thank you.

In the US, public figures have to prove malice in order to mount a libel action against a publisher (in English law, malice is only a factor in determining damages) and this has created a gaping loophole in their defamation law in which an entire industry based on spreading made-up celebrity ‘gossip’ has flourished.

Not sure I agree with your point, or Organic Cheeseboard’s point, here. Companies being able to stop investigative journalists from collecting and publishing evidence of their wrongdoing is obviously a problem, and one that urgently needs resolving.

But I’m struggling to work out why supermarket tabloids being able to publish, non-malicious, daft nonsense about celebrities should be seen as a problem at all. It’s a game; the celebrities and publishers are both playing it for money; the readers are playing it for amusement; and nobody believes it’s anything else…

So as far as I’m concerned, a US rule where publishing whatever you want about companies and celebrities is fine unless malicious (but publishing nonsense obviously gets you the reputation as a comic rather than a newspaper), but publishing falsehoods about private individuals is treated as seriously as it is now, doesn’t have any drawbacks.

One libel reform I would like to see is that where a newspaper had written a deliberately untrue story and lost the libel action, instead of just having a monetary award against them (which is usually a few hours’ profit for the likes of News International, i.e. well worth it so long as the lie raised sales a bit) they should be compelled to give the same space in their newspaper to the victim to write whatever they liked.

There is another issue of course, which is newspapers telling deliberate and outrageous lies, often on their front page, which are carefully written to avoid libelling any individual person, leaving no recourse at all.

Perhaps time for a collective libel law to stop lies being told about groups like asylum seekers? Ok, so I’m not being entirely serious, but it would be nice if we could find any kind of solution to what seems like a far bigger problem than celebrity tittle tattle, however odious that may be…

John:

The point I’m driving at there, which maybe I’ve not expressed very well, is that if we’re going to make adjustments to the manner in which privilege and malice are applied in English libel law, starting from where we are now, then I can see no compelling reason for framing those adjustments in a way that would benefit the likes of Bella or Heat.

In short, fuck ’em and let them take their chances with the law pretty much as it stands, because it really is no skin off my nose if they get sued for making up stories about slebs having hissy fits and fuck knows what else.

They’re not important – protecting political speech, whistleblowing and scientific debate are.

‘Political speech, including criticism of politicians and public officials, which is absolutely necessary in a democracy, is one such category and one that the European Court of Human Rights already recognises as meriting an enhanced degree of legal protection. Whistleblowing is another, as-  to my mind – is scientific ’speech’ founded on evidence. Libel hearings are no place to resolve disputes over the merits, or otherwise, of claims which purport to be based on scientific evidence.’

Add in a protection for blasphemy too, potentially as important in the 21st Century as the freedom to criticise politics or make scientific judgement, as they increasingly conflict or interact.

As I said, that list is not exhaustive, so I welcome any suggestions for addition together with debate on the principle that some forms of speech are actually deserving of greater protection as a matter of public good.

@3, OK I see where you’re coming from, but I think it’s dangerous – a lot of the really bad stuff that’s crept in over the last few years stems from the adaptation of privacy law, derived from sleb cases, to proper-news cases.

If it’s possible for Carter-Ruck to claim that a given whistleblowing/political/scientific case has *elements* that fall under your tittle-tattle exemption, then they’ll exploit that. Much safer to say “no, Bella doesn’t deserve protection, but nor does Posh Spice, and society is far better off if we unjustly protect Bella while defending Private Eye than if we unjustly protect Posh Spice while defending, erm, nobody” (because the rules would still be as-now for non-public figures).

‘As I said, that list is not exhaustive, so I welcome any suggestions for addition together with debate on the principle that some forms of speech are actually deserving of greater protection as a matter of public good.’

Listening to a debate on Mill yesterday (I don’t make a habit of it) I heard his argument that behaviour deemed to be offensive if performed in public, and therefore subject to sanction, should be permissable in private to allow for experiment in life styles or some such; this could be a defence of statements made in private but leaked into the public sphere.

A right to privacy, and to argue freely before presenting conclusions in public, or just to gossip, should be maintained.

@6

If you look at how the US approach to malice has evolved its actually gone in the opposite direction to the evolution of privacy in the UK inasmuch as it stems from the idea that a free press has a role in the democratic process and should be free to criticise politicians and public officials and then extended outward to encompass public figures in general and, today, to cover private individuals who temporarily become public figure by virtue of their involvement in newsworthy events.

What there is there is an interesting interplay between free speech, privacy and the public interest, which is where all the nuances will lie.

As I see it, there is a public interest test to be applied here on the basis of which the need to demonstrate malice may or may not come into play.

If there’s no legitimate public interest in the matter at hand, then there would be no need to show malice before proceeding with the action.

If there is, then the plaintiff would also need to show malice, or that defendant had acted in bad faith, i.e. in the knowledge that the defamatory material was untrue or a work of fiction, in order to proceed with the action in full, the test of which would, I suspect, need to be one of reasonable belief so as not to be unduly proscriptive and unbalanced towards the defendant.

A right to privacy, and to argue freely before presenting conclusions in public, or just to gossip, should be maintained.

Of course – the purpose of defamation law is not to regulate private conduct and, as such, private conversations would continues to be treated as privileged and not actionable.

What may need some thought, at the judicial end of things, is how that principle applies to e-mails which can readily be sent to multiple recipients but still be consider, by both the sender and recipients, to amount to a private conversation.

@8, agreed, but I think the US has the right balance between privacy and the public interest, and that any protection to free speech weaker than that in the US will inevitably be exploited by Carter Ruck-ists defending crooked oligarchs and corrupt companies.

And I’m struggling to see any examples from the US where their libel system has led to actual, real-world, negative consequences for anyone, beyond being accused of being happy/sad/dopey/grumpy/Doc by a gossip rag.

Nice article. The other (complementary) approach is working through the courts, to challenge the scope of injunctions and the ease with which they are granted.

The Norwegian broadcaster NRK has been an unsung hero in all of this, able to put online both the Minton report and the original injunction against the Guardian. Why could they do that? Because, a few years ago, NRK broke an injunction, defended itself in court, and so set a precedent making it much harder to get anti-publication injunctions in Norway. As one of their lawyers writes:

Although, of course, violating an injunction is generally a criminal offence, as NRKs counsel I argued that a) the injunction was itself a violation of the ECHR article 10, and that b), if the courts agreed on that point, punishing the editor for violating the injunction, would be yet a violation of ECHR article 10…. Our case was successful, and as a general legal consequence, today it is virtually impossible to succeed in an application for an injunction against the media. Lesson: A little “civil disobedience” could maybe rid British media law of the injunction-censorship-monster…

But I’m struggling to work out why supermarket tabloids being able to publish, non-malicious, daft nonsense about celebrities should be seen as a problem at all.

Think of Borges’s Library of babel, which contains, somewhere ‘ every coherent book ever written, or that might ever be written, and every possible permutation or slightly erroneous version of every one of those books’.

In other words, it contains nothing useful: zero information.

The same applies to public information without some form of quality control, a function currently partially handled by the libel system.

Say of the seven companies in a field, one was significantly less ethical then the other six, and wanted to conceal that fact (if only form the investors it was planning to rip off). Currently, it would do that by keeping it’s shadiest dealing on the down-low, and engaging one of those law firms with names out of a cyberpunk novel to prosecute whistle-blowers.

With no libel laws (or equivalent replacement), what it could do instead is plant fake stories about each of it’s’ six competitors. This has the same net effect – it gets seen as no worse or better than anyone else. With corporate backing for a a marketing department making up smears, they are likely to be far more well-documented and convincing than anything a whistelblower can come up with.

If 99.9% of stories about dumping toxic waste or exploiting child labour were basically marketing gimmicks, they would all be equally ignored. Any whistleblower would be silenced more effectively than by any firewall or lawsuit: anyone can hear what they say, just no-one believes it.

@12
That only works if you assume newspapers have no interest in cultivating a reputation for printing the truth. Which probably applies for supermarket comics, but not plausibly at FT/WSJ, or even Gruaniad/Times, level.

The Internet is a good analogy there: yes, it’s a Library of Babel, but it’s also ranked and indexed by credibility. So you can read insane conspiracy theories about more or less anything online, but if you’re looking for accuracy rather than amusement you can also very easily filter down to the ones reported by credible media outlets. Sites that report loony things lose their reputations as credible media outlets, and Ranting Bob’s Crazy Site Of Lies shows up as hit number 50,000 on Google.

(see also: how the current libel laws do absolutely nothing against tabloids printing sleb lies)

With regard to the burden of proof, it is extremely hard to prove that something isn’t true. Let’s say for example that the Daily Beast runs a story that the right hon A N Other MP has been taking bribes from corrupt Russian oillmen. How is the MP to prove that he hasn’t? Proving negatives is almost impossible.

It does not strike me as particularly unreasonable that if you make defamatory statements about somebody that you should have to demonstrate their truth.

Likewise wrt the presumption of damage. It is already the case that the claimant has to demonstrate damage, unlesss the statement was of a type that is presumed automatically to be damaging – like allegation of a crime for example. The example everybody knows is Berkov v Burchill – is being called hideously ugly defamatory? No, because no damagesos caused to reputation.

I agree with the need to reform the multiple publications rule, especially wrt t’interwebs. I think legislating to make lying illegal might prove a touch problematic though…

@13: if you look at the actors currently immune to libel laws (states, mainly), it’s pretty clear they can quite successfully game journalists into printing pretty much whatever they want.

I don’t see where they are going to get the extra capacity to sort through a vastly greater quantity of lies from more sources. And even if one or two succeeded, they wouldn’t get any real reputation benefits from doing so, because all the competing newspapers would just run bogus stories about how they lied anyway.

(See just about every Mail and Times stories on the BBC ever).

Thanks. I look forward to digesting it properly.

I think the post helps to clarify that we could do with.
– Broad principles/objectives of reform which might command consensus
– Specific proposals (such as these) which meet these by particular responses to problems in the current system

There is no doubt that the issues will be contested, including some regressive moves. (Newsnight last night included a lawyer questioning Parliamentary privilege as a response to yesterday’s events!)

One part of that challenge is that the internet discussion will (compared to say mainstream media; legal; parliamentary) tend to be
– broader
– more libertarian
– more internet-focused (which is a good idea; there are emerging problems).

I think we lack forums for the type of political negotiation between types of perspective, which might help to prioritise and establish key messages about what should change much more concretely than is now the case.

My thought is that if more people tried to do what you have done here and put up “three changes I would like to see” we could try to develop a sense of how far liberal ngo, media, legal, political and blogosphere voices might agree on some points of consensus about reform/campaigning priorities, even while not agreeing on everything, and indeed agree on strategic/tactical/process points about how to pursue reform in practice.

I could imagine the Liberal Democrats in particular becoming one good site of engaged debate about tensions and trade-offs, where some of the liberal/libertarian and more ‘establishment’ liberal political/legal voices might engage over the details, though I acknowledge there are lots of centre-right and libertarian voices involved in this too.

And I would like to see some of us in the Labour Party get our party on the right side of a major civil liberties issue too!

‘It does not strike me as particularly unreasonable that if you make defamatory statements about somebody that you should have to demonstrate their truth.’

Or at least that there is sufficient evidence that a reasonable person could have believe there is a case to answer, but this brings us a long way from ‘proof’ in a legal sense because ‘sufficient evidence’, ‘reasonable person’ and ‘case to answer’ are so vague there will never be an agreement on what they mean.

Personally I find celebrity gossip vaguely repellant but that’s just personal distaste, not principle; on this, and a preference for real ale, I’m a snob. I’m not sure it should be a matter for the state.

Of course – the purpose of defamation law is not to regulate private conduct and, as such, private conversations would continues to be treated as privileged and not actionable.

Depends on the ‘private conversation’, doesn’t it? Private conversations by email are still considered ‘publishing’ from the point of view of libel, which seems like another problem with current libel law.

One other item that needs to be reformed is the cost of defending an action.

Currently, people are bullied by the ridiculously high costs that are involved and will cave in to this pressure even if they have a good case to present.

My thoughts. In short: capping all costs awards at legal aid rates would be a bloody good start (and indeed, not just in libel law: it’d be a very nice, drawback-free piece of tort law reform).

Mmm… well yes, the cost issue is an important but slightly separate area which is ripe for reform, and pegging cost awards to legal aid rates is a damn good starting point to work from.

On the costs front, I think there’s also scope for exploring the idea of a small claims tribunal and an arbitration scheme, both of which would prove attractive to local/regional newspapers where the costs of a basic high court action are typically out of all proportion to the damages sought.

And, actually, we might have fewer libel actions against newspapers if the PCC weren’t such a bunch of ineffective tosspots.

Good news for Simon Singh, anyway: Judge Eady’s preliminary ruling against him has been overturned.

I think the better response to sleb nonsense is to professionalise journalism; if the sleb could appeal to a General Jounalism Council to get the journo struck off for printing a story they hadn’t done any checking on then that would deal with the low standards of slbe stories without having any effect on serious journalism.

Struck-off journalists would still be able to publish whatever they wanted, just (probably) not in a newspaper. Make journalist a protected title (like doctor or engineer) while you’re at it,

I don’t like the ‘bubble bursting’ principle at all. I’d support a stronger basis in law for the ‘Reynolds defence’: roughly speaking, that writers or publishers aren’t guilty of libel if they made a rigorous attempt to investigate a matter, including putting any defamatory accusations to the person or persons involved and asking for their response, and came to a reasonable conclusion on the basis of all the available evidence.

As things stand, the Reynolds defence has been accepted as a possible defence against libel by the Court of Appeal- which helpfully even spelled out the steps a publication would have to take to successfully use such a defence. Unsurprisingly, the British courts have yet to accept that any publication has actually published a story covered by the Reynolds defence, so the protection it offers is theoretical rather than real.

‘Bubble bursting’ would mean that a (well-funded) newspaper could print unpleasant allegations against someone with less resources, and the defamed person would then face having to prove a negative in an expensive court action. A ‘Reynolds defence’ would commit the newspaper to thoroughly investigating the allegations first, including privately asking the person accused what they had to say: not perfect, but much more likely to protect the rights both of publishers and of genuinely libelled people.

Unity,

Excellent article.

Ré your comment at 25. Would you see a small claims tribual as the starting point for all libel actions, with no exceptions? For that would be useful in trivialising the imbalance that the powerful appear to have, without necessarily denying remedy.

How do you frame the protection of scientific debate points?

Bearing in mind the Singh case (i.e., pseudo-science), but also that established “scientific” theories have been simply wrong, and that derided theories have been right (e.g., Plate Tectonics).

Matt Wardman,

If the legal profession can invent super injunctions, it cannot be beyond the wit of man to develop super protections.

I have to be careful here, but attacking the British Woo Society and saying they are full of shit, should not, it seems to me to be legitimately actionable unless you take the truly oddly entrenched legalistic view that a group is an individual, with rights, etc.

Attacking an individual member of the British Woo Society and saying that Mr X is full of shit should be subject to individual action and be open to defences of ‘fair comment’ and ECHR Article 10. ‘Course Mr X might be right and this would come out in a judgement….

Mr Singh seems to me to have run up against this idea that an abstract is a real person.

And, frankly a Court of Law nor, dare I say it, a web site, is anywhere worth trying to resolve scientific debates.

Dan:

I think you misunderstand the point about ‘bubble bursting’, which is fair enough as its a pretty technical point.

To clarify, the Reynolds defence is effectively a claim of qualified privilege based on a ten point test set out by Lord Nicholls in the House of Lords ruling in Reynolds vs Times Newspapers Ltd.

The bubble bursting principle applies to the trial process and to the establishment of fact relevant to the case, so…

If a newspaper is sued for libel buts seeks to deploy the Reynolds defence then, at either trial or, more commonly, at a preliminary hearing, the newspaper will present evidence to the court in an effort to establish, as a matter of fact, that it complied with each of the ten points of the test and is, therefore, entitled to qualified privilege.

Once the evidence is presented, the plaintiff is afforded the opportunity to provide their own evidence in rebuttal of the evidence provided by the newspaper.

If the newspaper successfully establishes that complied with the ten point of the test, then it is a matter of fact that they published under qualified privilege. If, however, it fails on any point of the test then the bubble burst and that defence is not open to them.

The bubble bursting principle is not alternative to the Reynolds defence, which should actually be strengthened by incorporating it into statute, its merely part of the process by which the defence is established, or not, according to the facts of the case.

How do you frame the protection of scientific debate points?

With a two part test.

In the first instance scientific debate is unequivocally in the public interest and, as such, if its established that the allegedly defamatory speech forms part of such a debate then the plaintiff will have to demonstrate evidence of malice in order to mount a case.

In the second instance, a test broadly similar to that of the Reynolds defence would be made available to defendants which, if successfully argued, would afford them the protection of qualified privilege.

As for what that test might look like, some elements that would be part of the test, as I see it, would be derived from the Daubert Standard, which is discussed here – http://www.ministryoftruth.me.uk/2009/10/15/simon-singh-and-the-daubert-standard/ – in the context of its potential relevance to Simon Singh’s case.