Recently, there have been claims from a group of politicians in England that our law of defamation is being misused and in urgent need of reform. Those who make the case on behalf of the press (never a bad thing to do in terms of one’s own personal PR, a cynic might observe) claim that the law is being misused by wealthy individuals in order to improperly intimidate British journalists and media organisations to the extent that some newspapers now choose not to cover the activities of certain individuals or organisations out of fear of being sued for libel.
Were this a major issue, I agree that it would be concerning. Of course I believe in freedom of expression and its role in underpinning any democratic society. However, my experience as a lawyer in this field is that the press rarely cower from writing about the rich and powerful. Far from it in fact, as they usually cover such individuals with some zest.
I accept that at any given time, there may well be cases brought against publishers that attract public sympathy, even if the actual number of libel cases may be lower than many would assume (in England, there were only 21 cases issued against national newspapers last year, a number in line with the long-term average; most of which will settle well before trial anyhow).
Public sentiment can rest with a claimant or publisher and people’s perception of a claimant, as opposed to any independent analysis of their actions, is largely dictated by how publishers have portrayed them in the media, accurate or not. Whilst there exists the British tradition of ‘backing the underdog’ – which publishers can sometimes be perceived to be – in reality the mainstream publishers are often owned by very large organisations with better funding than most claimants in (not to mention the benefit of experienced in-house specialist lawyers).
It must be remembered also that much of the press have a considerable bias when it comes to being held to account for their actions (who wouldn’t!), and an unrivalled platform from which they can project their own position and colour the public’s (and MP’s) perception. Since the nineteenth century, press barons have bitterly and vociferously complained about the contemporaneous state of defamation law, in much the same form as these arguments are being made today, so plus ça change.
Any fair analysis must recognise that there have already been significant shifts in this field which have made it far harder for individuals to successfully enforce their rights through the courts (changes that were implemented in the Defamation Act 2013). All in all, it is a clever bit of shapeshifting by press organisations to portray themselves as the underdog in any case.
Ultimately, the law as it stands is intended to provide a remedy to those who have suffered serious harm as a result of a third party publishing false information about them. Unless you are more sympathetic than me to Iago’s stance that “Reputation is an idle and most false imposition; oft got without merit and lost without deserving”, this seems to be an entirely appropriate starting point in law, one which shouldn’t be changed to effectively and arbitrarily exclude a group of individuals based on a perception which is most often created by the very media against whom the individual seeks to enforce their legal rights.
It’s not as if no rights already exist, as even where the fact that a publication is defamatory has been established, various defences may then be available to a potential defendant which are designed to protect those who are responsibly reporting on a matter of public interest or voicing an opinion based on the existing facts.
Cases of the nature described by a few MPs are extremely rare or non-existent, and the law cannot and should not seek to be overly prescriptive. Instead, and as it does, it should provide a legal framework on which the various rights of the parties can be properly balanced and considered.
In addition, there are further checks and balances throughout the court process to protect the parties. These include summary judgment, the early determination of meaning, costs budgeting, the intervention of the courts throughout the process to ensure fair play, and ultimately control over what costs, if any, are awarded at each stage including at the end of a case.
In short, I believe that legislators should be extremely cautious before implementing changes that impede access to justice. Such steps would ultimately strengthen an already powerful press even further, whilst simultaneously lowering their responsibilities and denying legitimate legal rights to those who have been impacted.
Jon Oakley is a partner at Simkins
