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)
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.
The Libel Law Reform Project
Freedom and Law (FLAW)
14 Theobalds Road
London WC1X 8PF
1. The wrong balance
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, 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, 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, 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.