Lord Steyn on the need for libel reform

This evening Lord Steyn delivered the Annual Boydell Lecture at the Inner Temple Hall. He took as his theme, 'Defamation and Privacy: momentum for substantive and procedural change?' and offered a somewhat distinct perspective to that propounded by Lord Hoffmann earlier this year. Here are some extracts from the transcript (which (a) hasn't been checked against delivery, and (b) can be obtained from me if it isn't available elsewhere):

It is (I believe) a fact that very often British newspapers, when sued in libel, give up and settle when one would not expect them to do so... Libel law is tilted against the media.

Some libel specialists question that libel tourism is a significant problem. In my respectful view the concerns of the Lord Chief Justice [given in a speech to the Society of Editors on 16 November 2009] are well-founded. A combination of the multiple publication rule, and the even a small number of internet readers of the United Kingdom, has created the risk of a cause of action here, and opened the door to libel tourism.

Re Reynolds: The idea was that over time a valuable corpus of case law would be built up. But the defence failed. Optimism about the practical utility of Reynolds privilege unfortunately proved misplaced. The great majority of Reynolds defences failed at first instance... As a matter of precedent Jameel did not amount to the much needed critical re-examination of Reynolds. Unfortunately as matters stand, the Reynolds privilege will continue to complicate the task of journalists and editors who wish to explore matters of public interest and it will continue to erode freedom of expression

Yet, re the 2009 Canadian Supreme Court judgments of Grant v Torstar and Quan v Cusson which many have seen as vindications of the Reynolds approach: luminous judgments... which in effect change the existing rules... The Supreme Court recognized the importance of a robust media in protecting freedom of expression

Re the recent Singh case: Fortunately there is now, among the senior judiciary, in other respects considerable momentum for substantive improvement of libel law. An enormous advance is the case of Dr Singh It is not for the courts in cases involving scientific controversy to disentangle fact from opinion. To introduce the chilling impact of litigation in this area is absurd

Commending the 2008 book Defamation and Freedom of Speech by Dario Milo: The author puts forward a number of important arguments which require serious consideration... he challenges the common law presumption that defamatory statements must be presumed to be false... makes a strong case that a plaintiff should have to establish a lack of care for public speech defamation... argues that the victim of a slur on matters of public concern must prove that he suffered actual damage to his reputation... A practical point to which I want to direct attention in this book is Milo‘s observations about the appropriate fault element for secondary distributors such as internet providers and booksellers. He argues powerfully that the standard should be gross negligence... these ideas ought to be considered in an open minded way in order to render our defamation law fit for purposes... I see no reason why Milo‘s analysis cannot be adopted

I do not think the developments I have discussed can be left to the organic development of the law. Legislation will be necessary.

On practical aspects of libel and privacy law: My understanding is that a high level inquiry will deal with this subject. I hope the result will be that super injunctions will never, or virtually never, be granted... [and] it seems to me important to examine also the question whether in the area of libel the use of specialist judges is necessary... One accepts that in certain fields there is an advantage in using specialist judges... [but] why are specialist judges required in libel cases? The types of issues involved in libel case can quite appropriately and conveniently be tried by any Queen‘s Bench judges. Nothing in recent experience of libel cases demonstrates a clear advantage in using specialist judges.