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Reforming Libel - What Must A Defamation Bill Contain

Reforming Libel - What Must A Defamation Bill Contain

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Published by English PEN
Ahead of the publication of the Draft Defamation Bill, the Libel Reform Campaign outlines its blueprint for reform.
Ahead of the publication of the Draft Defamation Bill, the Libel Reform Campaign outlines its blueprint for reform.

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Categories:Types, Research, Law
Published by: English PEN on May 16, 2012
Copyright:Attribution Non-commercial


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t the 2010 general election all three main parties made a
to reform the libel laws to protect free expression. TheGovernment will publish a draft defamation bill in March 2011.
Reform of libel law will require
 • easier ‘strike out’ of trivial or inappropriate claims• more effective and clearer defencesmodernisation to accommodate the internet• rebalancing of the law to protect the ordinary individual orresponsible publishera reduction in costs (and therefore more equal access for all parties)
The measure of success will be
• whether there are fewer bullying and trivial cases• whether the chill on free speech and publication on matters in thepublic interest is reduced• whether there is improved protection for internet publication, including‘citizen publishing’ and historical archives• whether individual citizens who have been defamed by a malicious,reckless or irresponsible false allegation can gain an effective remedy
The combination of the law reforms set out below, alongside measuresfalling outside the proposed libel reform bill to reduce costs and improveaccess to justice would tackle the problems of 
• the chill on free expression and the restrictions on citizens pursuingpublic interest discussions• the outrageous costs of defending libel actions• the poor reputation of our libel laws internationally
The Libel Reform Campaign
Reforming Libel
What should a defamation bill contain?
ngland’s libel laws are unfair,unnecessarily complicated and outof date. They stifle public debateworldwide. Citizens are paying a high price for alaw that protects the wealthy and powerful fromcriticism, but offers little protection for peoplewhose reputations are genuinely damaged.
The laws are unjust:
There is an imbalanceagainst defendants; claimants can pursueactions where publication has caused themno substantial harm, and corporationscan threaten expensive actions againstindividuals, NGOs and newspapers. 
Defences in libel law are complicatedand inadequate:
The available defencesof justification and fair comment arecomplex, the courts are unpredictable whenestablishing what the defendant’s wordsmean, and whether they are expressionsof opinion or statements of fact. Hence,there is great uncertainty about whethera publisher will win if a good case isdefended. Moreover, there is no reliabledefence for discussion of matters in thepublic interest.
The laws are out of date:
The definitionof ‘publication’ in English libel law meansthat each newspaper sold, and each visitto a website page, constitutes a freshlibel. This does not reflect the age of global communication and the internet.The current law makes Internet ServiceProviders and forum hosts liable formaterial they host, putting them in theposition of judge and jury over content theymay know nothing about.
The laws are stifling debate:
thecomplexity of the law means cases can takeyears to resolve; they are heard in the HighCourt and often cost more than £500,000 tofight. Rich organisations can exploit thesehigh costs to force retractions of materialthey simply don’t like, and cause people tocensor information and opinions from thepublic domain.Reforming the laws to protect free expressionand the rights of the citizen critic requiresfundamental changes, which can only be madeby Parliament.
The problems with England’s libel laws
On 23rd March 2010, ourMass Lobby for LibelReform filled the biggest Select Committee room inParliament.
1. Easier ‘strike out’ of trivial orinappropriate claims
1.1 Higher hurdles for launching a libelaction
To avoid the expense (and the associated chill)of a libel action that falls below a reasonablethreshold of likely harm in a jurisdiction coveredby the courts of England and Wales.
For proceedings to be served, claimantsshould be required to show that publication inthe jurisdiction is likely to cause serious harmto their reputation in England and Wales,given the extent of publication outside the jurisdiction.
2. Stronger defences
2.1 A statutory public interest defencewhich is clear and effective
To recognise the public interest in free debateabout matters of power and responsibility, toprotect the citizen journalist, to hasten resolutionand to overcome the current restrictive, national-media oriented common law Reynolds defence.
It should be a defence that the publication,whether report or opinion, was on a matter of public interest. This defence would be defeatedif the publication was malicious or reckless.Any requirement of responsible publicationmust allow for the nature and context of thepublication.
2.2 Fairer defence of justification(truth)
To resolve ambiguity in meaning, where thedefendant claims the words are justified, infavour of permitting publication rather thanpunishing it.
The meaning of the words complained of should be one which the defendant reasonablyintended; and which is likely to have beenperceived by the reader, rather than anypossible meaning asserted by the claimant.
2.3 Strengthened defence of fair comment (honest opinion)
To replace the existing fair comment defencewhich is not well defined, and is overlycomplex.
The defendant should merely be required tohold the opinion honestly, based on one ormore facts known at the time. The defenceshould cover all expressions of opinion.
2.4 Extension and updating of statutory qualified privilege
To ensure that the statute is up to date andconsistently applies the principle of qualifiedprivilege (which describes privilegedcommunication where there is some protectionfrom libel action — such as the fair and accuratereporting of parliamentary debates and theprovision of timely information about courtproceedings) in accordance with the need toprotect the public interest in transparency.
Qualified privilege should include moreinternational settings and meetings, includingthe proceedings of NGOs and scholarlyresearch.
What a defamation bill should contain
On 14th March 2010 our BigLibel Gig sold out the 1700seat Palace Theatre.

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