English libel law imposes disproportionate restrictions on free speech, according to an independent report that recommends 10 changes to the laws. The Ministry of Justice said today that it will launch a consultation on defamation and the internet. English PEN, a charity that promotes the human rights of writers and publishers, …
>Cap at £10,000
A particularly malicious lie can earn a publication may times that in extra sales...
There only really needs to be one defence: its true. If its not true or you're not sure don't publish.
Needs further work!
While some of these proposals seem eminently sensible, there are some glaring issues in these rules (better not call them idiocies in case someone takes offence)
"Require the claimant to demonstrate damage and falsity"
So I can call you a Sheep worrier and unless you prove that you have never had knowledge of a sheep, I win. How do you prove a negative?
"Cap damages at £10,000" For a national newspaper this is a pittance. They more than make that in increased sales when they carry the salacious details of some juicy story.
"Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood" Why? If you damage a corporate institution, you damage sales, and hence damage jobs. Why shouldn't they be allowed to protect their name.
Fully agree with the minimise the cost of proceedings - cap the barristers rates, and if they chose to employ a team of 20 juniors, clerks and investigators, that's their tough luck.. It's a overhead that they will just have to swallow.
How do you protect Joe Public?
Whilst the PEN report makes some good recommendations, such as strengthening the public interest defence, many of their suggestions would result in normal people caught up in a news story being completely at the mercy of the tabloid press.
Recommendation 1:Require the claimant to demonstrate damage and falsity
Recommendation 2: Cap damages at £10,000
Look at the case of Robert Murat. He lost his reputation, his business, and his life was pretty much ruined. I think he got £60k libel damages - a pittance, but better than nothing when he was trying to get back on his feet. If PEN had their way the Daily Express would have laughed all the way to the bank. He would have been required to prove that he wasn't a child killer (how?) and they could continue to make outrageous claims, safe in the knowledge that lurid headlines probably bring in more than £10k extra revenue.
Too much common sense and too little consideration for the easily hurt feelings of poor libel lawyers (no defamation intended your honour).
...if ""The courts should take the financial incentive out of libel law by capping damages at £10,000. If a claimant wishes to demand more then they would need to prove material damage such as loss of earnings."" were adopted, then the gutter press would know that they could print anything that they wanted, vilify whomsoever they wished, having even less regard to the truth than they do now, in the sure and certain knowledge that they will never have to pay more than £10,000. Fail proposal is made of fail.
This is too sensible to be accepted by the British legal system.
So if the publication can generate more than £10K profit from libeling someone why would they not do it?
If newspapers are forced to print a decent sized retraction if they lose the case, not one that sits in the bottom corner of page 5. If the original article is front page news then the retraction also has to feature on the front page.
The change to the law has to be water-tight so that Carter F*ck et al cannot stop the media from publishing the truth. We have to stop libel tourism as well.
If it means we have to pay top lawyers to find holes in the law then so be it. This has become a national embarrassment.
License to do damage?
If the damages are capped at £10,000 and I want to discredit my competitor, to the tune of many millions, surely £10k is a reasonable sum to lose?
I don't think it is a good solution
1. I agree with Cynical Observer and Catkins that this is bad. Innocence/guilt is with respect to the publication, not the content of that published.
2. I agree with a cap for damages. However I would also like to see punitive action taken against libellers depending on their ability to pay. So if a newspaper wrongly calls you a paedophile then you get £10k damages (plus any losses that can be shown) and then the newspaper gets fined some large amount as punishment. And forced to issue apologies and retractions at least as prominently as the libel*.
6. I cannot see how "public interest" could be used as defence for libel. The point of libel is that it is untrue so how could it be in the public interest to publish falsehoods? Seriously?
10. Everything does deserve a reputation.
Most of the others seem reasonable (or beyond my knowledge).
*Not like now where a newspaper will publish something libellous on the front page and then issue an apology in small type on page 28, or where TV companies issue apologies at 03:00.
While i'm never actually going to take someone to court for libel...
It strikes me that half the reason the sun et al don't publish untrue stories by the dozen is the fact that they can have crippling fines imposed on them. Capping claims at 10k might (and almost certainly would) actually encourage large corporations to just say what they want and just pay the fines. While "sorry" is nice, when the sun publishes their slanderous story as their headline piece on page 1 i'm sure they always publish the apology as publicly. Or not. I suspect apologies are buried where nobody is likely to read them.
Saying the defendant is guilty until proven innocent is actually saying that the current status quo is that the person that had the article printed about them is innocent of what is claimed until proven guilty by the person making the accusation. Sounds reasonable, why change it? If your publishing a claim about me on page 1 of the sun, I think the onus is on you to prove that I did what your claiming!
And exempting medium and large corporate bodies from libel law? Eh? Why don't they deserve to have their reputations protected? Wouldn't that leave libel law solely protecting people that can't afford to use it while simultaneously protecting the person committing the slander by reducing the penalty?
That leaves me wondering who wrote this.
"English PEN, a charity that promotes the human rights of WRITERS AND PUBLISHERS"
Ah. That explains the complete (cough, cough) independence of this article. I hope the Ministry of Justice gives this due consideration, which should be to read it before rolling their eyes and tossing it in the bin.
And i'm sure I missed a few points important points. The sad thing is that the illiterate are probably going to think this is a good idea.
In answer to the £10k limit - why not keep the limit but force the publisher to write an article/item approved by the victim that matches or exceeds the original publication in size and impact?
That would mean a full front page apology would have to be published by the tabloids in response to such an infringing article being found libellous.
Alternatively, have a criminal liability for the editor of any publication frequently found guilty of libel!
£10k is nothing to a publication
Our papers regularly print absolute bullshit in return for higher circulation - £10k is nothing.
@ Cynical observer & Catkins
I think i may have interpreted things differently to you:
Firstly, for "Require the claimant to demonstrate damage and falsity" - i took that to mean that if someone makes a claim that your a sheep worrier, its up to them to prove that you are a sheep worrier, not for you to prove your innnocence (your right you cant prove a negative!). If they then produced a photo of you being overly friendly with a sheep you would have to prove that the photo is a fake or that you really were just good friends! ;)
"Cap damages at £10,000" - The full text description of that point was "Cap damages at £10,000. If a claimant wishes to demand more then they would need to prove material damage such as loss of earnings." - if a tabloid earned excessively more then that from making the statement, i would assume you could push for a higher then £10k figure because they can be shown to be profiting from delibrately false accusations. I think perhaps they need to add that little foot note to avoid that whole problem.
& to answer Catkins, if the person you mentioned lost his business, etc. because of the accusations im pretty certain that constitutes material loss dont you?
"Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood" - i strongly agree with this point. If i buy a phone which is crap (for reasons a, b and c) and i write a review saying its crap (for reasons a, b and c), i do not want some corporate bully suing me under libel law for "damaging there reputation". If i buy the same phone and write a review saying that anyone who buys one will get cancer and turn into a paedophile, well that can be construed as malicious falsehood and then i deserve what i get. Slander of a product/service/company when you speak the truth should never be grounds for libel... And as most companies have more money then the individual making the comment, at the moment the company wins...
Anyway my two cents... i think the list is well thought out, although needs more clarification on when the £10k limit should be applied and when higher penalties should be applied for those profiting from making delibrate libelious claims...
A mixed bag
Some things I tend towards agreeing with others I vehemently oppose.
It is ridiculous to try and make the claimant prove a negative; any person can make an outrageous lie which no one can prove is not true and the defendant gets away scott free. That turns libel law on its head.
I don't believe that any damages should ever be capped but awards of damages should be to recompense for damage actually done not simply punitive nor provide the incentive to take up a case by way of a get rich scheme.
The multi-publication rule is also wrong. That leaves anyone who commits a libel free to continue publishing that same libel even when they've been found guilty of in the first instance. Allow mitigation to limit damages where a further libel was not intended by all means, but don't simply allow them to got away with it.
I'm having real trouble seeing how other commentators can see the proposals as "sensible", "common sense", or an improvement on what we have ( which can indeed be improved upon ). It reads like a libeller's charter to me.
Apology the same as the libel
I have always thought that if a paper or other publication make a false statement they should apologise using the same amount of space and position. I.e. If they ran with a large front-page article and they are wrong, they should apologise using the same font size and space. Better than a fine. The same could be applied to web sites etc..
"...why not keep the limit but force the publisher to write an article/item approved by the victim that matches or exceeds the original publication in size and impact?"
This has always seemed perfectly fair to me. Quite why it should be acceptable to bring a massive headline accusing [insert celebrity here] of [terrible crimes], followed by a minor apology, about an inch long, on page 23, is beyond me.
Take the risk of a big story, reap the rewards. Get it wrong, get publicly stuffed. Seems eminently sensible to me.
You could picture the 'News' of the World headline now: "MAX MOSELEY IS A THOROUGHLY HONOURABLE GENTLEMAN!" (which would doubtless be followed by a complaint from [insert Formula 1 team boss here!]).
Or The Daily Mail: "ARE FOREIGNERS DOING OUR COUNTRY SOME GOOD?"
I'll get my coat now.
"the sun et al don't publish untrue stories by the dozen"
I take it you're not familiar with our tabloid press?
""Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood" - i strongly agree with this point. If i buy a phone which is crap (for reasons a, b and c) and i write a review saying its crap (for reasons a, b and c), i do not want some corporate bully suing me under libel law for "damaging there reputation"."
"Slander of a product/service/company when you speak the truth should never be grounds for libel"
In the UK at least truth is an absolute defence against accusations of libel. So that last sentence of yours should read "Slander of anything when you speak the truth cannot be slander."
I agree that there is a possibility of a company trying to use libel laws in this way (in fact they already are cf: Simon Singh to name but one) however given the other proposals to simplify and reduce the costs of claiming/defending a libel action along with rules against vexatious litigation it is highly unlikely that this would really happen.
In favour, on the whole
Libel law is never going to be perfect or even close to. Yes, it would be awful to be libelled and have to prove a negative in order to get justice. But I prefer that possibility to the current situation. There's a reason for point 4 - the rich and powerful around the world know that British libel laws can be used to bludgeon their critics into silence. The truth or otherwise of said critics' claims doesn't matter next to the cost of fighting a court case which, due to our screwed-up burden of proof, the defendant is likely to lose.
I can't help thinking that there are some major newspapers behing this, it would suit most major papers to have a public interest defnece (good) but not to have to pay out more than 10k if they are found guilty (bad, because you could set out to ruin someone for a mere 10k fine.)
Is there an element of astroturf giong on here?
It's unreasonable to expect either party to provide "proof" of the truth/falsity of the reported claim. However, it should be a sufficient defence for the defendant to show that they had reasonable grounds for believing what they wrote and that they took reasonable precautions to check it.
Consider the following scenario, which has happened several times in recent history, I think: A comes to B with a story about something that C has been up to. B publishes the stories. C then gets in contact with A and persuades them (with bribery, threats, whatever) to either withdraw their claim, refuse to give evidence in court, or go into hiding. C then sues B for libel. B cannot use A in their defence because A has changed their story, won't give evidence, or can no longer be located.
It's even possible for A to have been conspiring with C before going to B.
@ lglethal - reversed burden of proof
Nope - PEN want a situation where the falsely accused have to prove their innocence.
From Page 11: "Because of the antiquated presumption of falsity, libel law requires the defendant to do all the heavy work of proving either the truth of their allegations.....[we] recommend that the claimant be required to provide evidence of falsity or unfairness when they bring a libel action.This reform would reverse the burden of proof"
We live in a country where the Editor of the Daily Mail heads the Press Complaints Commission, and tabloids feel empowered to make accusations of murder, or intimate that survivors of the Dunblane massacre are so degenerate Thomas Hamilton should have finished the job.
An ordinary member of the public has pitifully few protections against the might of the media - namely presumption of innocence and the threat of punitive damages to make the publishers hesitate - and the PEN proposals would obliterate them.
Going back to the Robert Murat example; he probably couldn't win a libel action if he had to prove he wasn't a child killer, so the £10k limit doesn't come into it. Can you imagine the mud that would be thrown at him in court? Even if he somehow managed to prevail and ask for additional damages he'd be up against the best and most expensive lawyers in the country hired by the newspaper to ensure that compensation was kept to a trifling amount.
I disagree completely and totally.
If you publish something then the onus is completely on you to be able to back up that claim. If you think your sources are unreliable then I suggest you verify the truthiness of whatever it is before publishing.
Remember that the point of libel laws is not so much as to punish the libeller as to obtain restitution for the libelled (hence it is civil and not criminal) so if you libel someone even with good intentions or in full belief that what you are publishing is true then the fact is still that the innocent party has been libelled and is entitled to restitution.
Your example completely contradicts your second sentence. In no way could the unverified say so of one person be classed as "reasonable grounds for believing what they wrote and that they took reasonable precautions to check it"
I completely agree.
" 4 across : he does not sleep with prostitutes " is hardly acceptable as an apology.
"If you publish something then the onus is completely on you to be able to back up that claim."
The claim that X did something, or the claim that Y claims that X did something? For example, is it fair that a newspaper can be sued for quoting a statement made by the police if that statement turns out to be incorrect? Shouldn't the police be held responsible in that case rather than the newspaper? But can the newspapers then evade all responsibility just be inserting the word "allegedly" everywhere?
Also, what if I see something with my own eyes and report it? Can I be successfully sued because I can't prove I saw what I saw?
No, I disagree with the quoted statement. Provided that I am being honest and not malicious there should be no onus on me to be able to prove the truth of what I say and write. Shouldn't I be able to report what I have witnessed, what I believe and what other people have said and written without fear of being sued for it?
Also, in some cases the only way to put together a convincing case for something is have a public discussion of the evidence, so it's not a good idea to make that discussion illegal until the case has been proved.
"If you publish something then the onus is completely on you to be able to back up that claim."
So if I publish something saying that astrology/crystal-healing is crap how do I prove that?
If 400 years of scientific progress isn't enough, exactly what am I supposed to do in court?
Innocent until slurred by the Tabloids...
"1) In libel, the defendant is guilty until proven innocent"
In English Law a person is presumed innocent unless guilt is proven! If a newspaper publishes a potentially libellous statement, they need to be able to back that statement up with *PROOF* (and not simply "person X told us that...")
English PEN are falsely using this principle to try to reverse the burden of proof, ie you have to show that their statement was incorrect, which is utterly ridiculous.
2) "We recommend: Cap damages at £10,000".
This makes publishing libel a simple matter of money. If you're going to make more than £10,000 from a libel through increased readership/ viewers/ advertising revenue, publish and be damned.
3) "Abolish the Duke of Brunswick rule and introduce a single publication rule"
This is sensible. Of course if an article is published on a news website etc, it would not be difficult to amend the original to withdraw the libel. Any other copies aren't down to the original publisher.
4) "No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here"
Again, also sensible. There should not be "libel tourism".
5) "Establish a libel tribunal as a low-cost forum for hearings"
6) "Strengthen the public interest defence"
Hmm. The "public interest" is not (despite how many have tried to define it) simply what the public is *interested* in (see Max Mosely for details). A Public Interest defence must show that there is material benefit to the public (eg publishing MPs expenses) or that by publishing, the public is protected from or informed about something they *should* know (see Professor Nutt for details)
7) "Expand the definition of fair comment"
Reasonable, provided, of course, that such comments are, in themselves, not libellous!
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"
By the same token, the cost of *proceeding* with a libel action is prohibitive. If Joe Public is libelled by a National Newspaper, without Legal Aid (no longer available for libel actions) his chance of actually being able to afford to get anywhere are slim.
9) "Exempt interactive online services and interactive chat from liability"
There should be "Common Carrier" protection for web forums etc making them not responsible for what is posted on their pages. If libel is proven, the statements should be taken down, but this should not be done pre-emptively with a threat of "take this down or we'll sue you too!"
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"
I can see the rationale behind this, eg the McLibel trial where McDonalds using libel laws to threaten into silence anyone who disagreed with them (and failed, spectacularly!) but it does risk setting a dangerous precedent requiring organisations to prove "malice", something which may be very hard to do...
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