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    Thursday, 11 November 2010

    Reframing Libel: taking (all) rights seriously and where it leads

    Last week at the Reframing Libel symposium at City University, Alastair Mullis and I offered a first airing of a paper we've been developing over recent weeks. A working paper version of this paper will be published shortly, and thereafter we hope to publish a more developed, academic version of the idea.

    For the meantime, the executive summary of the working paper (reproduced below) gives a sense of our argument and proposals:

    1. In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law. We offer a fresh analysis of the purposes of the law which culminates in innovative proposals regarding its substance and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation.

    2. The conclusions that we reach lead us to reject the overall approach taken in the Defamation Bill sponsored by Lord Lester. Though we agree with a number of his proposals and would support their adoption, we fear that overall the Bill will do little to reduce the existing complexity and expense of the law. Indeed, it may exacerbate both. Most fundamentally, we consider that the Bill addresses the problems of libel law through the prism of an over-weaned emphasis on freedom of expression, and therefore fails properly to triangulate the rights and interests of claimants, defendants and the wider public.

    3. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice, simplify processes and reduce costs for the vast majority of libel actions. In essence, our proposal involves the recommendation of a two-track libel regime.

    4. The first track in this new regime would comprise a much-simplified process. This could be administered by the High Court, but the function might instead be allocated to the County Court, the Tribunals Service, or an appropriately designed (self-)regulator. The overwhelming majority of cases would be addressed by this route. Damages would only be available for psychological harms protected under Article 8 ECHR, but would be capped at £10,000. Vindication would be obtained by an appropriate – and mandated - discursive remedy (correction; apology; right of reply; declaration of falsity). The remedy in damages for intangible harm to reputation would be withdrawn. Special damages for provable loss would be unavailable in this track. Determination of the meaning of imputations would be much simplified by adopting the meaning(s) inferred by the claimant subject to a test of capability / reasonableness / significance. Truth and fair comment would remain as the primary defences, while in appropriate cases the defendant would also be able to rely on absolute, traditional or statutory qualified privilege. The rationale underpinning the Reynolds public interest defence in track one would disappear. The approaches to substantive questions suggested here would very significantly reduce the complexity and cost associated with particular cases. Hence, it would reduce the chilling effect of the law on publication, and markedly enhance access to justice for defendants and claimants.

    5. The second track would be limited to the most serious and/or most damaging libels. Cases would proceed down this track only where special damages for provable loss are claimed, or where psychological harms protected under Article 8 are severe so that the track one procedure would be manifestly inappropriate to deal with the case. Track two cases would continue to be heard in the High Court. As in track one, the remedy in damages for intangible harm to reputation would be unavailable, and vindication would be obtained by a discursive remedy. Where proven by the claimant, special damages would be recoverable. Uncapped damages would be available for Article 8 psychological harm (although a de facto cap would remain by pegging to damages recoverable for physical injury). On account of the power of the court to award very substantial damages and the likelihood of significantly increased costs, the potential pre-publication chilling effect requires the availability of a Reynolds-style public interest defence in track two. Where the defendant relies on Reynolds, however, proper recognition of the underlying principles of freedom of expression and the importance of reputation require that the defendant provide either a right of reply or a notice of correction with due prominence. Truth and/or fair comment would remain available, and in appropriate cases the defendant would be able to rely on absolute, traditional and / or statutory qualified privilege.

    6. We envisage that adoption of the above scheme would also provide significant incentives for complaints to be settled quickly between the parties without recourse to the formal legal regime. We recognise that the availability of track two may continue to facilitate the abusive threat of legal action, but suggest that claims to have suffered severe Article 8 harm or particular losses could be easily identified and quickly dismissed by the court if unsubstantiated. We also recognise that the releasing of media defendants in most cases from the risk of very significant legal costs and damages may encourage ‘game-playing’ by some organisations. In our view, the blunt constraint currently afforded by high costs are adequately substituted by obliged dedication of space to accommodate discursive remedies and the loss of credibility that would go along with such repeated emphasis on poor quality journalism. We do not shy from the fact that these remedies themselves involve interference with defendants’ Article 10 rights ‘not to speak’. We also note that discursive remedies afforded quickly are often the primary outcome that claimants seek.


    Judith said...

    I have posted an answer to this proposal on the Inforrm site. This system of separate trials on meaning was tried in NSW between 1995 - 2005 and after a series of perverse jury verdicts, appeals and inordinate expense (especially for media lawyers) was abandoned. The media reported their legal costs doubled.

    In addition, just how many County Court judges are going to be able to put aside their busy workload and, in a court with limited resources, hear trials on meaning? In practical terms, the costs end up being the same.

    There would not be a problem if very simple libels were referred to the County Court by the High Court, but when is a libel simple? Was Adam v Ward simple? It is very hard to tell what the issues are just from the statement of claim, or even the defence.

    The number one problem for defamation law is the cost. Procedures involving multiple courts and multiple hearings multiply the cost, particularly if the case comes before a non-specialist judge (and I remind you of Lord Steyn's May 2010 paper commenting on injunctions granted by judges without specialist knowledge who failed to apply s 8 principles).

    Please rethink this cumbersome, expensive and potentially unfair proposal!

    Andrew Scott said...

    This response too is reprinted from the Inforrm blog piece:

    While the take here on the NSW experience is fair, it has little or no relevance to what myself and Alastair Mullis have proposed. We do not envisage a separate trial for the determination of meaning followed by the trial proper. We do not pretend that there is always a single meaning to be inferred from a given publication. Rather, we ask what is the nature of the harm that is caused by libels and how can be best design a libel regime to accommodate these purposes while balancing all pertinent individual and social interests.

    The first type of harm – which can be more or less significant depending on the facts at hand – is the psychological impact caused in the mind of the claimant. This is currently addressed under the rhetoric of damages for injury to feelings, hassle and upset. It is basic knowledge in social psychology that one’s sense of self-worth is determined in part by what one perceives to be the regard in which others hold us (the ‘looking glass self’). Libels can cause us to think that others will think less of us, so in principle and assuming a sufficient level of seriousness, libel law should provide an appropriate remedy. For this we think damages are appropriate, although we imagine that in 99 of 100 cases the measure will be low (< £10k). The next stage in our thinking is that if the damage is caused in the mind of the claimant, then it is the claimant's inferred meaning that should provide the basis for the subsequent consideration, subject to a test of capability / reasonableness / significance. Determination of meaning doesn't need a separate trial or process. Indeed, it becomes very straightforward indeed. The question is not 'what is the meaning', but rather only 'is the given meaning a capable or reasonable one'.

    The next type of harm is intangible loss (the unquantifiable amount of harm presumed to have been caused to reputation). Here we propose to withdraw the remedy in damages for reasons elaborated in our paper.

    ... see further comment

    Andrew Scott said...

    ... [cont'd]

    Damages are also currently awarded for vindication. We think this is not the best way to achieve restoration of reputation and prefer mandated discursive remedies (corrections / apologies / rights of reply, perhaps declarations of falsity). Indeed, we think that relying on vindication damages distracts attention away from the need to put the record straight. Here a question for us was whether the decision-maker should continue to rely on the claimant's meaning. We concluded that (a) the single meaning rule is counter-factual, and (b) given that (or if) the complained of meaning(s) will have been ruled reasonable then some of the audience can be presumed to have inferred those meanings. if this is the case, and if the expected remedy is a discursive one only, then what reason could there be for the decision-maker not to oblige an apology for each unprovable but damaging meaning.

    The final type of harm is special damage / provable loss. We propose that damages for such loss should be recoverable only in the High Court, track-two forum. Hence, if you want to take a case down this route you would first have to make a good argument that special damage or severe Art 8 / psychological harm had been caused (eg Lillie and Reed v Newcastle City Council). That won't be easy – 1 out 100 cases?

    We appreciate that there may well be many grounds on which our proposals can be challenged / criticised. We'd hope that such criticism will be based on a full and accurate reading of our proposal. Our working paper is to be published by City University, and we will be circulating to many people who have kindly agreed to offer us comment. We would also be very keen to receive as much feedback from others as possible, and hope ourselves to identify shortcomings in our thinking. Ultimately, contrary to the above comment, we think that our proposals would significantly reduce complexity and hence costs in the libel regime, while still securing a proper balance between reputation and free speech while enhancing access to justice for all parties.

    Paul Tweed said...

    Now that the Ministry of Justice have announced a timetable for the forthcoming review of UK Libel legislation, in response to unprecedented pressure from the media and following what has been one of the most successful US lobbying campaigns since that initiated by the tobacco industry some years ago, it will be interesting to see how the Government reacts to this totally unjustified clamour for reform.
    I say this particularly bearing in mind the embarrassment caused to the American lobbyists and legislators as a result of the recently published statistics establishing beyond any doubt that, contrary to press speculation on both sides of the Atlantic, the number of international libel claims brought before the UK Courts has been miniscule, thereby further exposing the totally disproportionate response to what is, to all intents and purposes, a “non issue”.
    Of even more significance will be the reaction of our Courts to requests for enforcement of US judgments against UK citizens and companies in cases involving grossly excessive punitive damages and attorneys’ fees, the latter often amounting to almost fifty percent of the damages awarded. To reverse the argument put forward by the lobbyists in the US Libel Tourism debate, such judgments would never be countenanced by a UK Court and the scale of such awards are offensive to all basic principles of British law.
    If we are to believe everything we read in the press and the extensive coverage of the so called libel tourism problem, then you would think that the UK Courts were being besieged by multiple claims from numerous international litigants seeking to obtain justice by the back door, which is of course nonsense as the facts and figures have now established. The truth of the matter is that the media have seized upon an opportunity to snuff out one of the last opportunities for the general public to seek redress from an increasingly reckless press, who already have the financial clout to see off any unfortunate individual having the temerity to take them on, unless that individual is a man of substantial means.
    Unfortunately the powerful lobbying platform enjoyed by the press is not available to the supporters of our Defamation laws, in what has been, at best, a one sided debate in the media.
    The irony is that the UK broadsheets are generally regarded to be among the most credible and respected in the world, which is in no small measure due to our fair and balanced libel laws!
    Paul Tweed
    Johnsons Law Firm
    Senior Partner
    Belfast | Dublin | London

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