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

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;

React Now

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

SThree: Trainee Recruitment Consultant

£18000 - £23000 per annum + Uncapped commission: SThree: Does earning a 6 figu...

Recruitment Genius: SEO Executive

£18000 - £25000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: New Lift Sales Executive - Lift and Elevators

£35000 - £40000 per annum: Recruitment Genius: A challenging opportunity for a...

Recruitment Genius: Customer Service / Receptionist

£14000 - £20000 per annum: Recruitment Genius: This is an exciting opportunity...

Day In a Page

Read Next
Cameron and Miliband went head-to-head in the live televised debate last night  

The Battle for Number 10: Great TV but not an interview for the job of prime minister

Alice Jones
Durham Free School, which has already been ordered to close, has been accused of harbouring  

From creationism and bullying to reading abilities that go backwards, free schools are a complete and utter failure

Tristram Hunt
The saffron censorship that governs India: Why national pride and religious sentiment trump freedom of expression

The saffron censorship that governs India

Zareer Masani reveals why national pride and religious sentiment trump freedom of expression
Prince Charles' 'black spider' letters to be published 'within weeks'

Prince Charles' 'black spider' letters to be published 'within weeks'

Supreme Court rules Dominic Grieve's ministerial veto was invalid
Distressed Zayn Malik fans are cutting themselves - how did fandom get so dark?

How did fandom get so dark?

Grief over Zayn Malik's exit from One Direction seemed amusing until stories of mass 'cutting' emerged. Experts tell Gillian Orr the distress is real, and the girls need support
The galaxy collisions that shed light on unseen parallel Universe

The cosmic collisions that have shed light on unseen parallel Universe

Dark matter study gives scientists insight into mystery of space
The Swedes are adding a gender-neutral pronoun to their dictionary

Swedes introduce gender-neutral pronoun

Why, asks Simon Usborne, must English still struggle awkwardly with the likes of 's/he' and 'they'?
Disney's mega money-making formula: 'Human' remakes of cartoon classics are part of a lucrative, long-term creative plan

Disney's mega money-making formula

'Human' remakes of cartoon classics are part of a lucrative, long-term creative plan
Lobster has gone mainstream with supermarket bargains for £10 or less - but is it any good?

Lobster has gone mainstream

Anthea Gerrie, raised on meaty specimens from the waters around Maine, reveals how to cook up an affordable feast
Easter 2015: 14 best decorations

14 best Easter decorations

Get into the Easter spirit with our pick of accessories, ornaments and tableware
Paul Scholes column: Gareth Bale would be a perfect fit at Manchester United and could turn them into serious title contenders next season

Paul Scholes column

Gareth Bale would be a perfect fit at Manchester United and could turn them into serious title contenders next season
Inside the Kansas greenhouses where Monsanto is 'playing God' with the future of the planet

The future of GM

The greenhouses where Monsanto 'plays God' with the future of the planet
Britain's mild winters could be numbered: why global warming is leaving UK chillier

Britain's mild winters could be numbered

Gulf Stream is slowing down faster than ever, scientists say
Government gives £250,000 to Independent appeal

Government gives £250,000 to Independent appeal

Donation brings total raised by Homeless Veterans campaign to at least £1.25m
Oh dear, the most borrowed book at Bank of England library doesn't inspire confidence

The most borrowed book at Bank of England library? Oh dear

The book's fifth edition is used for Edexcel exams
Cowslips vs honeysuckle: The hunt for the UK’s favourite wildflower

Cowslips vs honeysuckle

It's the hunt for UK’s favourite wildflower
Child abuse scandal: Did a botched blackmail attempt by South African intelligence help Cyril Smith escape justice?

Did a botched blackmail attempt help Cyril Smith escape justice?

A fresh twist reveals the Liberal MP was targeted by the notorious South African intelligence agency Boss