The reform of British libel law has been something of a will o' the wisp in recent years. Every few months it seems, the issue jumps to the fore, either through international pressure, a judicial decision, or a domestic campaign. But just as quickly, it disappears back into the legal morass.
But finally, it looks like Britain's legal heavy hitters are getting involved. Last week, British Justice Minister Jack Straw rolled out the Labour government's outline for a long-needed libel reform bill. The Independent reports:
Mr Straw said ministers were now "convinced" that reform of the law in England and Wales was necessary, amid concerns that existing legislation was having a "chilling effect" on freedom of expression. . . .
"On the basis of all the views that have been submitted, the Government is convinced that reform of the law on libel is needed, and that action should be taken on a number of aspects and procedures," Mr Straw said.
"The Government believes that the programme of work which it intends to take forward represents an effective and practical way to ensure that our libel laws achieve a fair and just balance which enables people to protect their reputations against defamatory allegations without having a harmful effect on freedom of expression."
This is no small thing. Previous pushes for libel reform have been largely by soft powers—non-governmental bodies and lower court judges who have tried to distinguish the cases that earned London its "libel capital of the world" title. But Mr. Straw's statement indicates that Labour is finally throwing its weight behind libel reform, and a considerable weight it is too. As British legal website The Lawyer writes, "the deeper problems [of libel law] are really such that primary legislation is necessary." And primary legislation is finally possible with Labour's commitment.
Straw outlines the reform plans in more detail in an article he wrote for The Guardian:
The main areas we are looking at are threefold. Firstly, we'll be introducing a single publication rule, under which a defamation claim will have to be brought within one year from the date of the original publication. The interests of people who are defamed will be protected by giving the court the power to extend this period where necessary.
This element will specifically tackle the problem of internet publishing, and the way the law currently allows defendants to be taken to court every time allegedly libellous content is accessed online. This causes great uncertainty, as publishers are effectively subject to open-ended liability. Clearly, our current laws are not fit to handle the realities of the 21st century media landscape and internet use—this change will address that.
Secondly, the Bill will include provisions to prevent the growth of so-called "libel tourism", which some believe has been increasing rapidly in recent years. I'm asking the Civil Procedure Rule to consider tightening the rules where the court's permission is required to serve defamation cases outside England and Wales. This will help head off inappropriate claims at the earliest stage and stop them from reaching court.
Finally—and perhaps most importantly for the media—we'll be looking at whether to introduce a statutory defence to protect publications that are in the public interest. A statutory public interest test which is clearly and simply expressed could help ensure that the work done by journalists, scientists and NGOs to investigate and inform the public can continue—while also preserving the right we all have to protect our reputations.
This is all excellent news. A statutory confinement on "publishing" is welcome—the idea that a website is "published" every time it's downloaded is as ludicrous as saying a book is "published" every time it's opened. And putting an end to libel tourism is huge—the British libel laws have produced some outrageous results, highlighted by the case of Rachel Ehrenfeld, which spurred legislation from New York, California, Illinois, and Florida, as well as efforts on the federal level, to stop the enforcement of such rulings in the US.
And indeed, the "public interest" defense is sorely needed, though the concept needs further fleshing out. Based on Straw's description, it doesn't seem quite the powerhouse that the First Amendment is, and it may be similar to the common law public interest defense found in the law of many U.S. states. One wonders who decides just what's in the "public interest"—is it categorical, based on the type of publisher? Straw's statement about "a statutory defence to protect publications that are in the public interest" could be read that way. Hopefully it's less about "publication" as the organization than as the article—surely, a blog post or a forum comment about an issue of the day is as much "in the public interest" as a newspaper article or NGO report. Still, at first blush, Straw's proposal holds promise. Hopefully, the parliamentarians can fulfill that promise.
Naturally, the various proponents of libel reform in Britain are pretty pleased. The Times of London (a paper not known for its support of Labour) wrote in an editorial that "the Justice Secretary’s proposed reforms are right," and the Libel Reform Campaign, a British NGO that espouses, well, libel reform, "welcomed" Straw's commitment. And while The Guardian did not weigh in with an editorial on the subject, that may just be because its support is so obvious that it needs no mention.
Of course, Labour support is all well and good, but the soonest such a reform bill could be considered is in the next parliament, which will be elected this spring. The knowledgeable reader is likely aware that the current Labour government may well be ousted in elections, in which case it wouldn't matter much what Straw thinks. So what says his counterpart in the Tories, who are favored to take over the government?
Good news! The Conservative shadow minister, Henry Bellingham, has also come out in support of libel reform, reports journalism.co.uk. Citing word from the Libel Reform campaign, journalism.co.uk writes that Mr. Bellingham would make libel reform a priority. The Conservatives had been the last remaining major party that had yet to support libel reform, until Bellingham's commitment. Not exactly as encouraging a commitment as Straw's, but they've spoken out in favor of libel reform now, which they hadn't before.
So it's finally looking like a matter of "when," not "if," libel reform comes to pass in Britain. Given the embarrassment that is British libel law, hopefully that "when" is sooner than later.
(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)