Time to Drag Libel Law into the 21st Century

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The Internet is often presented as an antidote to tyranny, letting the sunlight of truth flood in where all before was dark ignorance. Alas, this rosy picture is not quite true, and in some benighted places it is definitely untrue – notably the UK, thanks to its ridiculously skewed and outdated libel laws.

At last, people are starting to fight back by making concrete proposals about how the present situation can – must – be improved. The Libel Reform Campaign is at the forefront of these moves, and has now published its report:

After a year-long Inquiry, English PEN and Index on Censorship have concluded that English libel law has a negative impact on freedom of expression, both in the UK and around the world. Freedom of expression is a fundamental human right, and should only be limited in special circumstances. Yet English libel law imposes unnecessary and disproportionate restrictions on free speech, sending a chilling effect through the publishing and journalism sectors in the UK. This effect now reaches around the world, because of so-called 'libel tourism', where foreign cases are heard in London, widely known as a 'town named sue'. The law was designed to serve the rich and powerful, and does not reflect the interests of a modern democratic society.

In this report, we cut through the intimidating complexity of English libel law to show how the legal framework has become increasingly unbalanced. We believe that the law needs to facilitate the free exchange of ideas and information, whilst offering redress to anyone whose reputation is falsely or unfairly damaged. Yet our inquiry has shown that the law as it stands is hindering the free exchange of ideas and information. We repeatedly encountered the same concerns, expressed by lawyers, publishers, journalists, bloggers and NGOs, who have no wish to abolish libel law, but know from experience of its chilling effect on legitimate publication.

It offers ten eminently sensible proposals “to restore the balance between free speech and
reputation”:

1. In libel, the defendant is guilty until proven innocent
We recommend: Require the claimant to demonstrate damage and falsity

2. English libel law is more about making money than saving a reputation
We recommend: Cap damages at £10,000

3. The definition of ‘publication’ defies common sense
We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

4. London has become an international libel tribunal
We recommend: No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

5. There are few viable alternatives to a full trial
We recommend: Establish a libel tribunal as a low-cost forum for hearings

6. There is no robust public interest defence in libel law
We recommend: Strengthen the public interest defence

7. Comment is not free
We recommend: Expand the definition of fair comment

8. The potential cost of defending a libel action is prohibitive
We recommend: Cap base costs and make success fees and ‘After the Event’ (ATE) insurance premiums non-recoverable

9. The law does not reflect the arrival of the internet
We recommend: Exempt interactive online services and interactive chat from liability

10. Not everything deserves a reputation
We recommend: Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood

This is an important contribution to a vital area, and I'd urge you to read the whole report if you can. If we don't sort out this area soon, online freedom of speech in this country will be increasingly compromised, and the UK might even find itself as a kind of digital pariah in the international community. Let's hope the UK government reads and acts on the report.

Follow me @glynmoody on Twitter or identi.ca.

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