the legal battle: Libel law

Libel Law: time for change

A discussion paper published by the Libel Law Reform Project and Freedom and Law (FLAW)
November 1997


During 1997 British libel laws have been put under scrutiny. A number of high profile actions such as the McLibel and Jonathan Aitken cases have caused some to call for libel law reform. Many journalists and lawyers agree that the laws are too harsh on the media and in too many instances act to chill free speech. But while many claim that it is time for the law to change, few commentators can agree on what changes are needed.

The following papers were written in the wake of this discussion about libel law reform. They attempt to practically deal with possible reforms and in so doing they raise a number of positions and schemas which are argued for (and against). Not all the authors agree on what measures are needed but they share a common belief that the most effective way of dealing with defamation is through more speech and not restrained silence.

This set of papers is designed to stimulate further discussion rather than being an exhuastive programmatic document in its own right. The papers have been published in this draft form in order to invite comment and criticism. The first paper examines what is wrong with the law as it currently stands. The subsequent papers put forward different remedies. Readers' comments and criticisms will be discussed at an open meeting of the Libel Law Reform Project in January. After that meeting we will publish a full volume of discussion papers. Any reader wishing to contribute to the discussion or to our future publication should contact the project co-ordinator Daniel Lloyd of Freedom and Law.

Daniel Lloyd
The Libel Law Reform Project
Freedom and Law (FLAW)
c/o Worldwrite
14 Theobalds Road
London WC1X 8PF

The Papers

1. The wrong balance
Helen Searls

Helen Searls is the legal co-ordinator of Informinc, the publisher of LM magazine. She has direct experience of British libel law as she is co-ordinating the defence of LM magazine in its libel suit with ITN. Her article 'The Wrong Balance' introduces the discussion papers with an analysis of the balance to be struck between freedom of speech and reputation. She claims that the balance in Britain is wrong and argues that freedom of speech is dangerously silenced by the law.

2. The burden of proof
Susannah Downing

Susannah Downing, a lawyer, puts the case for reversing the burden of proof between the plaintiff and the defendant. In 'The Burden of Proof' Susannah argues that it would be fairer for the plaintiff to have to prove that the defamatory statement complained of is untrue. This is in contrast to the present law, where the defendant has to prove that the statement is true. This reform would, at a stroke, reduce the number of libel cases brought in London.

3. Negligent Defamation
Jon Holbrook

Jon Holbrook, a barrister, argues for a highly original reform in 'Negligent Defamation'. He calls for the principles of negligence to be imported into libel law. This would permit journalists and others to make honest and reasonable mistakes without being sued. Under the current law any mistake, regardless of the care taken or research done, can be libellous.

4. Abolishing Libel Law?
Daniel Lloyd

Daniel Lloyd, a public law tutor at UCL, in 'Abolishing Libel Law?' argues for the total abolition of libel law and its replacement with a scheme of Right to Reply. Even if the reforms suggested did reach the statute books, the elitist and exclusive operation of libel law would remain intact.