douglasgresham.co.uk

Libel reform has been something of a hot topic of late; even the terminally inward-looking Labour government are looking at reform.  There have been a number of episodes that have shown that British libel law is being used to suppress criticism, both at home and increasingly from abroad (the nature of the global internet allowing people to claim that any website available in the UK is published in the UK).  It’s a serious threat to freedom of speech.  This much has been picked over at length – the question is, what would I actually do about it?

A quick primer for those not familiar with defamation or libel: defamation is a statement or statements that makes a claim about a “named or identifiable individual (or individuals) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them” (from Wikipedia).  Libel is written and published defamation.  In the age of the internet, I would like to think that libel laws will become unnecessary – the net should be a place where everyone has the right to reply and have their voice heard, so any falsehoods should hopefully be exposed and the perpetrators suffer a blow to their reputation and creditability; however, this utopia does not yet exist, and it would be naive in the extreme not to admit that certain information sources (newspapers, large news sites, TV channels) have disproportionate influence and that adequate redress is possible simply by refuting them.  We therefor still require some form of legal framework for libel claims, but the one we have at the moment in the UK is fundamentally flawed in a number of ways, and so I propose the following reforms.

Radically overhaul the way CFAs work

In 1998, the Courts and Legal Services Act was expanded to include the use of Conditional Fee Agreements (“no win no fee”) to defamation cases, thus lowering the barrier to launching a libel suit.  In theory, this allows access to justice for those who couldn’t otherwise afford it; in practice it also makes libel suits as a means of silencing criticism much more attractive.  It’s also a huge incentive for legal firms to engage in libel actions, because if successful (including a paid settlement as well as a final judgement) they can claim all billable hours plus a “success fee” of up to 100% directly from the defendants – and this is not conditional at all upon the size of the judgement, so as you can imagine having even the smallest libel judgment made against you can be financially crippling – Lord Justice Jackson is on record as saying these fees are sometimes over 1000% of the award or settlement, and study from the University of Oxford found the costs of libel proceedings in the UK to be 140 times higher than the European average (direct link: PDF warning).

While Jack Straw is looking to cap CFA success fees at 10% of the billable hours, the way to correct this imbalance is to link the success fee directly to the size of the award or settlement.  This would encourage lawyers to focus on libel cases where actual damage has occurred (for more on this, see below).  Fortunately, this is the one area that looks like it will be addressed in the near future.

CFA reform goes further than simply libel, by the way, partially addressing the abundance of personal accident claimants and huge associated costs that are the real cause of one of the Daily Fail’s favourite boogeymen, the elf-n-safety-brigade.  I’ll be coming back to this in a future post.

Introduce redress for the defense

Even if you successfully defend a libel case, avoiding paying damages and the CFA costs, you’re going to be substantially out of pocket, as unlike the claimant you have to pay your fees up front, and you’re unlikely to get it all back.  For instance, see Ben Goldacre’s clash with pill salesman Matthias Rath, which cost The Guardian £170,000 and 19 months of struggle (and, not inconsequentially for a newspaper, being prevented from commenting on the story).  Defendants should be able to claim back all costs; additionally, changes I propose below should result in more cases being thrown out sooner which will also keep costs down.

Of course, it’s better all round if we have fewer cases to start with, which brings me on to the real meat of UK libel law today.

Remove the Duke of Brunswick rule

A ruling dating back to 1848 established that if a libelous piece was reprinted that counted as a fresh publication and, as such, reset the timer on the statute of limitations on defamation action.  Due to the way web servers work – sending a new copy of a page each time someone requests it – these are covered by that same rule, meaning that for any piece of writing on the internet liability for potential libel action expires not after 6 years, as was the intention of the law, but in fact persists as long as the document is accessible – in reality, that means forever.  It also means that you can take legal action anywhere in the world the site is available, as viewing it there is an act of “publishing” – since the UK has notoriously strict libel laws, as we’re discovering, this fact has led to a glut of  libel tourism here.  Further, as anyone familiar with the internet will tell you, it’s more or less impossible to make something disappear once it’s out there.

This rule is archaic and ridiculous.  It needs purged entirely.

Remove liability from service providers

Service providers who exercise no editorial control (or remove content retroactively) could be held to be ‘publishers’ and therefor liable.  Quite aside from it being ridiculously unfair to hold someone liable for someone else’s content they did not approve or condone, this creates two serious problems: firstly, there is a chilling effect on the cultural and technological innovation that has thrived on the open platform of the internet, and services such as hosted blogging simply could not exist were the providers required to manually scan (presumably with legal counsel) each entry to avoid lawsuits; and secondly, it allows the circumvention of due process if one wishes simply to have content removed – threaten the provider with legal action, and you might well be able to get content you disapprove of removed without the knowledge or intervention of the alleged libeler.

Section 230 of the US Communications Decency Act

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

I don’t see that it should to be limited to “interactive computer service” (“information content providers”, maybe?) but I’d introduce something very close to this.  Like CFA reform, it would have be introduced as a separate item to my libel reform bill, as it’s much more widely applicable than just defamation, as I’m sure I’ll cover in future WICTP posts.

Put the burden of proof back onto the claimant

At present, claimants have to prove that the allegedly libelous writings refer to them and that they are defamatory, which is to say they suffered a loss of trade/profession or that a “reasonable person” would think less of them (including being subject to ridicule, contempt or hatred).  This means that the burden of proof is on the defendant to prove that their comment was either true or justified.  I’ll come to standards of justification shortly; for now let’s focus on the burden of proof.  At present, we are essentially valuing people’s reputation more than their freedom of speech, and as a result have low requirements to begin pursuing a libel action.

The solution to this is simple: upon bringing the suit, the claimant should be required to demonstrate that the claim is false – or in the event they cannot do so provide adequate reasons for this – and unjustified.  If they fail to do this it should be tossed out, and I’d also like to see punitive damages for suits brought with the intent of stifling valid criticism (such as the Trafigura scandal) – again, this is something I mean to explore in greater depth in subsequent WICTP posts, although the use of the web and social network to neuter that ruling is heartening for the future.

Require claimants to demonstrate actual damages

While actual malice must be proven to claim punitive damages for all claimants and compensatory damages in the case of public figures, private individuals need only prove negligence to receive compensatory damages (and, as we’ve seen, as soon as they’re awarded the legal fees kick in).  Moreover, claimants are not required to demonstrate that they have suffered to the extent of the damages they are claiming, meaning a blogger with 10 readers could be subject to the same awards as a newspaper with millions of readers.

To remedy this, I’d increase the standard for private individuals to malicious defamation rather than negligence (where malice includes repeated failure to correct oneself if one has been shown to be in error), and assert that the claimant must demonstrate the actual damages for which they are claiming.

Expand public benefit justifications

Currently, there is no broadly applicable public benefit defence against libel.  There is an established public benefit justification in the form of the Reynolds defense, which allows for cases where a journalist had a duty to publish an allegation even if it turns out to be wrong, essentially turning any trial in which it is deployed into an investigation of the journalist’s conduct as well as the content itself.  While I’ve no reason to think it wouldn’t be available to all, the criteria which is adheres to are very much based on the traditional model of journalism (such as seeking comment from the plaintiff and verifying sources).  These things aren’t necessarily applicable to, for instance, correct and proper scientific inquiry, which is clearly a public benefit, as is demonstrated by the continuing actions brought against scientists and scientific journalists by proponents of unproven disciplines, such as Simon Singh.  It also doesn’t account for situations where the steps of the Reynolds defence can’t reasonably be followed, such as reporting on a totalitarian dictatorship.

The remedy to this is similar to the issue of requiring malice to be demonstrated.  I would create a public interest defense for any statement made that was believed to be both true and in the public interest, and place the burden of proof against these upon the claimant as described above; I would also add an explicit defense for science and scientific journalism, requiring that the principles of scientific inquiry were followed (to be adjudged by independent expert witnesses, preferably practicing scientists) and that results are not deliberately misrepresented or used to make unrelated defamatory claims.  This would necessarily be a low bar – the correct way to respond to scientific criticism is with science, not with law.

Expand fair comment justifications

The overriding problem this section faces is that of context – both in terms of what the defendant intended to say, and whether in context we should consider it to be opinion rather than fact.  For the former, one need only look as far as Simon Singh’s case again to see the problem – reading his entire article (as you can here), he clearly didn’t intend to say the British Chiropractic Association were deliberately deceptive, and yet that is the meaning he was instructed by the judge to defend.  Fortunately his case is currently in appeal, but the principle of context needs codified in law to prevent this from ever happening.

For the latter, fair comment is a slippery devil.  What exactly is factual? Everyone makes statement that, out of context, sounds entirely factual; must we be required to prefix everything with “I think that”, like a bad high school essay, in order to prove we’re dealing with opinions?  Or perhaps we could enclose everything in quotations to prove it (I’m looking at you, BBC News).  Then there’s the argument that by stating exactly what is fair comment, you declare everything you don’t explicitly mention not to be, which is likely to cause issues in the future.  My suggestion would be to firstly put the burden of proof upon the claimant to show the offending statement(s) are intended as factual, and secondly to apply judgment to the situation – the “reasonable person” standard seems appropriate, seeing as it’s what we’re supposed to be using in defamation law.

So, where to?

In the real world where I’m not in charge (sigh), where do we go from here?  Well, first I’d suggest reading LibelReform.org’s report covering much of the ground I have here in more depth; then, if you’re a UK voter, please consider this issue when voting.  The Conservative Party, unfortunately but predictably, don’t appear to want to take this bludgeon away from the wealthy and powerful (incidentally the letter in that link is a form response, I received one too and I have a different MP); Labour we’ve already discussed; and the Liberal Democrats appear to have genuinely got it.  Regarding the smaller parties, the Greens only mention blasphemous libel as far as I can tell, UKIP are too busy being overly nationalistic to worry about such things, and the Pirate Party are discussing it, and it definitely fits with their (our, actually, as I’m a member) principles, but there’s no official position yet.