Hullo Brian, hullo Sue. You know, in a very real sense, I’m extremely pleased at Simon Singh’s victory in the Court of Appeal. Dr Singh is an all-round good bloke who had right (and science) on his side, and has been through quite an ordeal; Jack of Kent is another all-round good bloke; the British Chiropractic Association has brought upon itself the biggest own goal in the libel courts since David Irving, and deservedly so; a legal outcome that could have been seriously chilling, both in terms of scientific discussion and of this reprehensible trend of suing individuals rather than media organisations, has been staved off; it’s a good result. It’s such an obviously good result that today I am feeling more charitably disposed than usual towards Dr Death Evan Harris and those horrible bastards from Sense About Science, thanks to their work in holding Simon’s coat; I will even forgive the judges for quoting Areopagitica.
What this leads us on to is the libel reform campaign, which is something I have more mixed feelings about, and I’ll try to explain why. The complex network of statutes, precedents and common law that makes up the law of defamation in the English system is pretty hard to unpick – as ever, the I Am Not A Lawyer caveat must be entered here – and, while it’s clear that some things are badly wrong with the system and I’m sympathetic to the principle of reform (it’s always hard to argue against “reform” or “modernisation”), I’m sceptical that a legislative magic bullet can be devised to set everything right. As ever, we must note the law of unintended consequences – if you do A, then problems B and C might be ameliorated, but D and E made worse. This especially applies when governments allow themselves to get bounced into wide-ranging but hastily drafted legislation.
The tone of the argument has been set by journalists, which is not necessarily illuminating. I make no criticism of Dr Singh, in his remarks yesterday, for talking about the legal problems facing the writer; he is a writer who’s just faced some pretty serious legal problems. Nor do I criticise journalists for reporting the issue from the journalist’s perspective. The issue here is one of Sectionalism on the one hand, and the Common Good on the other. By Sectionalism I mean a body of people aggressively fighting their corner, which is entirely justified from their point of view; by the Common Good I mean the need in framing legislation to take a holistic view of society’s needs.
Some time ago, I was watching a TV discussion between then home secretary Jacqui Smith and her then Tory shadow David Davis, who I was pleased to see was on hand at the Court of Appeal yesterday. This was on one of New Labour’s bits of dopey authoritarianism – probably detention without trial, although I don’t really remember. What I do remember is Wacky Jacqui saying that of course this new power was necessary, because she’d asked ACPO if they wanted the additional power and they said Yes please. This did not impress our old friend DD For Freedom, who pointed out the basic fallacy involved – namely, that any time you ask the plod if they want extra powers, they will always say Yes please. Asking the police whether or not they want extra powers is, well, a bit like asking journalists if they want less restrictive defamation laws.
Another fallacy is the belief, commonly expressed on phone-ins, that the law exists to protect good people and punish bad people. Well, the criminal law up to a point (although it strictly punishes bad actions), but civil litigation is a different case. Anyway, a legal system can’t function on the basis of identifying “goodies” and “baddies”. I mention this because Nick Cohen has done some admirable heavy lifting on behalf of Simon Singh, but I suspect this is due more to his personal (and understandable) sympathy for Dr Singh than it is for the legal principle involved. I suspect this because I remember Nick’s reaction to George Galloway successfully suing the Daily Telegraph and Christian Science Monitor, which was (and I paraphrase) that since Gallows is a reprehensible man with reprehensible opinions, the media should have a legally protected right to say anything they liked about him. As it happens, the law doesn’t work like that, as illustrated by the saying that hard cases make bad law. Legislation has to be framed with a basic principle in mind, and then a process has to be set out that is fair to both sides. It has to be fair to both sides because you never know who’s going to win: Simon Singh could easily have lost on the law, or David Irving could have won on the law, and who you sympathise with is neither here nor there legally.
Having said all that, there are some legal things around defamation and (more pertinently) privacy that need looking at again. In this, I was particularly interested in the Select Committee hearings on the issue last year, which took some very good evidence from Alan Rusbridger and Ian Hislop. This evidence pointed out some obvious problems, without taking us into the apocalyptic “ZOMG! Journalism is being killed by a zillion writs before our very eyes!” view you get from reading Private Eye.
The main issue, according to Hislop, was not libel as such – the last reform of the libel laws seems to have improved things quite a bit, or at least the Eye doesn’t get sued as often – but privacy. The right to privacy is enshrined in the Human Rights Act, but Britain has no French-style privacy law, so you end up with judges creating one by the back door via precedent. Since very few judges specialise in media law, more often than not this means the journalist’s bête noire Sir David Eady. (The Eye in particular likes to portray Eady as a judicial rogue elephant who loves nothing more than to crush valiant hacks. But, while some of his decisions have been questionable – notably in BCA v. Singh – he isn’t in the habit of making legally perverse judgements. The legislative framework is the issue.) Therefore, the legal issues around privacy are largely undefined by primary legislation, and Eady J’s judgement in the Max Mosley case (worth reading for comedy value alone) is probably the most important bit of case law. That, of course, leads you on to a very wide-ranging debate about whether there should be a privacy law and, if so, what it should say.
There’s also the issue of libel tourism, which is something that is being dumped into the mix here by the reform campaign. There is an impression going about, assiduously fostered by the press, that the London libel courts are full of corrupt Russian oligarchs and Saudi sheikhs getting injunctions to silence their critics. We don’t know whether or not this is a statistically significant phenomenon, or whether the numbers are going up or down, because the Ministry of Justice hasn’t released any relevant figures (the figures they do release suggest the number of libel writs and of cases tried is fairly stable year-on-year, but you can’t tell the nationality of the parties). All I know is that Private Eye, despite devoting endless column inches to the subject over several years, is still banging on about the same three or four cases. Likewise, we don’t know the scale of the problem with superinjunctions. There is empirical work needs to be done on this for a serious discussion to be had.
There are, at the heart of this whole argument, two main issues. The first is the issue of access to the law. It used to be that you could only afford to sue for libel if you were extremely rich or (perversely) extremely poor and with nothing to lose. By contrast, most people who could claim are ordinary punters who can’t afford to take on media corporations. There’s a basic issue of unequal distribution of resources. (That’s why the trend of suing individuals instead of – rather than in addition to – the publisher is worrying. The publisher – in the Singh case, that would have been the Guardian – is usually the party that can afford to fight a case.) Short of very serious changes in the order of society, unequal distribution of resources for civil litigation is not something that can be got rid of. At most you can ameliorate it by looking again at legal aid and the fees regime, which is what Jack Straw has been talking about lately.
The second issue is the burden of proof. As is well known, the law of libel is heavily weighted in favour of the plaintiff. All the plaintiff has to do is demonstrate that the words were said by the defendant, that they referred to the plaintiff and that they were defamatory. Then the burden of proof shifts to the defendant, who will probably go for an out-of-court settlement (which is what happens in about 95% of libel cases) but, assuming it goes to court, has various defences he can rely on. These include the defence that the words spoken do not have the defamatory meaning complained of; the defence of fair comment, which is the operative one in BCA v. Singh; and the defence of justification, where you admit that the words were defamatory but justify this on the grounds that they were true (as in Irving v. Penguin Books Ltd and Lipstadt). This is just by way of a very simple overview.
So, this is the system that has grown up over centuries. If you want to change that, in terms of shifting the burden of proof or making it harder to issue a writ, then other things have to follow to balance that out. It might mean an enormously beefed-up right of reply – that is, with genuine balance, not a tiny apology tucked away on page 28 in respect of an outrageous lie that appeared on the front page. This raises the possibility of some media outlets having to give over quite substantial space to rights of reply.
And so we come back to the question of the Common Good, and the question of whether a debate framed in terms of “making it easier for the media” actually serves that. The preferred narrative on libel reform is that there are all these conscientious investigative journalists with thousands of Trafigura-type exposés all ready to go, but for the onerous libel laws. It’s a narrative that’s flattering to journos’ self-image, and it’s not entirely wrong, but nor is it entirely right.
Because, as well as the many good and conscientious journalists (and ingenious ones can find ways around injunctions), there are also plenty of dishonest and lazy journalists who either can’t be bothered to check their facts or just don’t care. (I can think immediately of three or four noisy enthusiasts for libel reform with very extensive records of telling porky pies in print. You would almost think they had a vested interest in gutting the libel laws.) And there are unscrupulous media corporations who don’t care about the truth as long as the bottom line is healthy. You might think, for example, of those papers that went around insinuating that Kate and Gerry McCann had murdered their daughter – they had to pay out substantial libel damages, but they also got a circulation boost that probably left them ahead of the game. Given that the media not infrequently makes shit up – and that ordinary punters monstered by the tabloids can have their lives ruined – and the vast success of the PCC as a regulatory body… well, I suggest thinking very hard before changing the law so that journalists have even less of an incentive to check their facts, or media corporations an even more consequence-free environment.
I have no firm proposals on this, as it happens. I just throw these issues out for discussion. But a good result yesterday at the Court of Appeal, and good luck to Dave with his own situation. And further thoughts along these lines from Gavin Phillipson.