promised draft Defamation Bill.

We have had an initial look and weighed it up against the blueprint for reform we launched last week. We welcome where the draft bill contains some of the reforms we set out, including:

• A more effective and clearer defence of truth (justification)
• A clearer and wider defence of honest opinion (fair comment)
• The extension of statutory qualified privilege to benefit NGOs and scientific conferences
• A single publication rule with a one year cut off

But it comes up short in a few important places:

• The suggested public interest defence needs more work to properly protect citizen critics
• There is no commitment to counter the censorship of online discussions by web-hosts and internet service providers who are liable for content they publish
• There is no commitment to restrict corporations' ability to sue in libel

These measures are going to be open for consultation over the next few months.

Offsite: We will end the libel farce

See article from guardian.co.uk by Nick Clegg

Shameful libel laws kill debate and smother scientific inquiry. Our coalition bill will let the press be free

We live in an information age, with knowledge flowing in unprecedented ways. Recent weeks have been dramatic proof of that. Twitter helped oust Hosni Mubarak. Thanks to global, 24-hour news reporting, Muammar Gaddafi's actions cannot be hidden. Global citizens watch in real time as events unfold in Japan.

In such an age ideas are everything and openness reigns supreme. Power rests, increasingly, on winning the argument, and censorship has no place.

...Read the full article

Update: American Cheers

See article from indexoncensorship.org

The arrival of the draft defamation bill was cheered in the US, where the long reach of libel tourism had prompted domestic bills shielding Americans from judgments that chill free speech from abroad. President Obama just last August signed the SPEECH Act into law. It wasn't aimed explicitly at the UK; rather, it protects Americans from the enforcement of all libel judgments ruled against them in countries that don't afford the same free speech protection as the US First Amendment.

But it was not a secret that the legislation was triggered by my fight against the imposition of English libel laws, said Rachel Ehrenfeld, an American academic whose run-in with a wealthy Saudi businessman in British court became the galvanizing case for libel tourism in the US: I thought that since the United States had fought and won its independence from England in 1776, Ehrenfeld said, there was no reason for Americans to abide by repressive English law.

Ken Clarke's Justice Department is considering sending rich and famous claimants to the Press Complaints Commission for arbitration before they are allowed to take their case to court.

Ministers say the system would be cheaper and quicker, and hope it could deter foreigners from flocking to our courts in so-called libel tourism.

At a meeting of a Parliamentary Committee investigating changes to defamation laws, Justice Minister Lord McNally told MPs that he was tempted to make complainants go to the PCC first: I do think that a credible Press Complaints Commission -- one that had general respect and could deliver non-legal fast justice in areas where people complained of press abuse -- is preferable to the law. If complainants want a rapid correction then mediation does offer a cheap and speedy way of addressing that.

Clarke said that the PCC would have to beef itself up to be able to take on the role, and would have to do more to ensure it had the confidence of the public.

For those who care about free expression in the UK, and particularly the reform of our invidious libel laws, this is a crucial week. Today and tomorrow, the UK Supreme Court hears the Times's attempt to overturn an appeal court ruling in a libel case brought against it by Metropolitan Police officer Gary Flood.

...Read the full article

Reforms to England's libel laws will not do enough to protect free speech. A powerful parliamentary committee believes further steps are needed to prevent big corporations using their financial muscle to gag opponents by threatening legal action.

It also wants extra measures to protect scientists and academics who are publishing legitimate research, and to prevent trivial claims ever reaching court.

The committee has been scrutinising the Coalition's proposals to end the international embarrassment that sees rich and powerful foreigners flocking to our courts to silence critics.

The report from the joint committee on the draft Defamation Bill says many of the Government's proposals, particularly a move to end trial by jury except in the most serious cases, are worthwhile. But it says the plans are modest and do not address the key problem in defamation law, the unacceptably high costs associated with defending cases.

Recommendation that websites be held responsible for anonymous comments

See article from bbc.co.uk

Websites should have protection from defamation cases if they act quickly to remove anonymous postings which prompt a complaint, a report says. A joint parliamentary committee tasked with examining libel reform says it wants a cultural shift so that posts under pseudonyms are not considered true, reliable or trustworthy, But it says websites which identify authors and publish complaints alongside comments should get legal protection.

The committee proposes a new notice and takedown procedure for defamatory online comments - aimed at providing a quick remedy for those who are defamed and to give websites which use the procedure more legal protection.

It recommends that where complaints are made about comments from identified authors - the website should promptly publish a notice of the complaint alongside it. The complainant can then apply to a court for a takedown order - which if granted, should result in the comment being removed, if the website is to avoid the risk of a defamation claim.

But where potentially defamatory comments are anonymous, the website should immediately remove them on receipt of a complaint, unless the author agrees to identify themselves, the report says. The author of the comment can then be sued for defamation but if a website refuses to take down an anonymous remark it should be treated as its publisher and face the risk of libel proceedings.

The report also says a website could apply to a court for a leave-up order, if it (is rich enough and) considers the anonymous comment to be on a matter of significant public interest.

But Mumsnet, a parenting website, says many of its members rely on the ability to ask questions or post comments anonymously. Many of the women posting messages do so under a user name, rather than their real name - and the site is worried the proposal will mean more people demanding messages be taken down.

Its co-founder, Justine Roberts, said while it was right to stop people from assassinating the character of others from behind the cloak of anonymity the report did not recognise how useful anonymous postings were in allowing people to speak honestly about difficult real-life situations. The recommendations could have a chilling effect on sites like Mumsnet where many thousands of people use anonymity to confidentially seek and give advice about sensitive real-life situations.

Under the current law, websites are liable for defamatory statements made by their users. If they fail to take down a post when they receive a complaint, they risk being treated as the primary publisher of the statement.

So how is a website to know if users correctly identify themselves anyway?

In an exclusive extract from You Can't Read This Book, the Observer columnist Nick Cohen presents a damning indictment of how the English legal system helps the wealthy and powerful suppress inconvenient truths:

At their best, journalists expose the crimes of the powerful and there were plenty of powerful people worthy of examination in the Britain of the early 2000s. London was awash with money as it competed with Manhattan to be the hub of global finance.

If journalists tried to do what they should do and investigate them, Britain also gave the oligarchs a further privilege: the power to enforce a censorship that the naive supposed had vanished with the repressions of the old establishment. Among the many attractions London offered the oligarchs was a legal profession that served them as attentively as the shop assistants in Harrods food hall.

With an aristocratic prejudice against freedom of speech, the judges imposed costs and sanctions on investigative journalism that would have been hard to endure in the best of times, but were unbearable after the internet had undermined the media's business models. Instead of aiming its guns at the worst of British writing, the law of libel aimed at the bravest.

...Read the full article

Ex-New Zealand cricketer Chris Cairns, who is suing a former Indian Premier League boss over a Twitter posting, has his case heard by the UK High Court in the latest example of libel tourism.

Chris Cairns is taking legal action over a  January 2010 tweet by Lalit Modi alleging that he was involved in match fixing.

The action is taking place in London despite claims by Modi's lawyers that there were only 35 readers of the tweet in England and Wales. Evidence for Cairns put the figure at around 100.

Padraig Reidy of Index on Censorshop said:

The Cairns case is one of the most clear-cut cases of libel tourism we have seen.

While cricket is an international game, the alleged libel took place in India, concerned conduct in India, and primarily affects Cairns's reputation in India.

Plans to prevent libel tourism were put forward by the Government last year. The proposed new rules would block celebrities and businessman from bringing such actions in this country unless it could be proved that publication caused them substantial harm in England and Wales.

The Libel Reform Campaign welcomes the Government's commitment to a Defamation Bill but current proposals do not yet address the extensive problems of libel bullying and the chill on public debate

The Ministry of Justice has published a statement in response to the report of the Joint Scrutiny Committee on the Draft Defamation Bill last year. Its commitment to a Bill is welcome recognition of the serious problems faced by NGOs, scientists, bloggers and authors -- problems set out in wide-ranging evidence by the Libel Reform Campaign and by hundreds of individuals and organisations.

The Government has said it will make changes to introduce a single publication rule and reduce libel tourism and has proposed many beneficial and well-grounded changes to procedure and existing defences.

However, the Government's initial response falls short of what is needed in some important areas:

• The current libel laws chill speech on matters of public interest and on expressions of opinion on matters in the public realm. We need a new effective statutory public interest defence. Instead, the Government is only proposing minor changes to an already complex, unwieldy and expensive defence, called Reynolds Privilege.
• Libel laws are used by corporations and associations to squash any criticism and manage their brand. The laws need rebalancing to protect the ordinary individual or responsible publisher, by restricting the ability of such non-natural persons to sue for libel or threaten to do so.
• The law allows trivial and vexatious claims. There should be easier strike out of trivial or inappropriate claims at an early stage.

Jonathan Heawood, Director, English PEN:

We have heard overwhelming evidence from scientists, bloggers, investigative journalists and authors that libel law urgently needs to be reformed. Our view is that the Government's initial response falls short of what's required for a bill that addresses their concerns. It's hard to understand this diluted response to the public and parliamentary calls for meaningful libel reform.

John Kampfner, Chief Executive, Index on Censorship:

We are disappointed to learn that the Government does not intend to address corporations' use of libel laws to silence criticism in the defamation bill. There are numerous recent instances of corporate bodies and other organisations intimidating individuals who submit their products and practices to scrutiny. We urge the Government to take the opportunity to introduce measures that would constitute a fairer remedy.

Dr Evan Harris, policy advisor to the Libel Reform Campaign:

We need reform that not only provides clear and effective defences to frivolous and chilling libel actions but also sufficiently high hurdles before people are dragged into expensive court actions so that vexatious or trivial libel suits are deterred.

Update: Scientific Journals to be Exempted from Libel Claims

14th March 2012. See article from independent.co.uk

Scientists and academics could be given greater protection from libel claims under changes being considered by Ken Clarke, the Justice Secretary. He told MPs that articles in peer-reviewed journals could be protected as a result of the draft Defamation Bill.

Julian Huppert, a Liberal Democrat who sat on the parliamentary joint committee which examined the Bill, raised the issue with Clarke in the Commons. He said the committee recommended that qualified privilege should be extended to peer-reviewed academic articles in journals.

Huppert asked Clarke:

Do you agree that it is in the public interest for scientists and other academics to be able to publish bona fide research results without fear and that, unless the publication was maliciously false, they should be protected from defamation actions?

The Justice Secretary replied:

We are proposing that peer-reviewed research should be protected and we are now obviously considering the draft of the final Bill in the light of the joint committee's report.