The law of libel is not working. We should, of course, be wary of deducing this fact from a single case. If Jeffrey Archer and his friends had been telling the truth all along, the ruling against the Daily Star in 1987 would have been justified, although the £500,000 damages would still have been wildly excessive. The truth is, however, that Archer got away with his lies for 12 years and nearly escaped justice altogether. It has long been too easy for the rich and the powerful to abuse the law to protect their affairs from legitimate public scrutiny.
It should also be acknowledged that the law has been improved a little recently. The Defamation Act 1996 made it easier to settle libel cases out of court, for example, although the most important change has been the introduction of the "no win, no fee" principle. This enables people of modest means to sue for libel, provided they have a clear-cut case. There is much that still needs to be done, however, and the Archer drama should prompt action. It cannot be beyond the wit of all the task forces and review groups appointed by this Government to come up with some guidelines to introduce some consistency into the awarding of damages by the courts – and in particular to ensure some parity between loss of reputation and the loss of loved ones.
The law still allows the intimidation of distributors, the tactic deployed by Robert Maxwell to try to prevent newsagents stocking Private Eye. Nor has British law been clarified in respect of the internet, unlike in the US, where the Supreme Court has ruled that the newsagents of cyberspace, the internet service providers, cannot be held responsible for libels posted on their websites.
More important, there is still no reliable public interest defence to defamation, despite a House of Lords ruling two years ago in the case of Albert Reynolds, the former Irish prime minister awarded damages of 1p against the Sunday Times. Then, law lords stressed "the importance of freedom of expression" and said "doubts should be resolved in favour of publication".
But the ruling did not do enough to remove the chilling effect of issuing, or threatening to issue, writs for libel. Nor is there a codified law of privacy in Britain, although we are fast acquiring one by default. Four months ago, a civilian clerk for the City of London police won a case against The Sun (which is appealing) under the law against stalking, the Protection Against Harassment Act. Meanwhile, Anna Ford is seeking judicial review of the Press Complaints Commission's refusal to take action against the publication of photographs of her on a beach where, in the words of the Press Code, she had a "reasonable expectation of privacy".
It would have been preferable if the feeble Freedom of Information Act, which comes into effect next year, had included a robust definition of the right to freedom of expression and balanced it with a subordinate but equally clear definition of the right to privacy. If there had been a statutory right to privacy in this country, who knows?
Perhaps Mr Archer, as he then was, could have used it to protect himself from the Daily Star's original report that he had slept with a prostitute, which ought to have been of no interest to anyone, especially as his wife said strict sexual fidelity did not "rank terribly high" on her scale of importance.
The laws of libel and privacy in Britain have long made a mockery of the idea that we have equal access to justice. Recent improvements should induce not satisfaction but determination fully to complete the task of protecting the little person and the grand celebrity alike.Reuse content