Draft bill on libel reform fails to ensure swifter and cheaper resolution of casesBMJ 2011; 343 doi: https://doi.org/10.1136/bmj.d6856 (Published 21 October 2011) Cite this as: BMJ 2011;343:d6856
The United Kingdom government’s draft bill to reform the libel laws in England and Wales does not go far enough and will do little to tackle the problem of unacceptably high costs, concludes a cross party committee of peers and MPs set up to scrutinise the bill before legislation.
The committee of both houses of parliament says the draft defamation bill fails to confront the high costs and uncertainty about outcomes that are said to be the key factors chilling free speech.
The bill makes some changes to the law and codifies some parts of the existing case law in statutory form, but the committee demands wide ranging procedural changes in the way cases are dealt with to ensure earlier, cheaper, and speedier resolution.
The interventional cardiologist Peter Wilmshurst, who was sued by the US makers of a medical device over comments on a clinical trial he co-led, and the science writer Simon Singh, sued by the British Chiropractic Association over his opinion that they promoted “bogus” treatments, ran up legal bills of over £100 000 dealing with preliminary issues.
The committee says that the changes to procedures proposed by the government “are largely a tightening up of existing mechanisms: they cannot be seen as radical and do not go far enough towards reducing costs to the extent that legal action will be accessible to the ordinary citizen.”
The peers and MPs recommend that the first step after the initial exchange of letters required before a libel action should be mediation or “early neutral evaluation” by an independent third party, a form of alternative dispute resolution. Mediation should be “swift, inexpensive, and resistant to delaying tactics,” and failure to engage should be punishable by awards of costs. There should also be more aggressive case management by judges to minimise costs.
Claimants should have to show that they have suffered “substantial and serious harm” in order to start libel proceedings, not just “substantial harm,” as the draft bill provides. And foreign individuals and companies should not be able to use the English courts to resolve disputes where the principal damage has been suffered elsewhere.
The committee recommends extending the protection of qualified privilege to peer reviewed articles in scientific and academic journals. This would protect publishers if they published something that they could not prove was true, unless they knew it was false or were reckless as to whether it was true or not.
And in determining whether a publication qualifies for the “Reynolds defence”—responsible reporting in the public interest—the list of factors should include a reference to the resources of the publisher.
Companies should have to prove that they are likely to suffer “substantial financial loss” as a result of a defamatory statement before they can sue for libel, and the loss of goodwill or a fall in their share price will not be enough, the committee says.
The Libel Reform Campaign called on the government to honour its manifesto commitment to reform the law by including the bill in the next Queen’s speech.
Cite this as: BMJ 2011;343:d6856
First Report of the Joint Committee on the Draft Defamation Bill is at www.publications.parliament.uk/pa/jt201012/jtselect/jtdefam/203/20302.htm.