It is a positive step that the government’s Defamation Bill is being debated and that there is agreement on moving away from the use of a jury, however this is a wasted opportunity. The issues highlighted in the Bill are something that I have had first-hand experience with. But most people, particularly some minor celebrities and, more importantly, members of the public, will not be able to make use of the proposed changes – simply because they will never be able to afford to fund a fully-fledged defamation case.
Until recently, it has been possible for lawyers to take on cases completely free of charge to the claimant, but due to the changes to ‘no win/no fee’ made by the Coalition government, this will no longer be an option. Instead, from 2013 we will have a situation where lawyers will have to take cases on a contingency basis. This will have serious ramifications. Why would any lawyer take a case on this basis when the ultimate goal might be no more than £150,000? The lawyer’s share wouldn’t nearly cover the potential costs and therefore risking not being paid at all if their client lost.
We have arrived at a situation where only rich people, myself included, can afford to take on the media, while others just have to be beaten up and can do nothing about it. This is unacceptable and the Bill in its current form does nothing to address this important issue of affordability and accessibility to the law.
My second concern with this Bill is that it fails to be tough enough with the media. Not only because just a small minority can now afford to take the media to court, but because of the relatively light penalties given even when inaccurate, misreported or deliberately misleading words are admittedly printed.
A newspaper or magazine could decide to deliberately print a pack of lies on its front page to attract more readers at the point-of-sale, using this as a much cheaper way of boosting circulation than by engaging in an expensive advertising campaign. And why is it much cheaper? Because the media can immediately agree in communication that what they wrote was wrong and offer a pittance of a settlement – thus throwing the gauntlet down to the claimant as to whether they wish to risk going to court, with little or no apology required.
Even when an apology is given, it is usually postage-stamp-sized and not on the same page as the offending article. In most cases they are buried towards the middle of the newspaper, without so much as a picture of the offended claimant. The importance of proper, sincere and serious apologies has to be addressed. I think newspapers must be forced by the courts to print a retraction or apology on the same page as the offending item appeared and with the same prominence.
Only when we have cheaper access to the law and tougher penalties with higher damages will the media act far more responsibly. Until then, this Defamation Bill will not even begin to tip the scales in favour of those genuinely wronged.
Lord Alan Sugar is a businessman and backbench Labour Peer. This was first posted on the Labour Lords blog.