by Tony Jaffa, Partner, Foot Anstey
The General Election campaign is nearing its conclusion, and the candidates are pulling out all the stops for your vote. The promises, the hustings, the baby kissing – it’s all there, and more.
But there’s an equally fierce battle just about to start, not for the future direction of the country, but about the future of English libel law. What have these got in common? Democracy and freedom of information for a start.
For example, do you value the way this newspaper tells you what’s going on in your neighbourhood? Do you want to ensure that the paper holds your NHS Trust, your Council, the public bodies which spend your millions of tax pounds, to account? Do you value the editor’s willingness to stand up for the independence of this paper and to bring you the news that the rich and powerful, or at least some of them, would prefer to keep safely tucked away from public scrutiny? And perhaps most important of all, do you value the ability you have to express your opinion in public on the pressing matters of the day?
If your answer to any of these questions is “yes” (and I’m betting that most people will have answered “yes” to all of them), then the outcome of this battle over the future of libel law and its effect on freedom of speech, will be of great interest to you. Let me explain what I mean.
The chances are that you fall into one of two camps. On one side are those who think that the press frequently goes too far, and believe that it is only right and proper that people whose reputations have been harmed in any way should have the right to go to Court with a view to restoring their good names, whatever the cost. On the other side are those who think that the right to free expression is under severe threat because it’s far too easy to bring a libel action, and that the cost of defending free speech has become prohibitive.
Me? I’m somewhere in the middle, with a bias in favour of freedom of expression. But then you would expect nothing less from a lawyer who advises this newspaper (and quite a few others) on all aspects of libel law!
So having nailed my colours to the mast let me tell you what has been going on recently.
England’s law of libel is well established, and can trace its roots back through the centuries. But as we approach the end of the first decade of the 21st century, it is widely accepted that the law has become unbalanced, and is too heavily weighted against freedom of expression.
The consequence of that imbalance is a real reluctance on the part of the press to report contentious news and views for fear of being sued – the so-called “chilling effect”. Bearing in mind that defending a libel action can be phenomenally expensive, it’s hardly surprising that editors have to be cautious, no matter how legitimate the story might be.
The obvious thing to do, therefore, is simply to reform the law, and get the right to reputation and the right to freedom of expression back to equilibrium.
But therein lies the rub. How do you go about achieving this, when both sides are so far apart and rarely agree on anything?
The Ministry of Justice’s reaction was to establish a non-political “Libel Working Group” at the beginning of the year. I think their idea was that if you put 17 leading libel lawyers, academics, and lobbyists in the same room, and don’t let them out until they come up with a blueprint for reform, then you will have a pretty good chance of getting some worthwhile ideas from them!
Well, in truth, it wasn’t quite like that, but as a member of the Working Group, this is how it sometimes felt to me!
After a series of meetings in London the Working Group produced its recommendations at the end of March. (If you are interested, you can find it on the MoJ website, at www.justice.gov.uk/publications/libel-working-group-report.htm ).
Briefly, we were able to identify a number of areas which are in need of reform. But perhaps inevitably, there was no consensus on how, or to what extent, these specific issues should be reformed. On the plus side, various remedies were identified, so the next Minister won’t be able to say that she/he needs more information.
With all the main parties pledging to reform libel law in favour of freedom of expression, and with the next Government already having a blueprint from the Libel Working Group, the question is not whether the law will be reformed, but when and how.
Which brings me back to where I began: with both sides knowing that reform is coming, the skirmishing as to what should be done has already begun. Only last week, the Libel Reform Campaign hosted a hustings at which big hitters from the three main parties set out their stalls on this very issue.
And come May 7th, whatever the colour of the new government, one thing is certain – the battle for reform will well and truly commence.
Foot Anstey
Foot Anstey is the largest law firm in Cornwall, Devon and Somerset with centres of excellence in Truro, Plymouth, Exeter and Taunton. The firm gives specialist advice to businesses, public sector organisations and individuals both regionally and nationally. Foot Anstey’s commitment to client service resulted in it becoming the first law firm in the UK to achieve the Law Society’s national award for “Excellence in Practice Standards.” For background on the firm please visit www.footanstey.com
