John Kampfner: So you think we've got free speech in Britain? Think again

Nobody sensible wants to abolish libel law, to allow a free-for-all in which reputations are impugned without a right to redress. It's about balance and proportion

Share
Related Topics

There's nothing like a boob job cream to get readers going on an important issue. The case of Dr Dalia Nield, one of the country's leading plastic surgery consultants, goes to the heart of the problem with English libel law. Dr Nield took issue with the company producing the cream, which claimed to increase a woman's cup size. Her remarks, in a national newspaper, produced a familiar outcome – a threat of action from Britain's legal establishment.

A citizens' advice bureau has been threatened for challenging the conduct of a fraud-prevention firm. An official at a south London borough is being sued for comments allegedly made about a local headmaster in emails between himself and a civil servant.

These cases and more attest to a culture in the UK of the citizen critic being prevented from airing concerns on matters of public interest. For decades England's defamation culture (Scotland's is marginally better) has been skewed towards the claimant – usually the rich, the powerful and quite often the plain dodgy.

This is not an issue confined to the rights of journalists and writers. I could have mentioned the talismanic case of Simon Singh, or Mumsnet, or Sheffield Wednesday football fans, or the cardiologist Peter Wilmshurst, who is being dragged through the courts for remarks he made at a medical conference in the US about the clinical trial of a heart device. So far, so terrible: and yet, after a year-long lobbying campaign, the law is set to change. This spring the Coalition Government launches its draft Defamation Bill – the first serious attempt to rebalance the law for generations.

Politicians have come a long way in a short space of time. When the Libel Reform Campaign was started in November 2009, only the Liberal Democrats supported change. Jack Straw, then Justice Secretary, said originally he did not know what all the fuss was about.

Straw's complacency ran in the face of the evidence, but also a ground-breaking report by the House of Commons Culture, Media and Sport Select Committee. In the course of a long inquiry, many of its members changed tack. Its report on libel, privacy and press standards in February 2010 struck an eloquent balance between free expression and the duties of the media. The MPs criticised the Labour government for not tackling libel tourism, and the damage to the country's reputation. They described the fact that US states were introducing legislation to defend American citizens from UK courts as "a humiliation for our system that the US legislators should feel the need to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts".

Straw responded by launching a Justice Ministry working party in which Index on Censorship (of which I am chief executive), English PEN and Sense About Science played a leading role. All three main parties went into the 2010 election promising radical reform, and within months that process had begun. First, in the Lords, the indomitable civil libertarian Lord Lester launched his own private member's bill on libel. Lester's bill marked a quiet revolution. Its remit was broad: to introduce a statutory defence of responsible publication on a matter of public interest; clarify the defences of justification and fair comment; require claimants to show substantial harm and corporate bodies to show financial loss; and to deal with libel tourism. In a nod to the 21st century, the bill also sought to address the problems of the internet age, including multiple publication and the responsibility of internet service providers and hosts.

This was immediately taken up by the government, led by the Lib Dem Justice Minister, Lord McNally, who recently told the first anniversary meeting of the campaign that Britain's laws were "not fit for purpose". McNally's government bill, which develops Lester's work, will be published by late March, ushering in a six-month period of pre-legislative scrutiny.

From that point the battle will move from the principle to the detail. The forces of resistance – the claimant cabal – will do everything it can to maintain its profit margins. According to an Oxford University report in 2008, the overall cost of a defamation case in England and Wales is 140 times higher than the European average. These law firms will lobby to water down and possibly even reverse the bill's most important provisions.

Our critics suggest that our campaign is a proxy for "big media". We are not. We speak for over 40 civil society groups. The UK's main newspapers are capable of looking after themselves. We aim to make it harder for oligarchs and sheikhs to use English courts to stifle free speech around the world. We aim to repair a body of law that has seen countless individuals and voluntary organisations either sued in court or forced into apologising for and retracting comments, articles and books, even though they have done nothing wrong. Legal firms deliberately string things along in order to drain the defendant of energy and cash. The cases that do not make it to court are often more alarming than the ones that do.

Libel is not a zero sum game. Nobody sensible wishes to abolish it, to allow a free-for-all in which reputations are impugned without any right to redress. The issue is balance and proportion. Nor do we ignore the other attendant issues such as the reputation and standards of the media, or that other fundamental human right, to privacy. Our organisations will shortly be conducting separate research to help develop alternative dispute mechanisms for people who seek redress in a less confrontational forum.

Considerable work lies ahead to ensure that the final legislation, due to be enacted in 2012, does not lose sight of the fact that the UK currently has one of the most repressive libel regimes in the Western world. Its effects are felt far and wide. Anyone, anywhere can be sued in a London court for anything said in any language – as long as the defendant can prove a "reputation" in the UK. (Second home? Child in boarding school?).

It is no wonder that the US Congress followed New York and other states and signed into law measures that protect Americans against English libel judgements. Three weeks ago, Ukraine's top English-language publication said it was blocking all web traffic from the UK to insulate itself from Britain's "draconian" laws. That word "humiliation" seems more apposite than ever.

John Kampfner is chief executive of Index on Censorship. To sign the libel reform petition go to www.libelreform.org; Twitter.com/johnkampfner

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Recruitment Genius: Renewals Sales Executive

£20000 - £30000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: PHP Developer

£25000 - £40000 per annum: Recruitment Genius: A PHP Developer with knowledge ...

SThree: Associate Recruitment Consultant

£18000 - £23000 per annum + OTE: SThree: SThree are seeking Associate Recruitm...

Recruitment Genius: Senior Software Engineer - PHP

£33000 - £50000 per annum: Recruitment Genius: This is an exciting opportunity...

Day In a Page

Read Next
 

The Top Ten: Words In Christmas Carols That Ought To Be Revived

John Rentoul
Polish minister Rafal Trazaskowski (second from right)  

Poland is open to dialogue but EU benefits restrictions are illegal and unfair

Rafal Trzaskowski
Homeless Veterans appeal: 'You look for someone who's an inspiration and try to be like them'

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Could cannabis oil reverse the effects of cancer?

Could cannabis oil reverse effects of cancer?

As a film following six patients receiving the controversial treatment is released, Kate Hilpern uncovers a very slippery issue
The Interview movie review: You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here

The Interview movie review

You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here
Serial mania has propelled podcasts into the cultural mainstream

How podcasts became mainstream

People have consumed gripping armchair investigation Serial with a relish typically reserved for box-set binges
Jesus Christ has become an unlikely pin-up for hipster marketing companies

Jesus Christ has become an unlikely pin-up

Kevin Lee Light, aka "Jesus", is the newest client of creative agency Mother while rival agency Anomaly has launched Sexy Jesus, depicting the Messiah in a series of Athena-style poses
Rosetta space mission voted most important scientific breakthrough of 2014

A memorable year for science – if not for mice

The most important scientific breakthroughs of 2014
Christmas cocktails to make you merry: From eggnog to Brown Betty and Rum Bumpo

Christmas cocktails to make you merry

Mulled wine is an essential seasonal treat. But now drinkers are rediscovering other traditional festive tipples. Angela Clutton raises a glass to Christmas cocktails
5 best activity trackers

Fitness technology: 5 best activity trackers

Up the ante in your regimen and change the habits of a lifetime with this wearable tech
Paul Scholes column: It's a little-known fact, but I have played one of the seven dwarves

Paul Scholes column

It's a little-known fact, but I have played one of the seven dwarves
Fifa's travelling circus once again steals limelight from real stars

Fifa's travelling circus once again steals limelight from real stars

Club World Cup kicked into the long grass by the continued farce surrounding Blatter, Garcia, Russia and Qatar
Frank Warren column: 2014 – boxing is back and winning new fans

Frank Warren: Boxing is back and winning new fans

2014 proves it's now one of sport's biggest hitters again
Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas