Striking the balance between freedom of speech and the need to
protect reputation has always been a difficult task. Striking
that balance between the competing interests in society, between
those such as journalists who seek the right to criticise and
those who want to protect their reputations, is fraught with difficulty.
Libel law is the legal recognition of those competing interests
and the legal compromise which is struck in finding that balance.
However English libel law goes too far in protecting reputation
at the expense of freedom of speech. It is not for nothing that
London is known as the libel capital of the world.
In this paper I argue for the abolition of libel law. I do this
not only to defend free speech but also because
I see libel as an ineffective means of repairing damaged reputations.
Libel law places a fetter on free speech in many different ways.
Others have examined the harshness of libel law as it operates
in favour of plaintiffs who want to silence their critics. I will
focus on the sociology of libel law, its exclusivity and so called
chilling effect. In concluding I will be arguing for the substitution
of libel law with a right of reply scheme.
The Importance of Reputation?
Those who seek to defend freedom of speech must contend with the
importance of reputation in this society. Individuals are certainly
affected by the way that others view them. Many believe that one's
reputation governs what one can or cannot do with one's life.
A bad reputation may damage job prospects, social status and other
aspects of social existence. Whatever one thinks of the concept
of reputation it is true that the media can destroy the social
standing of individuals. Jonathan Aitken for one can testify to
this. It is therefore understandable that individuals have sought
to protect their reputations through the use of the law.
In practice however there are a number of problems bound up with
the way that libel law protects reputation. Libel law only offers
a form of legal redress for reputations that have been damaged.
It has failed to evolve and provide a remedy for those who are
completely marginalised. Yet it is this class of person who is
perhaps most in need of the law's protection. When the marginalised
are defamed in the press for failing to conform to the exacting
standards demanded of them, it is usually impossible for them
to turn to the law of libel for protection. Not only do questions
of cost usually prohibit such a step. But the remedies offered
by libel law also fail to address the concerns and needs of those
denied an opportunity to defend themselves.
Libel law's basic premise that a harmed reputation can be compensated
for by the payment of monetary damages is highly dubious. Of course
it makes sense from the perspective of one businessman suing another,
who are able to measure in monetary terms the precise cost of
a defamatory statement in reduced turnover. It is however highly
unsuited to remedying the more personal allegations that are usually
the stuff of libel suits. The payment of damages regardless of
the amount does not vindicate the reputation of the person allegedly
defamed. It may only indicate that on their day in court one side
performed better than the other.
A court of law can hardly be the most appropriate forum in which
to determine the truth of an attack on someone's reputation. This
is especially true where the matter under consideration is quite
properly a matter of public interest. The recent McLibel trial
is a good case in point. Since when has a court of law been best
placed to determine the truth or otherwise of allegations ranging
from the role played by McDonald's in destroying Latin American
rainforests through to whether or not McDonald's pays its staff
low wages or exploits young children in its advertising? These
are questions which affect the lives of millions of people. The
only forum for their resolution should lie in public debate where
all sides, Mcdonald's included, may put their views forward.
In protecting reputation libel law restricts freedom of speech
on many questions which should be matters of public interest.
One of the reasons that libel law works so well in this regard
can be found in the operation of libel law itself, which heavily
favours the plaintiff. The ways in which it does this have been
dealt with elsewhere. However a brief glance at the statistics
reveals the plainitff friendly nature of libel law.
Defendants in libel actions have an even smaller chance of success
than defendants in magistrates courts where the conviction rate
is above 80% and the criminal standard of proof applies. In the
last five years only eight trials which reached the verdict stage
resulted in a finding in favour of the defendant. Defendants in
libel trials would seem to have less than a one in ten chance
of success should they choose to fight the case to what is usually
a very bitter end.
Libel law also fails to allow ordinary people the ability to defend
themselves against defamatory statements made against them. This
is a theme I shall return to later.
Libel and Free Speech
The fact that libel law in its operation is so heavily weighted
in favour of the plaintiff is not lost on those most at risk from
the dreaded libel writ: the news media. Libel law's draconian
regime in this country ensures that it is popular the world over
with those who want to bring an action in libel. Actions that
would fail in the USA are regularly brought in Britain. Books
published in America are sometimes re-written for sale in the
British market in order not to fall foul of English libel laws.
As a result those in the media take precautions before printing
stories or running with pieces of investigative journalism. Many
newspaper articles published in Britain are checked by lawyers
before publication to make sure that any potentially defamatory
material is exorcised.
Worse still, due to the success of certain plaintiffs in bringing
libel actions some areas of legitimate public concern actively
avoided by newspapers for fear of being taken to court. For example,
the police have had such a phenomenal success rate in bringing
actions for libel that many local newspapers are no longer prepared
to run the risk of criticising them.
It would be no over exaggeration to say that libel law impinges
on the minds of journalists and editors alike when running with
controversial stories. In this climate of fear free speech and
open debate surely suffer. Had Britain's libel laws been in place
in America it is unlikely that Watergate would ever have reached
the newspapers let alone resulted in proceedings for impeachment.
Equally, with Britain's libel laws in place, many stories are
spiked in this country before they ever reach their intended audience.
It is worth asking the question: who benefits from this climate?
Whose interests are best served by libel laws that effectively
curtail free and open discussion of matters which are more often
than not legitimate areas of public concern? I pose the question
rhetorically and with good reason. It is not just that libel law
is a rich man's law. The same could be said of many other areas
of law. It is that libel law stifles free speech for the rest
of society, making an open discussion about the conduct of those
whose decisions affect our lives very difficult to have.
The Exclusivity of Libel
It is of course trite to say that only a select few can afford
the protection to reputation offered by libel law. In theory the
remedies offered by libel law are universal in application. No
class of persons is prevented from bringing a suit or defending
claims made against them. However, primarily due to considerations
of cost, libel law in practice only serves to protect the reputations
of the rich and powerful. A survey of the cases brought in the
last ten years reveals that the number of ordinary plaintiffs
appearing in libel cases, that is individuals who have no public
persona, can literally be counted on the fingers of one hand.
This is due to a number of factors. First and foremost is the
fact that legal aid is not available for libel actions. Libel
is one of the few areas of the law where there is no legal aid
provision, thus placing it immediately beyond the financial reach
of most of society.
While there can be no objection in principle to the extension
of legal aid for libel trials, there may be very well founded
objections on the basis that any such extension would result in
frivolous actions being brought at great public expense. Regardless
of such fears the political climate today dictates that there
will be no extension of legal aid. Cost cutting is the only phrase
that ever seems to accompany any discussion of legal aid in '90s
Unless the libel bar therefore agrees a savage pay cut, libel
law would appear ready to continue to be beyond the reach of the
vast majority. It is this exclusivity of libel law which most
strongly hints at its failure to deal with questions of reputation
in any meaningful sense.
Libel law in effect only protects the reputations of those in
society who least need that protection. It protects those who
are well positioned to protect themselves against scurrilous allegations
that may or may not be true. McDonald's, Jonathan Aitken and the
Metropolitan police all have the ability to counter defamatory
material published about them through access to the media. The
actions of this class of people often reduces the law to little
more than a circus for bruised egos.
The reputations of the vast majority therefore find no protection
in libel law. Indeed the reputations of private individuals are
determined through the interplay of public debate and discourse
according to the moral values of the day. This means that most
individuals are vulnerable to attack in the media and will often
lack the resources to fight back against allegations made about
them. The list includes the "home alone" mother, the wife of a
convicted murderer (Sonia Sutcliffe) and the man mistaken for
being a paedophile and beaten up accordingly. But all these life
stories take place outside law's domain. The law is of precious
little help to those private individuals who have indeed been
libelled in the press but lack the resources to pay for George
Carmen QC or Charles Gray QC et al.
Libel law is a strange creature. It seeks to strike the balance
between the need to protect reputation and the need to allow freedom
of speech. In striking that balance it succeeds in protecting
the reputations of the elite, those who least need that protection
as they invariably have the resources and contacts to refute the
defamatory statements made about them. Furthermore in protecting
the reputations of those individuals libel law effectively silences
and stifles free discussion on many issues of the gravest public
Given the failure of libel law to strike that balance it is worth
considering outright abolition and the replacement of libel law
with something else. Others have argued for a reform to libel
law to address its most harsh aspects. For an extension of the
public interest defence, for the reversal of the burden of proof
etc. All this would no doubt make libel law less unpalatable in
operation. But none of these changes would alter its exclusivity
or make it more accessible to the public at large. I now want
to go on and outline one possible alternative: the right of reply.
The Right of Reply
My starting premise is that those elite few who use the law of
libel to "protect" their reputations do not actually need the
protection that is offered. They need to get their point of view
heard but they are by definition individuals who have no problem
in doing precisely that. Abolishing the law of libel as far as
they are concerned can bring no end of benefits for society at
large. Free discussion would be the immediate result. In addition
those whose reputations were defamed would have to defend themselves
in the fairest court of all, the court of public opinion.
My second premise is that many private individuals whose reputations
are defamed presently have no real legal protection. This category
may include individuals who are not without influence or wealth
but whose views are considered to be so unacceptable that they
lack the ability to respond to defamatory statements made about
To remedy this situation I would bring in a Right of Reply scheme.
This would give private individuals who have been defamed the
right to reply in the same newspaper in which they were defamed.
The scheme would only apply to individuals who had no capacity
to get their own point of view across.
A good, if controversial, example would be the former Edinburgh
university lecturer Chris Brand. Brand is a public figure. He
has a public profile and is a reference point in public discussions.
However his views on race and homosexuality are deemed to be so
unacceptable that he is granted no opportunity to respond to his
critics. I am therefore defining a private individual as someone
who does not have the capacity to get their own points of view
Furthermore the scheme would only apply to those defamatory statements
which were strictly personal in nature. In this way there will
be no restictions placed on editorial freedom when it comes to
matters of public policy.
For example, the person who is falsely accused of being a paedophile
should have his or her right to reply to those accusations. Guaranteeing
that right of reply would be more satisfactory than the present
situation: either individuals have no effective means of redress
or, if ... they can afford the costs of bringing a libel action
end up with their reputations "vindicated" many years after the
events in question.
The purpose of this scheme would be to promote a climate of free
and honest public debate according to the notion that more speech
has to be better than restrained silence.
Clearly such a scheme would need to be much more thoroughly thought
out and argued through before becoming a realistic alternative.
I have sought here only to raise it for the purpose of discussion
given the inequitable set up that currently exists. There would
of course be many problems, for example, in deciding who is a
public/private person, what is a personal attack etc. However
these are all problems which are worth considering and merit further
attention. They are not beyond resolution if the will is there
to create an alternative.
There exists now, in the light of the McLibel trial and other
recent libel fiascos, a window of opportunity. An opportunity
to do away with laws that no longer serve any useful social purpose,
other than protecting the reputations of those who should be subjected
to the most rigorous public criticism. Failure to consider all
the alternatives at this time and the possibility of going the
whole way would be the biggest shame of all.
Freedom and Law
1. The wrong balance
2. The burden of proof
3. Negligent Defamation
4. Abolishing Libel Law?