Libel Reform: Free Speech Is Not For Sale

Over the last year two distinguished pressure groups, English Pen and Index on Censorship, have conducted a joint inquiry into English libel law.

I was one of many bloggers and lawyers who participated in this inquiry. Numerous journalists, publishers, and NGOs, were also involved. In particular, I attended two wide-ranging and enlightening roundtable discussions.

However, I had no idea as to what the inquiry's conclusions would be, or indeed how any eventual report would be structured or presented. Indeed, I had no notion whether anything would come of it at all.

The report of the inquiry was published yesterday: Free Speech Is Not For Sale.

And the report is excellent and important.

It should be read by anyone concerned at the awful state of the English law of libel and what can be done about it.

For me, there are a number of reasons why this report is so significant.

First, and - in my mind - most crucially, the report correctly emphasises that libel should be about the lawful protection of reputation. Often discussions about the abuses of libel law, and how it can be reformed, seem to overlook what libel law is supposed to be for in the first place.

Unless one works outwards from the appropriate function of such a law in a modern democratic society, then any reform will probably be ill-conceived.

Here the report get this fundamental point right and, for this reason alone, regard will have to made to this report in any serious discussion about libel reform.

Second, the report is practical. It identifies ten areas of libel law which require reform, explains why this is so in each case, and then makes a simple and sensible recommendation.

The ten areas are set out at the executive summary here, with the recommendations.

Third, the report has an empirical basis, and it contains sixteen case summaries where libel has been recently used in a way which would concern any layperson. These cases are listed up to and including the British Chiropractic Association's misconceived claim against Simon Singh.

Some of these cases were new to me, and - quite apart from the recommendations - the report will become an essential reference tool for informed debate about libel reform.

The accumulation of actual examples substantiate the general concern that there is something wrong. Here the report complements the great work being done at Sense About Science in collating instances of libel chill in the scientific community.

As a Geek myself, I have always wanted libel reform to proceed as far as possible from a solid factual basis, rather than being led by abstract, high-level complaints.

Fourth, the report and its launch represent a broadening of the coalition for libel reform. Senior lawyers, both in private practice and in-house at newspapers and publishers, are now fully engaged. At the launch yesterday, a partner of Carter-Ruck even accepted that there had to be some change. Also attending yesterday were MPs Evan Harris and Denis MacShane: the informed involvement of parliamentarians will be critical for any legislative change.

Lastly, the report is incredibly well-written and succinct. It is not a surprise that one of the co-authors is an Orwell scholar, for the report is a perfect example of hard thinking expressed in elegant and precise prose. The report deserves to be read in its own right, as an example of pressure group activity at its best.

However, the report is only a step towards effective libel reform.

By itself it changes nothing.

Law can only be changed by influencing the legislature, or the case-by-case development of the law by the courts. It will not be enough to read and admire the report: it should be sent to every MP, senior civil servant, and judge.

Each political party should now address the report and, if possible, make a manifesto commitment to make parliamentary time - and civil service resources - available for libel reform, which should proceed on a all-party basis.

It is now undeniable that libel law needs drastic reform.

For me, this is because it dangerously elevates a private right to reputation above the need for fully-informed debates on matters of public importance, such as public health and public safety.

There are those who perhaps think that libel law itself should be abolished and that the tort of malicious falsehood should be widened instead; after all, if an area of law needs reforming in at least ten areas, then it may be that the law itself is beyond repair. I think this view has great force, though I doubt it is practical politics.

In any case, the welcome publication of Free Speech Is Not For Sale means the terms of the debate are now sharper and far better-informed; it is a necessary step towards change; but it will be for us all to now make that change happen.