Thursday, 15 January 2009

Reforming the English Law of Libel

The English law of libel is wrong in so many ways, one has to retreat to basic principles so to work out how to deal with it.

First, there is the question of the appropriate function of libel in a modern society: what is it actually for? Those who follow British public life are used to it just being there; but those less familiar with Britain's quirky political-legal culture are bemused and uncomprehending.

Historically, the law of libel protected reputation. Over the last few decades, however, the various areas where statements can really damage reputation - professional dealings, employers' references, credit references, reports to authorities - have come under the doctrine of "qualified privilege". This means that a claimant cannot sue - even if the statement is false or grossly unfair - unless they can show that the defendant is being malicious. Absent malice there is no case to answer.

The scope of qualified privilege means that the law of libel now deals with a residuum of situations. These can include the neighbour writing false letters to the press or to neighbours; but it is now most commonly used for statements published or broadcast by commercial media entities.

Because (in my view rightly) many sensible people are appalled by the antics of the tabloid media, the law of libel has developed into the primary weapon of those who suffer (or who could suffer) by a tabloid splash, and this is at the cost to quality and responsible journalism.

Instead of protecting reputation, the law of libel has become the vehicle for managing publicity.

That publicity needs to be managed is arguable; but that does not mean that it should be the law of libel which is used for this purpose.

Indeed, the law of libel is conceptually and practically ill-suited for such suits.

Libel is a tort, like trespass or negligence. In trespass, it is enough to show that the trespasser is on your land; in negligence, it is enough to show that you have suffered an injury caused by the breach of a duty of care. Similarly, and not unsurprisingly, the law of libel merely required the claimant to show reputation had (or could be) suffered by a statement. Reputation was treated like property or personal safety; one had a "cause of action" when it was interfered with. To this day, libel - like trespass - is actionable per se - one does not even have to show loss to be entitled to a legal remedy.

But when libel is taken from its true function of protecting reputation and used instead to control publicity, the problems and abuses begin to manifest and multiply. If I trespass on your land, I have a defence if I have a licence (ie, permission); and there is no injustice in the court's requirement that I prove that I have a licence. However, if your reputation is damaged by my libel, there can be injustice in the requirement that I prove it is true or a "fair" comment. Such an onus on the defendant, which is appropriate in trespass case, is inappropriate in a libel case.

This is the "reverse standard of proof" for which English libel law is both famous and infamous. But it does not need to be this way. There is no reason for the tort to have such a legal structure. For example, a claim for negligence has to show that (a) there was a duty of care, (b) which was breached, and (c) which caused loss. Closer to home, the (under-used) tort of "malicious falsehood" requires the claim to show both malice and falsity.

In libel, therefore, there is no good reason why it could not be reformed so that it falls to the claimant to show not only that reputation is damaged, but also that the statement at issue is false or unfair. From a technical point of view, the effect of such a reform would be neutral - the same things would have to be shown for a claim to ultimately succeed - but in practical terms the change would be profound.

At a stroke, in my view, many of the abuses of English libel law would disappear.

It is the current ability of a claimant to get the claim off the ground, and so force the defendant to chose to either expensively mount a defence or surrender, that opens up the opportunities to exploit "conditional fee arrangements" and "libel tourism".

There can be no objection to such a reform from a legal perspective; it merely aligns the tort of libel with the torts of malicious falsehood and negligence rather than the tort of trespass. Such a reform would not even need legislative intervention: the law of libel is common law, and it is open to the English courts to reformulate the elements of any common law tort.

There are other changes would which could be made, though these are less urgent. For example, the basis of the award of damages could be modified.

Currently, the claimant can sue for "general damages". This is the amount which the court awards for the libel. The court can also award "specific damages" for actual, provable loss. The court can also grant an injunction or make a declaration.

In my view, general damages should now only be awarded for malice or if the defendant has not made an appropriate apology or correction. This would not be a difficult change to make - the courts are already experienced in dealing with malice in the context of qualified privilege. If the law of libel is actually to deal with reputation then injunctive or declarative relief would be sufficient to address the injury suffered.

Another reform would be to limit the circumstances where a libel claim can be brought without loss. This is already the case with slander, where claims can only be brought without loss in the context of business or professional reputation.

In reforming libel, however, sight should not be lost of the wider legal context.

As I said above, the law of libel has been distorted as it is (currently) the easiest legal means to control publicity. The demand for a legal way of doing this will remain and may distort any reformed law of libel.

Accordingly, the law of libel should not be treated in isolation.

Libel is one of a vast range of legal means of dealing with unwelcome statements.

Some of these means are also torts or other "private law actions" where one person sues another- slander, malicious falsehood, privacy, confidentiality, nuisance, and copyright.

Other means are criminal sanctions, where the State prosecutes the individual for a mere statement - deception, official secrets, incitement to religious or racial hatred, obscenity, outraging public decency, public order offences, even some terrorism offences.

And then there are regulatory means, where a person can complain to a specialist body - Press Complaints, Advertising Standards, Trading Standards, the Information Commissioner, and (of course) the local authority if the statement is being made far too loudly by your next door neighbour.

Overarching all these legal means is the qualified right of free expression under the Human Rights Act. This creates a presumption that any expression is lawful, unless there is public interest in it being limited.

Any reform of libel should have regard to this legal context.

In my view, the developing law of privacy - where the claimant can have protection against public statements about private matters without having to (artificially) show that it affects reputation and where it does not matter if the statement is true or false - and the law of malicious falsehood can be left to deal with managing publicity.

A select committee of the House of Commons is examining possible reforms of libel law, so a reform may even happen soon...



Reform is good thing, certainly.

But could the libel law be abolished at all? What do you think about such way as a specialist in the field of law?
Some countries has not the libel law at all. None of them started to live worse because of it.

LeeT said...

I would be very surprised if there any jurisdictions which do not have any libel laws at all.

I seem to remember reading that courts in the state of New York recently decided that they were not going to enforce judgements of English courts relating to libel. A sad day for justice.