The draft bill has many welcome clauses, but doesn't limit the right of companies to sue that many campaigners had hoped for
"My speaking note says I should answer all questions by saying 'I agree with Ken'," joked the Liberal Democrat justice minister Lord McNally, as he and Ken Clarke launched the government's draft defamation bill on Tuesday.
And perhaps that's the most encouraging thing about the Conservative justice secretary's libel reforms: they are supported not only by the coalition partners but also by Labour. So there must be every chance that the consultation, due to end in June, will lead to legislation.
But it did not take long for tensions to emerge between the two ministers. Libel reformers have long been concerned by the "inequality of arms" that exists when a big corporation sues individuals, as happened during the 1990s when McDonald's took on two environmentalists.
Lord McNally recalled that limiting companies' rights to sue had been Liberal Democrat policy before the general election. But "the first round of consultations" ? presumably with potential claimants ? "did not support that view".
So the draft bill does not contain the restrictions on local authorities, corporates and other organisations that campaigners had argued for. McNally said the issue was still open for consultation, but justice secretary Ken Clarke seemed to think that companies should be able to protect their reputations in pretty much the same way as individuals.
That will become more difficult if the draft bill becomes law. First, a statement will not be regarded as defamatory unless its publication has caused, or is likely to cause, substantial harm to the claimant's reputation.
At present, harm is presumed; there is no need to prove it. This strikes me as an excellent reform and one that will reduce the scope for trivial and unfounded cases.
Next, the draft bill introduces a new defence protecting a statement on a matter of public interest, provided that the defendant acted responsibly in publishing it. Although the bill does not seek to define "public interest", it does provide guidance on responsible publication. This provides greater clarity while reflecting existing judge-made law.
Clause 3 of the bill makes it a defence for the defendant to show that the statement complained of is "substantially true". This seems to be little more than the existing defence of justification under a new name. It will still be necessary for the defendant to prove that what he said was true if he is to rely on this defence; the claimant will not have to show that a statement was false.
Next, the bill creates a defence of honest opinion on a matter of public interest. Again, this reflects and clarifies the current defence of fair comment.
Clause 5 is a welcome extension to the law of privilege, protecting media coverage of courts abroad as well as some company reports and scientific conferences.
In clause 6, the bill updates the law from the Duke of Brunswick's case in 1849 to the internet age by providing that a statement is not republished every time it is downloaded. This means that claimants will not be able to sue on a statement that was first published more than a year earlier.
Next, the bill deals with libel tourism, which covers cases brought against people who are not domiciled in the UK or Europe. Our courts will not have jurisdiction to hear such cases unless they are satisfied ? in the words of the bill ? that "England and Wales is clearly the most appropriate place in which to bring an action". What does "clearly" mean in this context? Either England and Wales is the most appropriate place or it is not. How can the courts be satisfied that it might possibly be the most appropriate place? Clarke and McNally had no answer to this point when I raised it with them; they did not have their officials sitting with them. The government's white paper indicates the sort of libel tourists that the bill is trying to exclude, but these concerns are not reflected in the drafting.
The final substantive clause removes the presumption in favour of trial by jury. Despite public support for juries in criminal trials, there seems little enthusiasm for juries in civil cases. This seems wise: cases will be quicker, cheaper and fairer. They will, perhaps, become rather less entertaining for those of us on the press benches.
But that is a small price to pay if it means we are less likely to find ourselves at the front of court 13, in the uncomfortable seats normally taken by defendants.
Joshua Rozenberg is a freelance legal writer, commentator and broadcaster
Source: http://www.guardian.co.uk/law/2011/mar/15/libel-reforms-step-campaigners-satisfied
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