Support Libel Reform in England November 10, 2010

Support Libel Reform in England

All the Simon Singh drama of the past couple years shows how badly libel reform is needed in the UK. Right now, free speech appears to be at a premium. Bloggers, like print journalists, could get sued for mere criticism and not actual libel.

The good news is that a draft Defamation Bill will be announced in the new year. Hopefully, the reforms will be majors ones, allowing the UK to catch up with other western countries on that front.

Want to show your support?

Sign this petition.

Freedom to criticise and question, in strong terms and without malice, is the cornerstone of argument and debate, whether in scholarly journals, on websites, in newspapers or elsewhere. Our current libel laws inhibit debate and stifle free expression. They discourage writers from tackling important subjects and thereby deny us the right to read about them.

The law is so biased towards claimants and so hostile to writers that London has become known as the libel capital of the world. The rich and powerful bring cases to London on the flimsiest grounds (libel tourism), because they know that 90% of cases are won by claimants. Libel laws intended to protect individual reputation are being exploited to suppress fair comment and criticism.

We the undersigned, in England and beyond, urge politicians to support a bill for major reforms of the English libel laws now, in the interests of fairness, the public interest and free speech.

There are already more than 50,000 signatures. But the more support there is, the better chance there will be of meaningful libel reform.

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  • Thanks. Done. And shared to my wall.

  • Nordog

    There are similar issues in Canada. Writer’s have been prosecuted for criticizing Islam for example.

    Not good.

  • cat

    I do not feel knowledgable enough about Bristish law to feel comfortable stating an opinion on it. Does anyone have a good link to the basics and how they differ from US law (I have a decent understanding of US libel law)?

  • David B.

    “Bloggers, like print journalists, could get sued for mere criticism and not actual libel”

    “Fair comment” is a defence against libel in the UK, in fact it’s the defence Singh used to get the suit thrown out. It is precisely because he argued his article was “mere criticism” that he won his appeal. Had he maintained that homoeopathy was in fact a bogus (ineffective) treatment, the case would almost certainly have gone to court.

    I’m not sure Singh would have been that much better off had he made these comments in the US either. Maybe ‘cat’ will correct me on this but according to Wikipedia both accusing someone of a crime and adversely reflecting on a person’s fitness to conduct their business or trade are actionable per se. Accusing someone of knowingly selling cures with no therapeutic value would probably qualify as both.

  • cat

    @David B., libel per se is a standard used in regards to proving damages, not proving liability. The use of libel per se for other purposes (such as presumption of malicious intent) was declared unconstitutional in the sixties in regards to public figures, but, even before that, the plaintiff still had to prove the statements were false (so, if you accused an actually incompetant worker of incompetance, it is never libelous, even if it does great harm to their reputation or employment status). For a public figure, not only do they also have to show that the publisher knew the statement was false (or, in some jurisdictions, acted with reckless disregard for the statement’s possible falsity), they have to show malicious intent. In addition, most jurisdictions, including the federal courts, require a higher burden of proof in libel cases than in most other civil cases, being that of ‘clear and convincing evidence’ rather than ‘preponderance of the evidence’. The pleading standards for libel are stricter than most causes of action. Now, if the plaintiff is a private individual, the malicious intent part is often removed, but the part about falsity is not. Truth is an absolute defense against libel in the US, and the plaintiff has the duty to demostrate that the statements were false. Parody, satire, reasonable belief in the truth of the statements, etc. are defenses as well. Libel cases with a ‘private figure’ plaintiff are hard, but winning is not unheard of, but libel cases with a ‘public figure’ plaintiff are virtually impossible to win since NY Times v Sullivan held that mere falsity in regards to certain types of statements could not be sufficient to presume malice( A lot of censorship in the US is voluntary self censorship and the publisher would win soundly in court.

    If the plaintiff has shown the falsity and itent, then the issues of damages comes up. It is not enough to win in a US civil case that the other party did something bad, you have to show that what they did caused you damages (some sort of harm). ” accusing someone of a crime and adversely reflecting on a person’s fitness to conduct their business ” is automatically considered to have caused them harm, so the plaintiff would not have to make a case on that issue. Otherwise, the plaintiff would need some evidence that they lost wages, job opportunities, etc. before they would be able to win the case.

    The case against Singh (based on my knowledge of the facts) involved statements against a public organization. The BCA would never manage to get themselves declared a private figure in a US court. They would have to prove with clear and convincing evidence that Singh’s statments were false, that he either knew or should have known so long as he was not reckless that they were false, and that he published them with malicious intent. BCA would get obliterated in a US court.

    (okay, so I am in law school and perhaps my meaning of ‘decent understanding’ of a legal standard is different than most people’s…)

  • David B.

    @cat, thanks, that clears up a lot of questions.

    Personally, I am quite thankful that UK libel laws are nothing like the system you describe, which appears to me to be fundamentally broken and at odds with the dictates of logic and natural justice.

    Burden of proof, since Ancient Greece, has always been upon the person making the assertion. Yet the system you describe calls for a libel plaintiff to prove he is innocent of the defamatory accusations of the other party, a clear reversal of this burden in my view.

    Under UK law, libel is a civil case of defamation by one party against another, so the initial legal arguments are to whether the statements made were actually made by that party and whether they actually constitute defamation. This is up to the libelled party to prove and if they cannot do so then there is no libel suit to answer and the matter ends there (excepting appeals). If the bringer of the suit can prove that the other party made defamatory remarks against him, they in turn have an absolute defence in law of justification (truth, determined by burden of proof).

    So the difference appears to be that in the UK the libelled party must first prove defamation, while in the US they must first prove the falsity of the claims. Hence there is no “reversal of burden of proof” as often claimed that I can see. The BCA claimed defamation and had then to prove it, leaving Singh to demonstrate his statements were in some way justified in spite of their defamatory character.

    I think I prefer the UK system, where I don’t have to first prove I’ve never deliberately infected household pets with leprosy if accused of such, or some other negative. The problems with the UK system today are the very low criteria for defamation applied by the courts and the absurd expense of libel suits (to both parties) compounded by the unavilability of ‘legal aid’ in libel cases.

  • David B.

    “(truth, determined by burden of proof)”
    That should read “preponderance of evidence”, sorry.

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