Carter Ruck warned the Guardian that any reporting of proceedings in Parliament that revealed the existence of the injunction might lead to litigation, thus seeking to tear up centuries of Parliamentary privilege. Trafigura and Carter Ruck were seen off in this instance, but it was not easy, and the wilful use of the super-injunction to defend the market position of companies and celebrities continues unabated.
Farrelly is equally passionate about the effects of England’s libel laws. He and other civil libertarians see a pattern in the behaviour of much of the judiciary over the past decade on the linked issues of libel, privacy and reputation. That is why Index on Censorship joined forces with English PEN to produce our libel reform report, Free Speech is Not For Sale, in November 2009 and why we launched a broader coalition with the group Sense About Science and others to change the law on libel (see “Petition for change” opposite).
In the ensuing nine months we notched up success after success – Jack Straw’s latter-day conversion, his Ministry of Justice working group, a manifesto commitment by the three main parties to reform and, most recently, publication of Lord Lester’s Private Members Bill.
Lord Lester’s Defamation Bill marked a quiet revolution. Some campaigners argued that it did not go far enough. It did not, for example, address the burden of proof. But that is to cavil. Its remit was broad: to introduce a statutory defence of responsible publication on a matter of public interest; clarify the defences of justification and fair comment, and require claimants to show substantial harm, and corporate bodies to show financial loss; and, in a nod to the 21st Century, it sought to address the problems of the internet age, including multiple publications and the responsibility of internet service providers and hosts.
In perhaps the biggest success of all, on 9 July, during the second reading debate of Lord Lester’s Bill, Lord McNally, the Justice Minister, announced that the government would publish a draft Defamation Bill for consultation and pre-legislative scrutiny in the first session of this Parliament, with a view to introducing a substantive Bill as soon after that as Parliamentary time allows. The problem, however, is the timescale, with the consultation taking place over summer and early autumn, a draft Bill published early next year, followed by pre-legislative scrutiny, and then another year earmarked for passage of the Bill.
In a Commons Westminster Hall debate a few days later, Farrelly likened the state of libel to “a racket”. He warned that the two-year timetable would lead to a concerted lobbying of Ministers by the claimant industry and an inevitable watering down of legislation. He could hear the “Bollinger corks popping”, he told the chamber.
But the dangers make the determination of reformers all the stronger. The calculus is finely balanced. Among Tories, opinion is divided. Ken Clarke, the Justice Secretary, has yet to engage, so far entrusting the libel remit to Lord McNally. The issue of individual liberty and freedom – important philosophical components of this Coalition – have to be brought to the fore. In Nick Clegg and in many ways in David Cameron they have strong advocates. Jeremy Hunt, the Culture Secretary, is also minded to reform, while Whittingdale is perhaps the most influential parliamentary supporter of libel reform.
In its report, Libel, Privacy and Press Standards (HC 532), issued in February 2010, the Culture, Media and Sport Committee struck an eloquent balance between free expression and the duties of the media. The MPs criticised the then Labour government for not tackling the problem of libel tourism, and the damage to the country’s reputation. They described the fact that US courts were introducing legislation to defend American citizens from UK courts as “a humiliation for our system that the US legislators should feel the need to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts”.
The findings were a rebuff to those in the judiciary who insist that the demands for libel reform are overblown. They take their cue from Lord Hoffmann who used the Dame Ann Ebbsworth Lecture earlier this year to declare that complaints about libel tourism “come entirely from the Americans and are based upon a belief that the whole world should share their view about how to strike the balance between freedom of expression and the defence of reputation”, stating that the case made by campaigners for a change “seems to me far from overwhelming”. In an amusing blog exchange on the Index on Censorship website, I suggested to Lord Hoffmann that just because a law happened to be American did not make it wrong. The reason, I suggested, that libel tourism is so pernicious is not because it is foreigners who are suing, but because English jurisprudence is clearly so advantageous to the rich and powerful.
Some government ministers appear to agree with the Hoffmann line. In a speech on July 15, Jonathan Djanogly MP (a Justice Minister) expressed caution about libel reform. “Although we need to review the implication of that possible law and other laws, such as those coming from the EU, as far as they relate to English jurisdiction, I am concerned that we should not be stampeded into basing our laws on an American world view of free speech,” he told MPs.
US legislators are pressing on regardless of the taunts from the other side of the Atlantic. The Speech Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act), which received Congressional approval on 28 July, will enable US courts to refuse to enforce any libel judgments unless they decide that the free speech protections given in foreign courts match those given in the US – rendering judgments in the High Court virtually unenforceable.
It is true that the number of bullying cases of libel tourism has tailed off in recent months. Is this the result of judges hearing libel torts interpreting jurisdiction more vigorously? Even if this improved trend continues – judges after all, like politicians, are keen to know which way the wind blows – there is no guarantee that they will not revert to their bad habits.
Not content with playing down libel tourism, advocates of the status quo fall back on another favoured canard, suggesting that the reform campaign is part of some conspiracy by the “big media”. We are not. The large newspapers can look after themselves. We aim to repair a body of law that has seen scientists, doctors, NGOs, bloggers and others forced into apologising for and retracting articles and books, even though they have done nothing wrong. In short, we aim to make it harder for the privileged to use English courts to stifle free speech around the world. As Lord Lester put it during the Second Reading Debate: “I am not concerned with producing a Bill for the entertainment industry or the media; I am concerned with producing a Bill that protects the ordinary, individual citizen/critic, the small NGO, the regional newspaper, those from the arts and sciences …”
Reformers: take note
Many of the criticisms of the reform campaign are mere obduracy and defence of vested interest. In one area, however, reformers should take note. When decent-minded peers such as Baroness Kennedy and Lord Puttnam are talking with passion about the excesses of the media, about low standards of debate in public life, prurience and invasions of privacy, free expression suffers as a result. The more the media shows voluntary discretion and pays heed of public interest, the less opportunity they will give to those who seek to chill free speech.
John Kampfner is Chief Executive of Index on Censorship
Petition for change
Among the 10 headline recommendations in the report, Free Speech is Not For Sale, were a stronger public interest defence; a cap on costs, expanding the definition of comment, a low-cost libel tribunal as an alternative to court, and stricter criteria for determining reputation for non-UK residents.
More than 50,000 people signed our petition in a few months (visit www.libelreform.org for further information). In the Westminster Hall debate on 15 July 2010, John Whittingdale MP, Chairman of the Select Committee on Culture, Media and Sport paid tribute to this work and noted that the operation of the libel laws “is becoming such an important issue that a lot of people did feel very strongly about it”.