Reform Of Libel Laws Will Protect Freedom Of Expression

Jack Straw

(Jack Straw) – READERS OF THE GUARDIAN know that that newspaper has been at the forefront of championing changes to our libel laws. And with good reason. As one of the leading proponents of investigative journalism, its lawyers have frequently appeared in the courtroom, defending its right to publish information which is in the public interest.

Unfortunately, the Guardian and other media outlets have too often found themselves on the losing side of the battle. Our current libel laws, cobbled together over decades of legal practice, have sometimes proven to be a disincentive against investigating and reporting the things that matter to our democracy.

This is an issue that has been growing in importance, and urgency, over the past few years. Most recently, we’ve seen concerns about the number of costly defamation cases against respected scientists, researchers and writers.

These developments have been a matter of great concern to the government, and myself personally, and we’ve already implemented immediate actions to reform the system, such as reducing the success fees lawyers can charge for “no win, no fee” cases from 100% of costs to 10%, a figure which is much fairer and more proportionate.

And in January the Ministry of Justice established the libel working group, including media and legal representatives, free speech campaigners, and members of the scientific and academic communities. Their report, published this week, makes some useful proposals.

Together with the responses we received to our recent consultation on defamation and the internet, and the recent report of the department of culture, media and sport select committee, we will use these recommendations to develop further reforms which will protect freedom of expression while continuing to ensure that individuals who are the subject of defamatory reporting have access to justice.

Today we’ve announced that, if re-elected, we’ll be pushing ahead with action on a number of issues. We want to make changes as speedily as possible, but in some cases this may need legislation. We have therefore signalled our intention to introduce a draft Libel Reform Bill in the next Parliament.

The main areas we are looking at are threefold. Firstly, we’ll be introducing a single publication rule, under which a defamation claim will have to be brought within one year from the date of the original publication. The interests of people who are defamed will be protected by giving the court the power to extend this period where necessary.

This element will specifically tackle the problem of internet publishing, and the way the law currently allows defendants to be taken to court every time allegedly libellous content is accessed online. This causes great uncertainty, as publishers are effectively subject to open-ended liability. Clearly, our current laws are not fit to handle the realities of the 21st century media landscape and internet use – this change will address that.

Secondly, the Bill will include provisions to prevent the growth of so-called “libel tourism”, which some believe has been increasing rapidly in recent years. I’m asking the Civil Procedure Rule to consider tightening the rules where the court’s permission is required to serve defamation cases outside England and Wales. This will help head off inappropriate claims at the earliest stage and stop them from reaching court.

Finally – and perhaps most importantly for the media – we’ll be looking at whether to introduce a statutory defence to protect publications that are in the public interest. A statutory public interest test which is clearly and simply expressed could help ensure that the work done by journalists, scientists and NGOs to investigate and inform the public can continue – while also preserving the right we all have to protect our reputations.

These changes build on the discussions that have taken place over the last two months among the members of the libel working group, all of whom have made a very valuable contribution to the debate.

This is only the start of the reform process. We’ll continue to consult with the media and legal professions, NGOs and the public as we develop our thinking further.

The English legal system is something we should all be proud of. Fair and open court proceedings, access to justice for all, and equality before the law are some of the basic tenets of our democracy, and these need to be valued and protected.

The last thing I want to see is our libel law being used to bring our legal system’s reputation into disrepute. From people bringing their claims in English courts despite there being little or no link to this country, to the high costs of defending a court case discouraging journalists and editors from pursuing and publishing stories the public should know about – these have a chilling effect on freedom of expression and are matters of concern to us all.

At the same time, we also need to ensure that there is not a publishing “free-for-all”, when articles of no public interest and little factual accuracy are produced, causing harm and hurt to those involved. We do need strong, effective libel laws to protect the reputations of those who fall into this category.

The steps the government has announced today will help restore a fair balance between these two needs.

Jack Straw is the Lord Chancellor and secretary of state for justice

Libel Success Fees Could Be Cut By 90%

(Press Gazette) – JUSTICE SECRETARY Jack Straw has outlined proposals today that could see libel cost dramatically reduced with the limits on success fees charged by lawyers in “no win, no fee” cases cut by 90 per cent.

Straw announced a month-long consultation on tackling the “unjustified” success fees charged by lawyers, after which the changes outlined today could be enacted by Parliament under an “affirmative order” which would need to be debated in both Houses of Parliament.

The current law allows lawyers to double their fees under conditional fee agreements by claiming a success fee of up to 100 per cent on top of their usual fee, Straw said today that should be reduced to just 10 per cent.

A Ministry of Justice spokesman told Press Gazette that, depending on other parliamentary business, the changes could be made by the end of April and so before a possible general election in early May.

The MoJ said in a statement: “The proposal aims to prevent court costs in defamation cases spiralling out of control, deterring journalists and writers from publishing articles which are in the public interest, or forcing them to settle rather than defend defamation actions.”

Justice Secretary Jack Straw said: “Freedom of expression and investigative journalism are fundamental protections to the democracy of this country. I have recently announced a review of the law of libel, with a working group to consider whether the law of libel, including the law relating to libel tourism, in England and Wales needs reform, and if so to make recommendations as to solutions.

“I am, however, aware of the growing concern about the high legal costs in defamation and some other publication cases brought under conditional fee agreements (CFAs).

“Lawyers need to recover their costs and be rewarded for their efforts and the risks they undertake when providing people with access to justice in ‘no win no fee’ cases. But evidence suggests that the regular doubling of fees that currently takes place is simply not justified and the balance of costs between claimant and defendant needs to be reconsidered.”

The announcement follows Sir Rupert Jackson’s review of costs in the civil courts which suggested last week that success fees in libel and privacy cases should be scrapped altogether. This would require primary legislation, so won’t happen before the election.

Straw said he welcomed the Jackson report, adding “I look forward to considering the proposals in detail”, but he also said: “The case for an urgent interim measure for dealing with success fees in defamation cases has become clear; that is why I am publishing this important consultation paper today.”

This follows earlier changes to the libel rules announced by the MoJ in October which included creating a 42-day cooling-off period before claimants could start charging publishers for the cost of taking out After the Event insurance.

Press Gazette has been highlighting the injustices of the Conditional Fee Agreement system for the last two years with its Fair Play on CFA campaign.

Clegg Calls For End To ‘Stifling’ Libel Laws

(Independent) – BRITAIN’S “STIFLING” LIBEL LAWS are “making a mockery” of the justice system and risk snuffing out legitimate scientific debate, Nick Clegg warns.

In a speech at the Royal Society, the Liberal Democrat leader will blame “draconian and unbalanced” laws for the growth of libel tourism that has seen London become the libel capital of the world. His party is drawing up a package of reforms which would shift the burden of proof on to the plaintiff, decrease the size of damages awarded and introduce rules blocking foreigners from using English courts to fight their libel cases.

Existing rules allow foreign plaintiffs to use English courts to sue, even if the publications in question sold very few copies in Britain.

“Libel tourism is making a mockery of British justice,” Mr Clegg will say. In one case, a US academic was successfully sued for £130,000 by a Saudi businessman in an English court, even though the defamatory book sold just 23 copies in Britain over the internet.

“I am deeply concerned about the stifling effect English libel laws are having on scientific debate,” Mr Clegg will say. “Scientists must be allowed to question claims fearlessly – especially those that relate to medical care, environmental damage and public safety – if we are to protect ourselves against poor research, phoney treatments and vested corporate interests.”

He will also use the speech to criticise “super injunctions” sought and employed by companies to comprehensively gag the media from discussing sensitive issues. MPs and transparency groups were outraged last October when an injunction issued on behalf of the oil-trading company Trafigura not only blocked any reporting of the reasons for the injunction, but also sought to block any coverage of parliamentary proceedings involved in the case. “Our libel law and practice have turned a country once famed for its traditions of freedom and liberty into a legal farce where people and corporations with money can impose silence on others at will,” Mr Clegg will say. “I believe in raucous freedom of speech, not gagging orders in our courts.”

Jack Straw, the Justice Secretary, has already ordered a review of the libel laws, due to be completed by mid-March. The review panel, made up of academics, lawyers and newspaper editors, will look at whether a specialist tribunal should be set up to resolve defamation cases out of court.

PM Pledges Action On ‘Super-Injunctions’

(Press Gazette) – JUSTICE SECRETARY JACK STRAW is to examine the use of so-called ‘super injunctions’ following the Trafigura row, the Prime Minister told MPs today.

Gordon Brown said the granting of secret injunctions, which not only banned reporting of a story but also of the existence of the ban itself was an ‘unfortunate area of the law.’

Yesterday The Guardian reported that it had been prevented from reporting a Parliamentary question relating to oil company Trafigura because of an injunction obtained by the firm’s lawyers, Carter Ruck.

Tory MP Peter Bottomley raised the issue at Prime Minister’s question time in the Commons today, saying: ‘No court should grant such an order and I intend to report them to the Law Society for asking for the injunction.’

He called for details of secret or emergency injunctions to be placed in the House of Commons library and Press Gallery and added that any such order should be reviewed the next working day at the Court of Appeal.

Brown said: ‘This is an issue where an injunction has been awarded but it has been awarded in the context where it has to remain secret and people are not told what the outcome is generally.

‘The Justice Secretary has talked to the parties concerned and is looking into this issue.’

He then told Bottomley: ‘I hope that on the basis of what you suggest progress can be made not just in this case but more generally to clear up what is an unfortunate area of the law.’

Guardian editor Alan Rusbridger yesterday hailed a ‘great victory for free speech’ and said lawyers had ‘caved in’ over the order which prevented reporting of a question asked by Labour’s Paul Farrelly.

In a statement yesterday, Carter Ruck said: ‘There has never been any question of Trafigura applying for an injunction that had as its purpose the prevention of publication of any matter arising in Parliament. No such application has ever been made.

‘Nevertheless, as formulated (and as The Guardian apparently accepts) the Order would indeed have prevented The Guardian from reporting on the Parliamentary Question which had been tabled for later this week.’

Expenses Proposals Get Watered Down

(Telegraph) – MPS WILL NOT BE PROSECUTED for failing to declare their financial interests with a new watchdog — set up in the wake of the expenses scandal.

It is the latest climb-down by ministers who are desperately scrambling to get the new proposals in place before Parliament closes down for its long summer recess next week.

It has led some. including Nick Clegg, the Liberal Democrat leader, to accuse the main parties of blocking attempts to clean up the Commons after the disclosures by The Daily Telegraph.

Baroness Royall, the Leader of the Lords, backed down yesterday in the face of opposition from peers to key parts of the Parliamentary Standards Bill.

She removed a section from the Bill that would have created an offence of failing to comply with the register of financial interests that will be maintained by new Independent Parliamentary Standards Authority (IPSA), which is being created by the new Bill to take the running of expenses out of the hands of the Commons.

New criminal offences are also being brought in to apply to MPs, as Gordon Brown attempts to show he is trying to reform the system.

However, even before yesterday’s move in the Lords, ministers had already agreed to remove IPSA’s role in enforcing the allowances or financial conduct regime and the offence of paid advocacy.

Lady Royall did reject moves to take out the offence of an MP making a claim for an allowance using ‘false or misleading’ information; but said the Government had given ground on other parts of the Bill because ministers had ‘recognised the strength of feeling’ expressed by peers.

The slew of concessions means the plans are now so watered-down from the original proposals that some are questioning their value as a suitable response to the expenses scandal.

MPs in the Commons have already succeeded in voting down some key parts of the Bill which is being rushed through by Jack Straw, the Justice Secretary.

Yesterday Mr Straw said that despite the MPs’ expenses scandal, Westminster was ‘very clean and transparent’ compared to politics in many other countries or to the democratic system of previous decades.

He accepted that the expenses row following disclosures by The Daily Telegraph had been ‘profoundly damaging’ for Parliament; but said that politicians in other countries looked on in amazement at the controversy caused in the UK by sums of ‘a few thousand pounds.’

Giving evidence to the Committee on Standards in Public Life, Mr Straw also made the surprising statement that Winston Churchill would not have survived the scrutiny MPs are now exposed to.

… (21/07/2009) – New Law Passed To Clean-Up Parliament

… (TimesOnline, 24/08/2009) – MPs hijack expenses enquiry