Our libel laws protect the rich, and disenfranchise the poor – Labour should do something about it

By Michael Harris

An important part of any functioning democracy is freedom for the press. Without scrutiny of our political and business leaders, the electorate cannot make informed choices on who should govern. It’s a simple principle but one that no longer applies in England and Wales. London is nicknamed ‘a town named sue’ by wealthy lawyers who have pocketed millions from our libel laws, which were at root devised as a legal remedy to stop aristocrats duelling. And now, even the United Nations has expressed concern.

The New York Times is a newspaper recognised across the globe, available in lounges in every major airport. Except soon, that is, London’s airports. You see, the New York Times is so worried about the possible effect of just a single English libel trial that it has threatened to stop publication of its newspaper in the UK. It’ll even block the online edition. A single libel law suit could cost the newspaper a six or even seven figure sum, an amount it will never recoup by selling a few hundred copies in the UK daily.

A year ago, English PEN and Index on Censorship asked MPs, lawyers, human rights activists, writers and journalists about the effect that our libel laws are having on free expression. The report is launched today at the Libel Reform website and the results are of real concern.

The case studies show how our libel laws have nearly silenced scientists who questioned whether vitamin pills could cure AIDS (the answer is, err it’s unlikely, but legal costs hit £500,000 before the law suit was dropped); human rights groups documenting the genocide in Rwanda; football supporters questioning the management of their club; and academics tracing the funding for terrorism.

Our mixture of Conditional Fee Arrangements – no win, no fee, and therefore no risk in suing – combined with a burden of proof that means the defendant (say, a human rights activist) is guilty until proven innocent, proves an absolutely toxic combination for free expression. If a football supporter, or an Amnesty blogger, or a campaigner against the illegal actions of multinational corporations manages (remember the McLibel trial) to incur the wrath of an oligarch or plutocrat anywhere on earth, they can be silenced or bankrupted with near-impunity.

As Labour, we believe in equality – and key to this is equal access to the law. But how can we preach equality when twelve years into a Labour government the cost of libel actions in England and Wales are 140 times higher than the European average?*

The English PEN / Index on Censorship report makes a series of recommendations, which are worth reading in full. But, in short, they are:

1. In libel, the defendant is guilty until proven innocent.

Recommendation: Require the claimant to demonstrate damage and falsity.

2. English libel law is more about making money than saving a reputation.

Recommendation: Cap damages at £10,000.

3. The definition of ‘publication’ defies common sense.

Recommendation: Abolish the Duke of Brunswick rule and introduce a single publication rule.

4. London has become an international libel tribunal

Recommendation: No case should be heard in this jurisdiction unless at least 10% of copies of the relevant publication have been circulated here.

5. There are few viable alternatives to a full trial.

Recommendation: Establish a libel tribunal as a low-cost forum for hearings.

6. There is no robust public interest defence in libel law.

Recommendation: Strengthen the public interest defence.

7. Comment is not free.

Recommendation: Expand the definition of fair comment.

8. The potential cost of defending a libel action is prohibitive.

Recommendation: Cap base costs and make success fees and ‘After the Event’ (ATE) insurance premiums non-recoverable.

9. The law does not reflect the arrival of the internet.

Recommendation: Exempt interactive online services and interactive chat from liability.

10. Not everything deserves a reputation.

Recommendation: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood.

Index on Censorship and English PEN are asking for a Libel Reform Bill that would bring these changes together and lead to the greatest strengthening of freedom in this country for a generation.

Gordon Brown may wonder what his legacy will be. He could do well by unshackling England and Wales from libel laws that are crippling writers, activists and journalists from scrutinising the rich and powerful across the world.

Please visit LibelReform.org and sign up for email updates.

(*) A Comparative Study in Defamation Proceedings Across Europe, Programme in Comparative Media Law and Policy, Centre for Socio-Legal Studies, University of Oxford, December 2008.