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Incoherent legal reform risks 'death of libel' warn researchers

The adoption of the many current proposals to reform the laws of defamation would leave the media free to publish false allegations with little fear of being put to redress according to a report from a lawyer at LSE today.

Dr Andrew Scott from the Department of Law, and his co-author Professor Alastair Mullis from the University of East Anglia, argue that the public debate concerning the reform of libel law – as being played out in the media –  has been one-sided.

In their report Something Rotten in the State of English Libel Law? they highlight and respond to criticisms of libel law that the researchers believe are based on partial understandings of the existing law.

Dr Andrew Scott said: 'Press freedom and discussion are vital to democracy. Misuse of an overbroad, and particularly an overly costly, libel regime can impact upon investigative journalism, scientific discussion, and the important work of NGOs.

'However, the reality of most libel actions, which involve bullied and harassed claimants challenging damaging inaccuracies perpetuated by multinational media corporations has somehow been lost from the debate.'

newspaperThe report tackles, for example, the often cited problem of libel tourism where it is claimed that people with few real links to the UK bring proceedings here to take advantage of our restrictive libel laws.

The report points out, however, that the British courts exercise discretion to strike out claims when no real and substantial wrong has been committed here. The authors believe that concerns over libel tourism – and the impact of libel law more generally – can be resolved by addressing the scale of legal costs that defendants face when embroiled in libel proceedings. This might be achieved by introducing a specialised libel tribunal, media co-regulation, or some other cost-saving process change.

The report also proposes that in order to prevent the law being used to pressure journalists and others against bringing to public attention important information regarding the activities of the powerful, defendants should be allowed a means to counter-sue. This would allow them to recover costs and obtain damages where attempts have been made to silence them. This would immediately see a prospective plaintiff pause to reconsider the advisability of bringing an intimidatory action.

Professor Alastair Mullis from the University of East Anglia said: 'Libel reform must be coherent, not piecemeal and un-principled. It must balance the competing individual and social interests in freedom of expression, reputation and privacy, and should not weight the scales in advance. We have tried to highlight those areas in which there might be constructive reform. At the same time we have sought to expose those reform proposals that we fear would be superfluous or worse.'

The report published discounts as unnecessary, or even dangerous, a number of existing reform proposals:

  • revising the existing rules on jurisdiction to stem 'libel tourism';
  • improving the public interest defence;
  • broadening the defence of fair comment;
  • exempting internet hosts and online interactive chat from liability;
  • reallocating the burden of proof as to truth/falsity, and
  • capping libel damages.

The report also highlights five key areas upon which future policy debate should centre:

  • introducing a single publication rule for online publication;
  • introducing a specialised libel tribunal, media co-regulation, or some other cost-saving process change;
  • denying standing to corporate entities;
  • relieving the costs burden, and
  • introducing legislation to permit defendants to counter-sue abusive libel claimants.

 The report was written by Dr Scott and Professor Mullis for Lawyers for Media Standards. This is a newly formed group comprising solicitors involved in protecting individuals' rights and freedoms in the important areas of reputation and privacy.

More information for the media is available from:
Sue Windebank, LSE press office: 020 7849 4624, E-mail: s.windebank@lse.ac.uk

27 January 2010