And whether libel reform combined with changes to legal aid and caps on success fees will effectively kill off Conditional Fee Arrangements. These are summarised below, along with some highlights from the lively audience debate that followed.
The Grays Inn libel debate
Tuesday 11 January 2011
Organised by Hugh Tomlinson QC, INFORRM (The International Forum for Responsible Media Blog) and Martin Moore with the Media Standards Trust
Sir Charles Gray on access to justice
Sir Charles Gray, retired High Court Judge, talked about the problems with access to justice in the current climate.He discussed the work that had been conducted by the Early Resolution Procedure Group, whose object was to find earlier and therefore cheaper resolutions of defamation actions. One of the root causes of media litigation costs was disputes over the meaning of the words complained of: a complainant might argue that a newspaper had accused him of fraud, while the newspaper might defend the matter on the basis of reasonable grounds to suspect that the claimant was guilty of fraud. The parties were fighting essentially differing battles in the same case and the best way to resolve the issue was to determine meaning at the earliest possible stage. However, the only problem lay in s.69 of the Senior Courts Act 1981 which states that it is for a jury to determine the meaning of the words. A recommendation was put forward that s.69 required amending so as to allow for a Judge to take on the task of meaning.
Kevin Marsh on the importance of truth
Kevin Marsh, executive editor of the BBC College of Journalism hoped the bill would strike a better balance between the interests of the media and the wider public, currently the “missing voice” in the debate. He was vociferous in his condemnation of some aspects of the press. “Not all journalism is honest, well sourced, fair minded or in the public interest”. He talked about the irony, if not the hypocrisy, when journalists discuss the commercial pressures which are driving down standards in the trade and then demand the law to be changed to lower the truth test. “Thousands of ordinary people see their reputations trashed by lies, half truths and gossip recycled as news.”
Razi Mireskandari on the possible capping of costs
Razi Mireskandari, partner, Simons Muirhead and Burton, considered the issue of costs in libel to be the very centre of the problem and that there ought to be a balance. One solution would be to cap success fees and stage them through the litigation process, so the defendant would be able to assess where they stood.
Evan Harris on rejuvenating investigative journalism
Evan Harris, former LibDem MP saw the current law as “free speech- hostile” rather than “claimant-friendly” or “defendant-hostile”. Reform would rejuvenate investigative journalism in the public interest. For him, the key to the success of the libel reform campaign was not so much improving the defences against libel as establishing an easier way to strike out cases where the threshold of substantial harm to a reputation in this jurisdiction had not been met.
Zoe Margolis on the long lasting effects of libel
Zoe Margolis, award winning writer known for her blog “Girl with a One Track Mind” graphically illustrated the long lasting effects of libel in this technological word. She was recently libelled by the Independent on Sunday attaching to an article she had written for the newspaper the title, “I was a hooker, but now I’m an agony aunt”. She was immediately inundated with Google alerts from all over the world. Recognising the importance of Google ranking and realizing that an apology on page 47 of the newspaper would have little or no effect on that ranking, she needed to limit publicly the damage to her reputation from such a headline. Assisted by a Conditional Fee Arrangement, she won damages plus a very public statement in open court by the paper. The interest generated via Twitter, on various blogs and by interviews she gave on TV and radio soon relegated the offending headline itself to a distant page on any “Zoe Margolis” search. But it is still there…
addendum: david wurtzel
Draft Defamation Bill
On March 15, the Secretary of State for Justice, Ken Clarke QC, announced the draft Defamation Bill along with a consultation both on the clauses of the Bill and on a number of other areas which are not part of the Bill. David Wurtzel, Counsel’s Consultant Editor, gives a brief summary of the draft Defamation Bill and how it reflects many of the issues raised during January’s debate
- Sir Charles Gray argued for the determination of meaning at the earliest possible stage. Paragraph 123 of the consultation acknowledges that defamation proceedings can become “mired in disputes over preliminary issues” which contributes substantially to delay and to costs. Clause 8, which removes the presumption that defamation should be tried with a jury, will hopefully enable preliminary issues to be considered by a judge at an earlier stage in the proceedings. Paragraph 125 lists three main preliminary issues including “what the actual meaning of the words complained of is and whether that meaning is defamatory”. The others are whether the claim satisfies the substantial harm test where this is in dispute, and whether the words complained of are a statement of fact or an opinion.
- Kevin Marsh wanted a better balance between the interests of the media and the wider public. Clause 2 of the Bill puts on a statutory basis the defence that “the statement complained of is, or forms part of, a statement on a matter of public interest and the defendant acted responsibly in publishing the statement complained of”. Clause 3 abolishes the common law defence of justification and creates a statutory defence that ‘the imputation conveyed by the statement complained of is substantially true’. If one or more of the imputations is not shown to be substantially true the defence does not fail if “having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not materially injure the claimant’s reputation”. Clause 4 creates a statutory defence of honest opinion, that is, it is a defence for the defendant to show that the statement complained of is a statement of opinion, that the opinion is on a matter of public interest and that an honest person could have held the opinion on the basis of a fact which existed at the time the statement complained of was published; a privileged statement which was published before the statement complained of. The defence is defeated if the claimant shows that the defendant did not hold the opinion.
- Evan Harris was concerned with whether there was an easier way to strike out cases where the threshold of substantive harm to a reputation in this jurisdiction has not been met. Clause 1 says “a statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant”. Paragraph 5 of the consultation says that in the event that the substantial harm requirement is not satisfied, “there will need to be a straightforward mechanism to enable the claim to be struck out without the need for a further application to be made by the defendant”—a further justification for clause 8.
- The Bill does not address the problem of Zoe Margolis’s case but the consultation does deal with issues arising out of the internet.
- The question of costs is left to the outcome of the consultation on Jackson LJ’s proposals.
Clause 5 deals with privilege. Clause 6 creates the single publication rule (the cause of action accrues on the date of the first publication). Clause 7 deals with “libel tourism”. An action for defamation against a person who is not domiciled in this country or in another member state or a state which is not a contracting party to the Lugano Convention will not fall within the jurisdiction of the court “unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Walls is clearly the most appropriate place in which to bring an action in respect of the statement”. The consultation ends on June 10.
Questions (and answers) from the floor
Leading libel reform campaigners, news journalists and internet bloggers each took their turn on the floor. Paul Farrelly MP and member of the House of Commons Select Committee for Culture, Media and Sport, warned that the path ahead for libel reform was fraught with difficulty because many MPs do not like newspapers and will question whether more freedom for the press will affect the public’s ability to sue, “if traduced by lies and defamation”. He spoke of a “dual track balancing act” between the public’s ability to sue and reforms addressing the “chilling effect” on free speech. Simon Singh, the science writer, who recently won a landmark libel case, highlighted the prevalence of libel tourism, which had also been raised by a journalist from The Kyiv Post lamenting the problems his paper faced when sued for libel.
A common consensus exists that there is a profound problem with the way we police the limits of what we can say and what we can be told.No doubt the impact of the technological developments on the traditional tools used to police expression has led to a fundamental rethink of the existing libel laws. The Defamation Act was passed in 1996: at that time no one had heard of Twitter, Facebook, Google, YouTube or Wikileaks. These have created new challenges and new legal responses are needed – the Government’s Draft Defamation Bill has promised to tackle libel tourism, clarify the law in relation to fair comment and justification, as well as looking at how the law can be updated to better reflect the realities of the internet – it has been eagerly awaited by many.
Let us hope that its architects emerge with their collective reputation unsullied.
Siobhan Grey is a tenant at Doughty Street Chambers.