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.