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    Monday, 31 May 2010

    'Twelve good men and true' sitting on a wall: juries in libel

    The issue of whether libel trials require juries has become a key focus for debate in the context of reform.  In his final report on the costs of civil litigation, Lord Justice Jackson mooted the possibility of this change. In our paper on reform options, Alastair Mullis and I explicitly cited this possibility as a potentially desirable 'cost-saving process change'. In its report, the Libel Reform Working Group found that views were mixed on the desirability of removing juries altogether, but suggested that the determination of meaning might somehow be expedited (at [91]-[100]).

    On the flip-side, there are obviously risks in allotting the role regarding the determination of meaning to a sole judge. As has been illustrated of late, parties will not always get the meanings they want. Moreover, very few cases ever reach the full trial and so the savings in cost will usually be negligible (although the perception that costs will be lower might see more cases reach the trial stage). For some, there is also a point of principle at stake: the 'constitutional' right to have a jury determine meaning.

    In this context, Inforrm has a very interesting blogpost this morning regarding an as yet unreported preliminary ruling in Fiddes v Channel Four. It seems Mr Justice Tugendhat may have preempted the reform debate on grounds, inter alia, of the importance of freedom of expression.

    Sunday, 30 May 2010

    The costs of confidence: Irish Times applies to Strasbourg

    The Irish Times has applied to the European Court of Human Rights with regard to the adverse costs order that it sustained following the decision of the Irish Supreme Court in Keena.

    Update: see this from Eoin at

    Friday, 28 May 2010

    Who's got the one-track mind? the libel claimant's story

    In years to come - if it isn't happening already - political science students will be studying the libel reform campaign, its personalities, methods and outcomes from divers theoretical perspectives. For now, its all still a whirl. Its to be hoped that what comes out of the vortex will be fair, procedurally sound, less costly all round, and sustainable. The singular success of the libel reform movement has been to focus attention and to ensure that many heads address the complex issues. Its singular failure would come to pass if we trip into rushed and piecemeal reform. We've almost made that mistake once (1,2). Beware the (online) free speech nympholeptics!

    Today there was a small but important event; another reminder to everyone that this is not a battle between the good and the evil, the honorable and the avaricious, liberals and 'illiberals' (the last was when Carter-Ruck won a libel case... for a scientist... on a CFA). A claimant's story got told - and told fairly and well.

    Read it for yourself here, and when you're done try this for a further insight (this time into the experience of being at the eye of a media storm).

    ... and hat's off to the Guardian!

    Thursday, 27 May 2010

    Brave new world? Lord Lester's defamation bill

    Lord Lester's much-trailed (1, 2) Defamation Bill has been published today having received its first reading in the House of Lords yesterday (no date yet for a 2nd reading). It is available here. There is - already! - a searching commentary on the Inforrm blog. In light of the Coalition's commitment to a review of the law, the Bill should provide a useful vehicle for further political consideration.

    Wednesday, 26 May 2010

    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.

    Thursday, 20 May 2010

    Stop whinging, get filming? abortion services ads on tv

    It has been announced that next Monday, Channel 4 is to carry an advertisement for abortion services paid for by Marie Stopes International (although not in N.Ireland). The advert will then be screened a number of further times throughout June. The advert evades the general restriction on such advertising imposed by the Broadcast Committee of Advertising Practice by dint of the non-profit status of its sponsor.

    Anti-abortion groups are said to be outraged and plan to challenge the legality of the decision (1,2,3).

    An alternative for the ProLife Alliance, the Society for the Protection of the Unborn Child, or others might be to produce their own adverts and present them for airing to the broadcasters.

    Any such advertisements would likely be faced with swift rejection on the basis of the ban on the broadcast of 'political' advertising that is now reflected in ss.319 and 321 of the Communications Act. The groups would then be free, however, to test a possible 'loop-hole' in the legislative restrictions previously identified by Lord Scott.

    Such an approach has been tried - and failed - before of course (most recently by the Animal Defenders International). The ProLife Alliance went so far as to register as a political party and to stand a sufficient number of candidates in Wales in the general election of 2001 to warrant a party election broadcast. They were denied the opportunity to broadcast the film as originally produced by a collective decision of UK broadcasters based not on objections to political advertising, but rather on the offensive material restriction. Neverheless, the subsequent majority decision of the House of Lords when the group sought judicial review demonstrated that we enjoy only a simulacrum right to freedom of political speech in the UK.

    When ADI sought a section 4 declaration of incompatibility regarding the ban on political advertising from the House of Lords, the court unanimously refused. The law lords considered that the restriction on freedom of speech was justified by the perceived need to prevent wealthy groups from dominating the public sphere (this conclusion was questionable on a number of bases). Having accepted the Government's (palpably untenable) line that there was no way in which a less restrictive mechanism could be devised, they said the restriction was necessary and not disproportionate. The Strasbourg court has repeatedly disagreed (see for the latest installments).

    Interestingly though, in part responding to elements of Strasbourg rulings, in ADI Lord Scott insisted that the House of Lords should not:

    be taken to be franking sections 319 and 321 against any possible attack made on article 10 grounds. The width of the statutory prohibition is remarkable... a good deal of commercial advertising is likely to be objectionable to the principles of some section of the viewing public. For example, the broadcasting of an advertisement encouraging people to patronise some particular zoo or circus would be likely to offend ADI and its supporters; the broadcasting of an advertisement encouraging people to eat burgers of various sorts would be likely to offend organisations that disagree with the manner in which beef cattle are reared or slaughtered or both; the broadcasting of advertisements encouraging people to buy a turkey for Christmas dinner would be likely to offend organisations who want the intensive rearing of poultry banned; and so on. Why should these organisations not counter the broadcasting of advertisements that offend their principles with the broadcasting of their own advertisements promoting their principles? It was not suggested that the purpose of ADI's "My Mate's a Primate" campaign was to counter the broadcasting of advertisements promoting any zoo or zoos in which primates are kept in cages but if that had been the case the arguments justifying the statutory prohibition might have been difficult...I conclude, therefore, that there may be respects in which sections 319 and 321 are incompatible with article 10 (at [41]-[42]).

    Any takers?