the legal battle: Libel law

Abolishing Libel Law?

Daniel Lloyd

Libel Law: time for change
The papers

1. The wrong balance
Helen Searls

2. The burden of proof
Susannah Downing

3. Negligent Defamation
Jon Holbrook

>4. Abolishing Libel Law?
Daniel Lloyd

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 Britain.

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 importance.

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 them.

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 heard.

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.

Daniel Lloyd
Freedom and Law

The papers

1. The wrong balance
Helen Searls

2. The burden of proof
Susannah Downing

3. Negligent Defamation
Jon Holbrook

4. Abolishing Libel Law?
Daniel Lloyd

Your comments