Monday, 28 June 2010

Towards the Lord Lester Libel Bill

Lord Lester has published a libel reform Bill.

This is a significant event in the movement towards libel reform; however, one must be careful not to overstate its importance.

It is undoubtedly significant because this is the first moment various proposals of the libel reform campaign have been translated into the precise legal drafting of a Bill.

(A note on jargon: a Bill is the name for a piece of primary legislation as it passes through parliament; once passed it becomes an Act; also note Bills have clauses, whilst Acts have sections.)

By securing a second reading debate on in the House of Lords on 9 July 2010, Lord Lester has ensured that libel reform will be the subject of a proper parliamentary debate and a formal government response.

And because the Bill covers a number of aspects of libel law (other than costs), the debate and the government response are both potentially wide-ranging.

This can only be good news for libel reform.


There is a serious but.

The debate on 9 July 2010 could well be the end of the story, at least for another fifteen to eighteen months.

The Coalition government has not committed itself to any parliamentary time for libel reform in the current legislative session, a session which could last until November 2011; similarly the Ministry of Justice has not committed any departmental resources to putting a Bill through parliament.

Lord Lester's Bill is a private member's Bill; so unless the government provides time and resources to supporting its progress through parliament, then the Bill is likely to just be a Fail.

However, if the Bill which does go forward from the debate on 9 July 2010 is not actually a good Bill then it may be that such a Fail is not really a problem, and the libel reform campaign should look forward to the 2011-2012 session.

So a great deal rides on what happens on 9 July 2010: what the Bill looks like, and what the government's response will be.

As with the internet-based interest which was shown in the passage of the Digital Economy Bill, and indeed also in the British Chiropractic Association v Simon Singh case, it will be important for those who are seeking libel reform to keep an informed watch on the Bill and the debate.

For the passage of the Bill, the key website to bookmark is here.

(The Bill is available both in HTML and pdf.)

This Blog will also shortly commence a critical series of blogposts looking at key parts of the Bill, and these blogposts will lead up to the debate on 9 July 2010.


No purely anonymous comments will be published; always use a name for ease of reference by other commenters.


Crispian Jago said...


The very first clause in the bill states:

(1) Any defendant in an action for defamation has a defence if the defendant shows that—
(a) the words or matters complained of were published for the purposes of, or otherwise in connection with, the discussion of a matter of public interest;

This immediately sounds like it would have been of use in ensuring that the Singh BCA case would never have got off the ground as the article published was clearly a matter of public interest.

But what does “A Matter of Public Interest” really mean?

If Footballist A shags Slapper X, who then publishes sordid and defamatory details of the affair that affects the career of footballist A, I would see that as a private matter and therefore a libel suit could not be avoided by Slapper X invoking the above clause.

However, said shag is likely to induce copious tabloid newspaper interest suggesting that there is in fact massive public interest therefore absolving Slapper X.

Hence my question, Does “public interest” really mean “public interest” or does it perhaps mean “public value”?

Tony Lloyd said...

It mostly looks very good. One exception is the first condition that needs to be shown for a defence of honest opinion:

“an ordinary person would reasonably consider [the words being sued on] to be an opinion.”

The difficulty is that the words “fact” and “opinion” are read, by reasonable people, in varying ways.

1. Sometimes “opinion” is reserved for something that is not interpersonally true or false (“what is the nicest beer”).
2. Sometimes “opinion” is used where, despite there being a true answer, that answer is unknown and so it’s reasonable to form one of a range of opinions on the matter (“does the Higgs boson exist”).
3. and many more, besides.

Without it being spelled out which particular meaning is in the bill it’s quite possible for an ordinary person to reasonably hold that “the Higgs boson does not exist” is not an opinion. In sense 1 it isn’t “a matter of opinion”, it’s either true or false and so is a matter of fact whether it exists or not.

Link the existence of the Higgs boson with a libel case and there might be trouble. Say I form the honest opinion, based on quality research, that the Higgs boson does not exist and use that to criticise someone in the agency funding the Large Hadron Collider. My headline may be “In straightened times we waste millions on hunt for non-existent particle”. (If I was writing for The Sun it might be “Bonkers Boffins Blow Billions on Bollocks”).

The fourth condition, though, gives a nice neat criterion for deciding that something is a “matter of opinion”:

“an honest person could form the opinion on the basis of the facts or material shown by the defendant”

So it would be better if the first, unnecessary and dangerous, criterion were dropped

David said...

How about clause 1 sub-section 5:

‘Where a publication reports accurately and impartially on a pre-existing matter (for example, that there is a dispute between two parties), a defendant may be regarded as acting responsibly to the extent that the court is satisfied that it is in the public interest for the existence of that matter, and anything reported in connection with it, to be the subject of a report or series of reports.’

Is that a defence for reporting on super-injunctions? (e.g. Guardian gagging wrt Trafigura, I think)