When I heard someone say at last week's excellent Westminster Legal Policy Forum on Libel & privacy law - challenges for reform that, in effect, the British Chiropractic Association v Simon Singh case was an example of libel law working, I was astonished.
My immediate reaction was if that case was an example of libel law working, then I would hate to see an example of it failing.
However, the person who said that was Professor Gavin Phillipson, one of the most insightful and interesting academic lawyers writing on libel and privacy law.
Anything Professor Phillipson has to say on media law is worth considering carefully, and I thought his was a point of view worth sharing with the followers of this blog in particular.
However, I was anxious not to misrepresent his view and so, with his kind permission, I set out his comments in full below:
"The campaign for the reform of the law of libel has been a wonderful thing in forcing this issue onto the public debate.
"It is, however, certainly not the case that English libel law had become more draconian in recent years.
"On the contrary as Professor Mullis and others have pointed out, all the major changes in recent years have been in favour of the media: the development of Reynolds privilege from 1999 and its strengthening recently in Jameel; the introduction of the offer of amends procedure; and the ability of the Court of Appeal to control the award of damages by juries.
"What I think led to this campaign was developments elsewhere: the introduction of conditional fee awards, which allowed more people to sue; the rise of the internet, which hugely increased the scope for defamatory allegations to be read across the world, thus increasing the choice of possible fora for legal action; the practice of newspapers and NGOs maintaining vast online archives combined with the effect of English law’s archaic multiple publication rule, meant that such bodies faced liability for defamation that was essentially indefinite in time (this is because English law treats each time an article is download and read as a fresh publication, giving rise to fresh liability, meaning that in effect, there is no limitation period for libel).
"English law has not recently become more claimant-friendly, rather the reverse; but the rise of the internet and the globalisation of legal services has recently extended the practical effect of English libel law as a potential restriction on free speech.
"This in turn means that we should be very cautious before accepting that sweeping changes to the law of libel are needed.
"The Simon Singh case - one of the catalysts for the campaign – is illustrative. I am delighted that Simon won his appeal. But whether, as some claimed, his victory proved that more reform of the law is needed I am rather doubtful.
"One might well argue that it showed that the defence of fair comment in the substantive law of libel was sound in that it eventually produced the right result; but that reform is needed to the way that costs are charged and awarded."
Is he right on this?
Is the only reform which should follow on from BCA v Singh a reform to the way that costs are charged and awarded?
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