Libel must be rebalanced in the scales of justice

Anthony Lester
The Times Online

Anthony Lester, QC

Our present laws have a chilling impact on free speech — the lifeblood of democracy

The Lib-Con coalition promises a review of the libel laws to protect freedom of speech. It is long overdue. English libel law is notoriously costly, complicated and stifling of free speech. Now, in the face of pressure from internet publishing and the public outcry about scientists, authors and human rights groups being sued, we have a welcome consensus on the need for reform. The time is over-ripe for Parliament to replace our archaic law with one that gives stronger protection to the freedom to share information and ideas and that is fit for the 21st century.

On Thursday my Private Member’s Defamation Bill will be published to help the Government to review the law. There will, of course, be professional resistance. Until now, libel law has remained the preserve of a small group of lawyers skilled in its complex rules and procedures. It has been left to judges to fashion the law, in concert with some piecemeal reforms in the 1950s and 1990s that never addressed free speech and could not have anticipated a culture of online publication and debate.

No government or Parliament has conducted a full review since the Porter commission report in 1948 was ignored by the Attlee and Churchill governments. Libel laws are concerned with important issues of public policy, so it is right in our democracy for Parliament to shape them.

Current English libel law gives robust protection to reputation at the expense of freedom of speech. Its “chilling effect” on what people are prepared to publish has been aggravated by uncertainty about whether defences can be relied upon, and by conditional fee agreements that permit claimants’ lawyers to be unjustly enriched at the expense of writers and publishers. Claimants have been able to pursue claims where publication has caused them no substantial harm, and large corporations have brought actions against NGOs and newspapers without having to prove financial loss.

The scientific community is worried that the law threatens open exchange of critical views. A recent Commons Culture, Media and Sport Committee report, Press Standards, Privacy and Libel, concluded that these fears are well founded. The recent case of Simon Singh, who spent two years and thousands of pounds to establish if he could defend his opinion about chiropractice as “fair comment”, shows the need for clearer defences.

The Defamation Bill, prepared with help from expert colleagues, sets out stronger and clearer defences and strikes a fairer balance between private reputation and public information. It is not a charter for irresponsible journalism, or a rigid code. It contains a simple framework of principles to be taken into account, so the law is applied with a sense of proportion.

As counsel for The Times in a case brought in the 1990s by the former Taoiseach Albert Reynolds, I argued for the development of a defence of responsible journalism. The law lords agreed and set out the “Reynolds defence” but it has not been of great practical value. Human rights campaigners, doctors at conferences and those exchanging views in online chat rooms, when threatened with libel action, have not been able to show that they did an investigative report beforehand, as required, and nor should they have to. We need a simpler statutory public interest defence, which clearly applies to everyone and covers opinion as well as fact.

Reform also gives the opportunity to reflect a world much changed since the Duke of Brunswick sent his valet to obtain a 17-year-old publication of the Weekly Dispatch (to sue for defamation). Now search engines do the same thing thousands of times per day. The Bill sets out the circumstances in which an internet service provider or forum host should not be liable for defamatory material and sets time limits on suing. It also extends parliamentary privilege and gives greater protection to fair and accurate reporting of many official proceedings.

Freedom of speech is the lifeblood of democracy, but good reputation must be protected against irresponsible journalism. My Bill seeks a better balance. I hope it will get a second reading and government support. It will be debated, fought over and improved, but reform should not be delayed. The last Parliament abolished the common law offences of criminal, seditious and blasphemous libel. The civil law is more chilling in its impact on the right to free speech than criminal law. The new Parliament must tackle the issues now.

Lord Lester of Herne Hill, QC, is a Liberal Democrat peer