A chance for parliament to re-assert itself
David Blackburn 7:03pm
This afternoon, I had the great privilege of hearing Geoffrey Robertson QC and Sir Ken MacDonald QC argue why English libel law must be reformed. Up to this point I had, along with most of the audience I suspect, assumed that reform would only benefit journalists. I suppose that illustrates just how narcissistic the profession is because now I see that libel reform is essential for the preservation free speech and the sanctity of English law.
As Geoffrey Robertson put it, “We do not have free speech in this country, we have expensive speech.” English libel actions cost several million pounds to fight – 140 times more than the European average. Libel is the preserve of the rich, the ultimate private members’ club. Costs are so prohibitive that many defendants settle out of court when perhaps they should defend their writing on the ground that it constitutes part of a free and fair debate.
Libel, like the law of malicious falsehood, must be a feature of law. It is not a fundamental right, but people are entitled to protect their reputations. That principle should cut both ways. Redress of grievance and the ability to defend a libel allegation should be affordable to as many as possible. A joint report by Index on Censorship and PEN, who organised the event, maintains that arbitration is the answer.
Another reason that settlements are so prevalent is that the defendant must prove his innocence. Libel is the only area of civil law where this principle stands; an anomaly ascribed to the fact that current laws date from the Victorian era. Indeed, relevant cases include an action brought by a gentleman against the scurrilous defamation that he had shot a fox. A gentleman hunts foxes; hounds kill them.
Absurd case law aside, this anomaly limits what appears before the public. Individuals or corporations accused of a range of offences, from fraud to funding terrorism to dumping toxic waste, silence their critics with injunctions and bully-boy threats. The practice also discourages writers from publishing controversial material, which limits the extent of open debate.
English law is affronted and the international legal community holds our libel law in contempt. Last year, the United Nations Human Rights Committee declared:
"The practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work".
Several US states, notably New York, refuse to acknowledge English libel judgements in consequence. Equally damaging, London has become the town that sues - a legal watering-hole for potentially dodgy oligarchs and cowboy corporations, who use the current law to bring actions that belong in other jurisdictions.
Only parliament is capable of instituting reform and reforms must not be abused. Geoffrey Robertson argued that the media must clean up its act, and singled out the Press Complaints Commission for particular criticism. Denis MacShane MP asserted that if Fleet Street seeks reform, it must stop characterising MPs as an extension of the Kray gang. Both Robertson and MacShane are probably right in principle and practice. But the current law subverts free speech, public interest and English law; its reform represents an opportunity for parliament to re-assert itself.
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Rainer Unsinn
November 10th, 2009 7:17pm Report this commentIt would be long overdue. The cost of action means that many media organisations get away with libel on a massive scale.
Another problem is the fact of the victim of the libel being guilty until he can prove his innocence. This basically means that the victim has to open his life to minute scrutiny, whilst the perpetrator stands and smiles. I'm absolutely certain that many papers have deliberately libelled people, just to get more dirt to dish out.
Make the libeller prove his case - keep the victim innocent until proven guilty.
In general, the law has to change to ensure that the victim remains the victim.
Alexandrovich
November 10th, 2009 7:37pm Report this comment"The practice also discourages writers from publishing controversial material, which limits the extent of open debate."
Sure does!
Michael Booth
November 10th, 2009 7:52pm Report this commentyou don't mean Neather by any chance, Alexandrovich, do you?
Gareth
November 10th, 2009 8:08pm Report this comment"Denis MacShane MP asserted that if Fleet Street seeks reform, it must stop characterising MPs as an extension of the Kray gang."
Perhaps MPs should set an example first. It is not for MPs to say 'you scratch my back and I'll scratch yours'. Libel law is atrocious here. They have a duty and are not doing it. They themselves are the reason opinion of them has fallen so low.
adrian drummond
November 10th, 2009 8:27pm Report this commentParliament? Re assert itself?
We are now in the Federal EU. We have no powers. We are no longer in a position to re asert anything.
We are an ex-country. We are no more.
Chuck Unsworth
November 10th, 2009 8:42pm Report this commentRobertson - always good value for money (in several senses).
MacShane simply hasn't got it has he? Does he not understand that the deal is that Courts do Judgement, Parliament does Legislation. Neither has any direct control over public opinion.
TomTom
November 10th, 2009 9:37pm Report this commentI thought the McDonalds Case has shown the utter absurdity of English Libel law and its contravention of the European Charter on Humn Rights.....that was a criminal persecution of two individuals by a US Corporation.
The libel battle pitted Helen Steel, a part-time barmaid earning £65 a week, and David Morris, a single parent on income support, against an expert legal team headed by a £2,000-a-day libel QC in a 313-day trial, the longest in English legal history.
Alexandrovich
November 10th, 2009 10:46pm Report this commentYes Adrian Drummond. We are, collectively, John Cleese and Michael Palin is G. Brown.
And poor old Albion is the Norwegian Blue.
JohnPage
November 10th, 2009 11:22pm Report this commentThe Mail has been running with this recently (including today) and of course Private Eye for ages. Autobiographical confessions of ignorance should be saved for the pub ... I suspect people come here for informed comment.
I agree with another commenter, McShane's remark as reported is a non sequitur. But let's not pull our punches, the people in our sights are Mr Injustice Eady and Mr Donothing Strawman.
daniel maris
November 11th, 2009 12:41am Report this commentYes, and when that fear is combined with super-injunctions we have the very antithesis of a free speech society. We have a "fear speech" society - and people have to comment elliptically, speak in metaphors etc. Just as in the old Soviet Union.
Remember the old Russian proverb:
Since no one believes them, why are they
telling us we do?
Forlornehope
November 11th, 2009 11:00am Report this commentAmazing, at last a subject on which the Spectator finds itself in violent agreement with George Monbiot!
Frank P
November 11th, 2009 11:45am Report this commentWhy on earth would you think it a great privilege to listen to two hard lefty activist lawyers pontificating on anything? I can understand 'interesting' in the sense of 'what subliminal message are these arrogant bastards trying to work into my psyche now'. Or indeed 'what prompted me to move from my office to (wherever) to listen to two shysters who have done so much to undermine the smooth working of the British Judicial system?' But privilege? Do we need any further evidence that this magazine has been fully integrated into neo-Marxist Agitprop?
David Blackburn
November 11th, 2009 12:38pm Report this commentJohn Page,
I'm sorry you don't think that was an informed an article - relevant case law, reference to international libel law and in depth analysis of the relationship between rights and duties in the context of English law. How do you propose I inform myself further? I don't mean that sarcastically, because I'm genuinely interested in this topic now, hence the autobiographical reference. Don't recommend the Mail and the Eye because I've read those already.
Nicholas
November 11th, 2009 1:03pm Report this commentThis just as Uriah Heep - I mean Jack Straw - the Minister of What Passes For Justice in the GBDR - slithers his sinister secret inquest connivance under the noses of the somnolent idiots in parliament who are supposed to be protecting our interests. And listen to the deafening howl of protest from the media, opposition and those promoting civil liberties - you'll have to listen really hard though and even then you might not hear it.
What is it about these nasty cod totalitarians that "No!" doesn't mean "No!" and once rumbled they are brazen enough to still carry on with their cunning plans?
Cogito Ergosum
November 12th, 2009 12:24am Report this commentThe basic principle of libel law is absolutely sound: if you write that a person is a bad person, you must in the last resort be prepared to prove that in open court. You are not allowed to pass on rumours or just invent stories, although you are allowed to express opinions.
Of course, newspapers and broadcasters deeply resent this curb on their creativity, but that is mere special pleading.
The problem seems to be that many writs are not launched in good faith. The old doctrine of "come to the court with clean hands" seems to be flouted. The judges could put a stop to that if they wanted to.
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