On 9 October 60 international non-governmental free speech and human rights organisations, including Article 19, Index on Censorship and English PEN, sent an open letter to the UK‘s Prime Minister, Deputy Prime Minister and the Leader of the Opposition.

Politicians must keep their promises
The organisations welcome the UK government’s attempt to revise English libel law, but remain concerned that the legislation fails to deliver the reform that the government promised in its election manifestos and in the May 2010 coalition agreement.

“English libel law has been shown to have a chilling effect on free speech around the world. We believe that the Defamation Bill will address this in part by tackling libel tourism, where foreign claimants have brought libel actions to the English courts against defendants who are neither British nor resident in this country. However, the Bill as it stands would not have prevented any of the libel cases that we have seen over the last few years against journalists, scientists, doctors and activists who have spoken out on issues that are in the public interest”, said the letter.

International NGOs called on the government to include a strong public interest defence in the Defamation Bill to allow free and open debate in the UK and abroad. According to them, restrictions must be also placed on corporations to limit their ability to use libel law to bully and silence their critics.

The organisations believe it is of the utmost importance that the government delivers reform that protects freedom of speech both in the UK and abroad.

Public interest should be defended
Index on Censorship pays attention to the fact that without a public interest defence in the Bill, this legislation will fall far short of initial expectations. Substantive amendments should be made to the bill to strike out actions by corporations, to force early strike out of trivial cases and to improve on regulations covering the internet.

Clause 4 of the Bill as it stands is merely the codification of a version of the existing Reynolds “responsible journalism” defence — it is not a public interest defence. In the Reynolds judgement (the 1999 House of Lords judgment in Reynolds vs Times Newspapers Ltd), Lord Nicholls suggested 10 criteria that could be used to measure whether a publication had been responsible.

Although these criteria were meant to be illustrative they have come to be seen as a list of requirements to be satisfied. While a large newspaper group may be able to satisfy these criteria (albeit at huge expense), for bloggers, scientists or NGOs this is simply not practical, according to Index on Censorship.

The organisation says that the entirety of the existing Clause 4 should be deleted to keep the existing common law position which is stronger than the position in the Bill; or, more suitably (to create legal certainty) to amend the existing Clause 4. This amendment would at least give large media groups a reliable “responsible journalism” defence.

However, a “responsible journalism” defence will not protect the bloggers, scientists and NGOs who have driven the Libel Reform Campaign. This public interest defence, to be inserted in the Bill as a new clause, would protect genuine public interest statements made in good faith.

Defamation law should not be used to sue individuals
The clause would require that statements that meet a public interest threshold, which cannot be shown to be substantially true (such as claims around scientific research), are promptly clarified or corrected with adequate prominence.

Those publications that do not drag their heels in publishing a prominent correction or clarification would be protected from having to defend a libel action. This gives bloggers, NGOs and scientists latitude to publish in a responsible manner on matters of a public interest, says Index on Censorship.

The Libel Reform Campaign is lobbying parliamentarians to adopt a new clause on corporations, preventing them from using the law of defamation to sue individuals and requiring them instead use alternative laws such as malicious falsehood (which has a higher threshold of harm), the Business Protection from Misleading Marketing Regulations 2008 (BPRs), or a freestanding remedy of obtaining a declaration of falsity.

A tool to strike out trivial cases needed
In recent years, the courts have allowed trivial or vexatious cases to proceed at huge expense to both the claimant and the defendant, even where there has been little chance of the claimant winning their case.

The Ministry of Justice believes that “existing procedures will suffice” under rule 3.4 of the civil procedure rules to strike out such cases at an early stage. But this has clearly not been borne out in legal practice. If the government’s intention is to allow for early strike out, then there must be an amendment telling judges to strike out claims that fail to surmount the “serious” (harm and extent of publication) hurdle.

Internet regulations
The Libel Reform Campaign is also urging the government to publish the wider regulations on internet liability immediately. The government is currently intending to amend into the bill through a statutory instrument, giving Parliament a far more limited role in scrutinising these important regulations.

Index on Censorship also lists five ludicrous cases which demonstrate how libel law can stifle debate, curtail criticism and even endanger lives. You can find them here.

Related articles:

Campaign’s success in UK: Libel reform announced

English libel law – tool to silence journalists from other countries?

Campaign success: Deutsche Bank and BNP Paribas stop working for Lukashenko

UN: online expression must remain free of censorship

UN HRC adopted document on freedom of expression