Libel Law Reforms : A Licence For Free Speech?

This is a Training Zone post. For the main radio blog click here»Libel Tourism
The libel law in England and Wales is among the toughest in Europe

 This week the Ministry of Justice published its plans to overhaul the law on libel. And for anyone training to be a journalist, this is stuff you really should be reading up on.

The challenges posed by the existing laws were summed up perfectly by the Justice Minister, Ken Clarke.

 
 
 

 

Ken Clarke, Justice Secretary

 

“In recent years the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate, and investigative journalism. However it is never acceptable to harm someone’s reputation without just cause, so the bill will ensure defamation law continues to balance the needs of both sides and encourage a just outcome in libel cases.”

 

 

And he should know, being a trained QC. But the proposed reforms also raise an ethical question. What constitutes a story being in the public interest? For those new to journalism, this is often a difficult concept to grasp. You’ve come across a great story, and you want to get it out there. You’re convinced that what you’re doing is the right thing.

Thankfully, the NUJ’s Ethics Council has, for more than three years, had its own guidelines on this matter.

  1. The public interest includes:
    a) Detecting or exposing crime or a serious misdemeanour
    b) Protecting public health and safety
    c) Preventing the public from being misled by some statement or action of an individual or organisation
    d) Exposing misuse of public funds or other forms of corruption by public bodies
    e) Revealing potential conflicts of interest by those in positions of power and influence
    f) Exposing corporate greed
    g) Exposing hypocritical behaviour by those holding high office
  2. There is a public interest in the freedom of expression itself.
  3.  In cases involving children, journalists must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child.

Other organisations, like the BBC, might go a little further. The Corporation’s Editorial Guidelines make similar observations to the NUJ’s.

But back to those libel laws. What will they mean for journalism? The Ministry of Justice’s consultation document contains the following summary  

    • A new requirement that a statement must have caused substantial harm in order for it to be defamatory (so how do you define substantial? See public interest above) 
    • A new statutory defence of responsible publication on matters of public interest
    • A statutory defence of truth (replacing the current common law defence of justification) 
    •  Provisions updating and extending the circumstances in which th defences of absolute and qualified privilege are available
    • Removal of the presumption in favour of jury trial, so that the judge would have a discretion to order jury trial where it is in the interests of justice
    • A statutory defence of honest opinion (replacing the current common law defence of fair/honest comment)

    So, as you can see, the link between libel and the public interest is maybe closer than you might have first thought?

    But not everyone’s convinced about the proposals, as the BBC reports  

     

    Rod Dadak, Defamation Lawyer

     

    Rod Dadak, head of defamation at law firm Lewis Silkin, said the bill “tends to favour media organisations whilst not doing enough to protect the defamed” and could have been “sponsored by the media”.

     

    One might also argue that the Bill tends to make defamation lawyers have to work even harder for their money. And just for clarity, that’s an honest opinion, nothing more…

 © NewsMutt 2011

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