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    Friday, 5 February 2010

    Lord Hoffman beats-up on the libel reform campaign

    In a speech made earlier this week, Lord Hoffman questioned at length and in persuasive depth a number of the bases of the current libel reform campaign. In doing so he echoed much of the critique offered in the report published recently by Alastair Mullis and myself. Or rather, he was somewhat more brutal.

    I haven't yet been able to find the speech online, although for LSE students a transcript is available on the LL295, LL4H2 and LL407 Moodle pages (others are welcome to contact me for a copy). Interestingly, you will find no coverage of the speech - or the Mullis-Scott report - in the mainstream newspapers who have been campaigning for reform, or on the pages of Index on Censorship, English PEN or the Libel Reform Campaign pages. So what has happened to the much-vaunted commitment to openness and democratic debate?

    The speech itself deconstructed the 'libel tourism' complaint, and in particular exposed the Ehrenfeld bandwagon. Ultimately, Lord Hoffman concluded that the complaint is essentially American in nature, and is borne of the over-weened value accorded - uniquely - to freedom of speech relative to other social values in that jurisdiction. He quoted a Canadian judge to emphasise the cost of the American approach: "an individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy". He was corruscating on the trend for US states to introduce libel blocking statutes. He was bemused by elements of the Index on Censorship / English PEN report. Notably, he drew a comparison between the sums that newspapers are willing to pay their sources for salacious stories - note the purported 250k pound price tag on Vanessa Perroncel's side of the JT affair - with the proposed cap on libel damages of a mere 10k. Its an important rejoinder to the one-sided media campaign on reform, and demands to be read by the assorted lovies who have added their undiscriminating ballast to that movement.

    That all said, for me, Lord Hoffman went a bit too far on the libel tourism issue. As highlighted in the Index / PEN report, there certainly is a chilling effect of English libel law on speech elsewhere - they cite noted instances from Eastern Europe for example - that does need to be addressed. Like them, we would be particularly concerned where this chill falls upon relatively impecunious defendants (human rights NGOs; local media in developing countries etc). It is uncertain quite how significant this problem is in fact (that is, once one moves past the easy rhetoric and bombast). Lord Hoffman asked for more data on this point.

    In our report, Alastair Mullis and I suggested that addressing the costs issue would go some way to alleviating the problem, and we note that the Government is seized of this issue. We doubt that in the more worrying cases that only addressing costs would quell the chilling effect completely. Hence, we suggested that it may be reasonable to introduce the opportunity for defendants to counter-sue in cases where the motivation of the claimant was manifestly just to silence critical comment.


    Andrew Scott said...

    Since the above post, John Kampfner - the Chief Executive of Index on Censorship - has noted the Hoffman speech and the Mullis-Scott paper in an opinion in the Independent on Sunday.

    andbwell said...

    You'll find a copy of Lord Hoffman's speech attached to this blog posting: