This year and next may come to be looked back on as the beginning of the end of the UK’s status as one of the most claimant-friendly defamation jurisdictions in the world. But how did we get here, and what might this sea change mean for solicitors and their clients?

May 2010 saw Lord Lester of Herne Hill QC’s introduction of a Private Member’s Defamation Bill into the House of Lords, which aimed to codify the existing defences of justification and fair comment, and deal with issues such as: the ability of companies to bring defamation actions; trial by jury; online defamation; and absolute and qualified privilege.

The bill is unlikely to make it onto the statute books, but the government has announced that it will publish its own draft defamation bill in 2011, which may incorporate some of its provisions. The bill has been touted as tackling the problems of ‘libel tourism’ and the single publication rule, which allows for open-ended liability in cases of online defamation. The introduction of a statutory public interest defence, which would extend beyond mainstream journalism to protect those in, for example, the scientific community, is also being considered.

The need for this last provision became apparent after the litigation brought by the British Chiropractic Association (BCA) against science writer Dr Simon Singh, over an article he wrote for the Comment & Debate section of the Guardian, questioning the efficacy of chiropractic treatment for children and the BCA’s role in promoting it. The case became a rallying point for those who claimed that libel laws were increasingly being used to stifle scientific debate.

Mr Justice Eady originally ruled that Singh’s words were not comment, and that he would have to prove the objective truth of his article to defend himself. This was overruled by the Court of Appeal, however, and the BCA then dropped its action.

Niri Shan, partner and head of trademarks, copyright and media at Taylor Wessing, says the outcome of this case helps to clarify what the court will view as a comment, and what as a statement of fact – an important distinction, given the availability of the defence of honest opinion for comments.

‘The adverse publicity generated for the claimant in this and other cases will make claimants think hard as to whether they want to take on these sorts of cases because, even if the merits are good, they face the prospect of adverse comment for trying to silence their critics.’

Jeremy Clarke-Williams, a partner at Russell Jones & Walker, says that, from a legal point of view, the most interesting conclusion drawn from the case was the Court of Appeal highlighting the risk inherent in the court’s usual approach: deciding whether the offending words are comment only after first deciding what the meaning of those words is (according to the single meaning rule).

He says: ‘The Court of Appeal indicated that this may not be the best approach "because the answer to the first question may stifle the answer to the second". Scientific debate is always likely to include subjective expressions which can be more readily characterised as opinion rather than fact. It is, therefore, important to consider words in their full context.’

Code of practiceOlswang associate Ashley Hurst says libel cases are very fact-sensitive, so codifying the law into a statute is a difficult exercise because it would need to account for many different scenarios.

‘This is why the law in this area is predominantly judge-made and found in decades of case law, which often makes it difficult to interpret,’ he says. ‘Codifying libel law into a statute may simplify certain areas, such as honest comment and qualified privilege, but the old case law will still be relevant to decide the finer points of libel, such as the meaning of words and the distinction between fact and comment.’

Clarke-Williams says the general view is that, if Lester’s bill, in some amended form, becomes a statute, there will be significant litigation thereafter, as parties seek to establish the precise way in which its provisions should be interpreted. He adds that this case law will help to make sure the new legislation can ‘develop and change in accordance with society’s needs’.

‘Testing’ the law in this way can also highlight flaws in the legislation; the controversial proposal (at clause 12) that a libel action must be struck out if the claimant cannot show that the libel has caused substantial harm to his or her reputation ‘will only lead to expensive applications in almost every case, as defendants test whether or not substantial harm has been caused’.

Clarke-Williams is a member of Lawyers for Media Standards which, he says, was set up to champion ‘a level playing field… in the civil justice system for both freedom of expression and the personal rights to privacy and a reputation’. The body feels this aim can only be achieved through ensuring high quality standards in the media.

‘One would assume the mainstream media, seeing the huge quantity of unfiltered, unchecked and often untrue material which appears on the internet, would heartily endorse and applaud all efforts to maintain media standards,’ he says. ‘Indeed, one suspects their future depends on it.’

There is certainly, says Hurst, an internet element to most defamation claims now, even if it is dealing with the online versions of newspaper articles. He says: ‘One particular trend has been the growth of work in identifying and bringing proceedings against anonymous bloggers and forum users who use the internet to vent their frustrations and maliciously damage individuals and companies. They are not always as anonymous as they think.’

He adds that libel law has not really changed to reflect new technology, other than the development of a specific defence for internet intermediaries in section 1 of the Defamation Act 1996.

‘The courts have simply applied the existing laws to new situations arising on the internet,’ says Hurst. ‘Technology has advanced significantly since 1996 and so this is one area where a fresh approach is needed in drafting the new legislation to account for the different roles played by search engines such as Google, platforms such as Facebook, and broadband providers such as BT and Orange."

Across the pondEngland and Wales may be a dream jurisdiction for foreign claimants, but that does not mean that our law is well regarded abroad. Withers’ media specialist Amber Melville-Brown points out that many critics of our defamation laws, especially in the US, bemoan them for being anti-constitutional, draconian, and anti-free speech.

She says: ‘Indeed, so reviled are the defamation laws of England and Wales in New York, that the state enacted the frighteningly named Libel Terrorism Protection Act (also known as Rachel’s Law). This allows US defendants to launch a pre-emptive strike against a foreign libel judgment and have it declared unenforceable in the state of New York.’

Harbottle & Lewis senior associate Jo Sanders-Key says some of the international coverage of libel reform has been lamentably short on hard facts; hardly any of the press coverage of the recent enactment of a US law which declares English libel judgments to be unenforceable in US courts mentioned ‘the significant fact that this does not change the position that has existed since Telnikoff v Matusevich in 1997’.

She also warns that statutory measures to tackle libel tourism could be unnecessary and counter-productive: ‘This is an area where we should be careful of establishing hard boundaries of a number of hits or copies: serious damage can be suffered by an individual from even a few people reading and believing an allegation, depending on who those people are.’

The court, she says, seems best placed to see which claims are uncomfortably contrived to squeeze into the English courts, and which have a proper and natural link to this country.

Melville-Brown points out one way in which the system here is, arguably, better balanced than in the US. She says that the placing of the burden of proof on the defendant (rather than, as in the US, on the claimant), has its merits: ‘If the media – which has so much power to persuade millions of readers – is to publish information to the public, then is it really overly onerous to require the media to be able to prove that what it publishes is true?’ As she points out, the media has other defences at its disposal, including not only fair comment, but also public interest privilege.

The latter allows a defendant to publish a false allegation, but be provided with a complete defence to a claim in defamation if the publisher can show that he or she published responsibly and in the public interest. It was applauded at its inception as being a much-needed lifeline for the media, but, according to the media, has never lived up to its potential, being too restrictively applied by the judiciary. And it took something of a knock recently with the Court of Appeal’s decision in Flood v Times Newspapers Ltd.

Clarke-Williams thinks, however, that our libel laws should be focused on protecting not the UK’s powerful and well-resourced media organisations, but ‘individuals of modest means’ who bring cases against those organisations.

He adds: ‘If one looks at the health and vigour of the mainstream media in this country compared with most other countries, one would probably conclude that the libel laws have not restricted their legitimate activities in any detrimental way.’

Injunctions in fashionInjunctions against the media have been big news recently. Injunctive relief can be a powerful weapon in the armoury of a media lawyer and their clients. Melville-Brown says: ‘To a claimant who is seeking to protect their private life and/or to prevent the unauthorised disclosure of confidential information, an injunction is a pretty super remedy. Indeed, it is the one important remedy that the privacy claimant seeks.’

In defamation cases, she says, pre-publication injunctions are rarely ordered, with an award of damages at trial considered to be a proper manner in which to vindicate the claimant’s damaged reputation.

‘But in privacy and confidence cases, once the private genie is out of the bottle, or the confidential cat is out of the bag, there is little chance of getting either back in. Once the damage is done, damages cannot properly undo the harm that has been done to the claimant. For the claimant who jealously guards his privacy, the interim injunction is the remedy.’In recent years, a device dubbed a ‘super injunction’ has been devised. This court order allows not only the offending material to be suppressed, but also the existence of the relevant court proceedings and court orders.

Often described as one of the law’s nuclear weapons, the super injunction can nevertheless backfire spectacularly, as in the case of then England captain John Terry, who initially obtained such an injunction over details of an extra-marital affair, only to have it overturned, and be pilloried twice over in the press – first for his infidelity, and second for trying to use the super injunction to conceal it.

Then there was last year’s furore over trading company Trafigura. Accused of dumping toxic sludge in Africa, Trafigura initially successfully used a super injunction to suppress the release of embarrassing documents on the topic. When Paul Farrelly MP tabled a question about the injunction and the documents in parliament, Trafigura’s lawyers, Carter-Ruck, tried to suppress the reporting of the question. However, the use of the super injunction apparently to stifle public debate led to outrage in the House of Commons, and the injunction was eventually trumped by parliamentary privilege and the 300-odd years of precedent affirming the right of the press to report whatever MPs say in the House of Commons.

Hurst says the issue of super injunctions has been overblown; in fact, few are actually obtained. He adds that they can also have a valid purpose: ‘In some circumstances, it is necessary to prevent reporting of an injunction to prevent inevitable speculation on the internet as to who the anonymous parties are, which can defeat the purpose of the injunction.

Clarke-Williams concludes that although it is always difficult to predict the future of defamation law, it is safe to assume that the media will continue to lobby for a relaxation of the libel laws, particularly in the area of qualified privilege: ‘It is more likely than not that some form of statute arising from Lord Lester’s Defamation Bill and the government’s stated intent will eventually be passed. However, the most significant changes are likely to flow from Lord Justice Jackson’s review of costs in the civil justice system.’

He adds that it will also be interesting to see to what extent mediation and alternative dispute resolution is developed in coming years: ‘Court action can be an expensive and long-winded way of resolving a dispute, and other options should perhaps be more readily available and deployed.’

Lucy Trevelyan is a freelance journalist

  • This is an edited version of an article first published in the October issue of Solutions, the magazine of the Law Society’s Civil Justice Section. For more details about the section, call: 020 7320 5873 or send an email .