Contracting Out of Libel Restrictions…House of Lords passes watered down bill that still includes many welcome reforms to UK libel law

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See article from guardian.co.uk

Laws that led to London being dubbed the libel capital of the world will be reformed after peers in the Lords voted to pass the defamation bill, ending a three-year campaign led by Liberal Democrat peers Lord McNally and Lord Lester. Libel reform campaigners said they were delighted overall that defamation reform was finally passing into law, although they were disappointed by the failure of a bid to bar private companies contracted to run schools, prisons or healthcare from suing ordinary citizens who criticised the work they do for the taxpayer. In the end it was the Lib Dems and Tories that did the dirty and killed some of the valuable reforms. However, the bill is a landmark piece of legislation and should provide more protection for individuals and organisations, including newspapers and broadcasters, which criticise big companies. The new law will also stop cases being taken in London against journalists, academics or individuals who live outside the country, denting the libel tourism industry, but not ending it altogether, as foreigners will still be able to lodge claims in the high court. The bill will now return to the Commons on Wednesday for formal approval with no possibility of fresh amendments. Kirsty Hughes, chief executive of Index on Censorship said she was delighted that corporations will now have to prove financial loss before they sue for libel but added it was a pity the government voted against Labour’s amendment to stop public money being used to stop citizen critics .

Government chooses business interests over citizens…How can it be right that companies delivering public services can’t be criticised by citizens?

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See article from libelreform.org

At a debate in the House of Commons on Tuesday 16 April 2013 the Government rejected attempts to reform the libel laws to limit companies’ ability to use sue individuals. The reform would have asked companies to show they had been harmed before they would be allowed to take it case. It would also have put the Derbyshire principle, which prevents public bodies from suing individuals for libel into law, and would have extended this principle to private companies performing public functions. Labour pushed the Government on this clause and forced a vote which the Government won 298 to 230. But Minister for Justice Helen Grant MP said the Government would “actively consider” amendments to the Defamation Bill that would require corporations to show financial loss before they can sue for libel, following pressure from Shadow Minister for Justice Sadiq Khan MP. The Defamation Bill will be debated in the House of Lords on Tuesday 23 April. Tracey Brown, Sense About Science: We are pleased that so many MPs recognise the need for corporations to show actual financial harm and grateful to the MPs who worked for this. While it is deeply disappointing that the corporations’ clause has been removed, their efforts have at least led the Government to concede that this should be revisited in the Lords. It cannot be right that the court is not asked to consider whether companies have faced loss, or are likely to, before a case can go ahead. It cannot be right that citizens can’t criticise delivery of public services whether by private companies or by the Government. Kirsty Hughes, Chief Executive, Index on Censorship: It is a very unwelcome blot on an important bill that the Government voted to allow corporations to continue to pressurise and sue in ways that chill free speech Jo Glanville, Director, English PEN : The Government needs to do more than “actively consider” amendments.  Ministers in the House of Lords should now table an early amendment, requiring corporations to show financial loss before they sue.  We’re depending on the Lords now to deliver the reform that all the parties signed up to. It’s essential that companies are no longer allowed to exploit libel law to bully whistleblowers into silence. This has always been a key demand for the campaign. Simon Singh, defendant in British Chiropractic Association v Singh: The majority of the cases that galvanized public support for libel reform involved corporations, so the final Defamation Bill must include a clause that limits the powers for corporations to bully their critics into silence. The proposal on the table is reasonable, modest and fair. Ignoring this proposal on corporations would leave the door open to further abuses of libel law by those who want to block the public’s access to information concerning everything from consumer issues to medical treatments.

Hoping for Free Speech in the UK…The Queen’s Speech heralds a law to protect freedom of speech and reform the law of defamation

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See article from libelreform.org

As announced in the Queen’s Speech, the Government will introduce a law to protect freedom of speech and reform the law of defamation.The libel reform campaign, nearly 100 organisations and 60,000 supporters including leading names from science, the arts and public life have been calling for legislation to reform the libel laws since December 2009. Congratulations to all on this momentous stage. Now we need to see the details of the Bill and will work to ensure the reforms will do away with unwarranted chilling, bullying effects of the current laws. Over the coming months, the Libel Reform Campaign will continue to fight for: a public interest defence so people can defend themselves unless the claimant can show they have been malicious or reckless. a strong test of harm that strikes out claims unless the claimant can demonstrate serious and substantial harm and they have a real prospect of vindication. a restriction on corporations’ ability to use the libel laws to silence criticism. provisions for online hosts and intermediaries, who are not authors nor traditional publishers. …Read comments from supporters

Unacceptably High Costs for Defending Libel Cases…Parliamentary committee finds that libel reforms don’t go far enough

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See article from dailymail.co.uk

Reforms to England’s libel laws will not do enough to protect free speech. A powerful parliamentary committee believes further steps are needed to prevent big corporations using their financial muscle to gag opponents by threatening legal action. It also wants extra measures to protect scientists and academics who are publishing legitimate research, and to prevent trivial claims ever reaching court. The committee has been scrutinising the Coalition’s proposals to end the international embarrassment that sees rich and powerful foreigners flocking to our courts to silence critics. The report from the joint committee on the draft Defamation Bill says many of the Government’s proposals, particularly a move to end trial by jury except in the most serious cases, are worthwhile. But it says the plans are modest and do not address the key problem in defamation law, the unacceptably high costs associated with defending cases. Recommendation that websites be held responsible for anonymous comments See article from bbc.co.uk Websites should have protection from defamation cases if they act quickly to remove anonymous postings which prompt a complaint, a report says. A joint parliamentary committee tasked with examining libel reform says it wants a cultural shift so that posts under pseudonyms are not considered true, reliable or trustworthy, But it says websites which identify authors and publish complaints alongside comments should get legal protection. The committee proposes a new notice and takedown procedure for defamatory online comments – aimed at providing a quick remedy for those who are defamed and to give websites which use the procedure more legal protection. It recommends that where complaints are made about comments from identified authors – the website should promptly publish a notice of the complaint alongside it. The complainant can then apply to a court for a takedown order – which if granted, should result in the comment being removed, if the website is to avoid the risk of a defamation claim. But where potentially defamatory comments are anonymous, the website should immediately remove them on receipt of a complaint, unless the author agrees to identify themselves, the report says. The author of the comment can then be sued for defamation but if a website refuses to take down an anonymous remark it should be treated as its publisher and face the risk of libel proceedings. The report also says a website could apply to a court for a leave-up order, if it (is rich enough and) considers the anonymous comment to be on a matter of significant public interest. But Mumsnet, a parenting website, says many of its members rely on the ability to ask questions or post comments anonymously. Many of the women posting messages do so under a user name, rather than their real name – and the site is worried the proposal will mean more people demanding messages be taken down. Its co-founder, Justine Roberts, said while it was right to stop people from assassinating the character of others from behind the cloak of anonymity the report did not recognise how useful anonymous postings were in allowing people to speak honestly about difficult real-life situations. The recommendations could have a chilling effect on sites like Mumsnet where many thousands of people use anonymity to confidentially seek and give advice about sensitive real-life situations. Under the current law, websites are liable for defamatory statements made by their users. If they fail to take down a post when they receive a complaint, they risk being treated as the primary publisher of the statement. So how is a website to know if users correctly identify themselves anyway?

Libel Arbitration…Government considers the Press Complaints Commission for a first stage arbitration step before libel cases can go to court

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See article from dailymail.co.uk

Ken Clarke’s Justice Department is considering sending rich and famous claimants to the Press Complaints Commission for arbitration before they are allowed to take their case to court. Ministers say the system would be cheaper and quicker, and hope it could deter foreigners from flocking to our courts in so-called libel tourism. At a meeting of a Parliamentary Committee investigating changes to defamation laws, Justice Minister Lord McNally told MPs that he was tempted to make complainants go to the PCC first: I do think that a credible Press Complaints Commission — one that had general respect and could deliver non-legal fast justice in areas where people complained of press abuse — is preferable to the law. If complainants want a rapid correction then mediation does offer a cheap and speedy way of addressing that. Clarke said that the PCC would have to beef itself up to be able to take on the role, and would have to do more to ensure it had the confidence of the public.

First Impressions…Government publish draft Defamation Bill and consultation details

Read more UK Government Censorship News at MelonFarmers.co.uk

Based on article from libelreform.org See draft bill and consultation paper [pdf] from justice.gov.uk

The Government has now published its promised draft Defamation Bill. We have had an initial look and weighed it up against the blueprint for reform we launched last week. We welcome where the draft bill contains some of the reforms we set out, including: A more effective and clearer defence of truth (justification) A clearer and wider defence of honest opinion (fair comment) The extension of statutory qualified privilege to benefit NGOs and scientific conferences A single publication rule with a one year cut off But it comes up short in a few important places: The suggested public interest defence needs more work to properly protect citizen critics There is no commitment to counter the censorship of online discussions by web-hosts and internet service providers who are liable for content they publish There is no commitment to restrict corporations’ ability to sue in libel These measures are going to be open for consultation over the next few months. Offsite: We will end the libel farce See article from guardian.co.uk by Nick Clegg Shameful libel laws kill debate and smother scientific inquiry. Our coalition bill will let the press be free We live in an information age, with knowledge flowing in unprecedented ways. Recent weeks have been dramatic proof of that. Twitter helped oust Hosni Mubarak. Thanks to global, 24-hour news reporting, Muammar Gaddafi’s actions cannot be hidden. Global citizens watch in real time as events unfold in Japan. In such an age ideas are everything and openness reigns supreme. Power rests, increasingly, on winning the argument, and censorship has no place. …Read the full article

Defending Honest Opinion…Government set to publish a draft Defamation Bill

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See article from independent.co.uk

Libel tourists no longer welcome in my court! Major changes to Britain’s antiquated defamation laws will be outlined by ministers with the publication of a bill to provide greater protection for free speech and an end to libel tourism. The draft Defamation Bill will propose a new defence of honest opinion, which will protect academics from being sued by companies and special-interest groups for damaging their reputations. There is currently a defence of fair comment, but it has to be based on stated and true facts and rarely succeeds. There will also be new rules to stop celebrities and businessmen from bringing libel cases in Britain unless they can prove that the publication caused them substantial harm in the country. Foreign litigants will have to sue in the country where most of the damage to their reputations was done, rather than using the English courts on the basis that the publication was available in Britain. Under the new rules, it will be up to a judge to decide whether substantial harm has been caused to reputation in this country. It is expected that if the main damage was done outside this country, UK courts will not accept jurisdiction.

Honest Comment…’Fair Comment’ law examined in the UK Supreme Court

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Based on article from supremecourt.gov.uk

This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated. The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies. The appellants provide entertainment booking services. The Gillettes appointed the booking agency to promote their acts, entering into a contract which included a re-engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants. The booking agency arranged a booking for the Gillettes at Bibis restaurant in Leeds. The Gillettes agreed to perform again at Bibis three weeks later without reference to the agency. The agency emailed the band to complain of the breach of the re-engagement clause. A band member replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other Gillettes were not bound by the re-engagement clause as they had not signed the contract. The booking agency thereafter posted a notice on their website announcing that they were no longer representing the Gillettes as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of “contracts hold no water in legal terms”. For this reason it may follow that the artists obligations for your booking may also not be met….’ The Gillettes issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform. The booking agency relied principally on the defences of justification and fair comment. Both were struck out in the High Court. The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment. Judgement The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the agency. A ‘fair comment’ must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded However this defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest. Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment. The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case. The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re-naming of the defence from fair comment to honest comment. Applying the law to the facts of this case, the posting by the booking agency referred to the breach of contract relating to the Bibis restaurant, and to the Gillettes’ email, and these facts could be relied on. The email arguably evidenced a contemptuous approach to the Gillettes’ contractual obligations to the agency. The email as quoted arguably evidenced a contemptuous attitude to contracts in general. It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference. The defence should therefore be reinstated.

An Open Letter to David Cameron…Calling for urgent reforms to UK libel law

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Based on article from libelreform.org

Dear Prime Minister We are writing to ask that you introduce urgent reforms in the Government’s proposed draft Defamation Bill to protect open discussion on the internet. The English law of defamation is having a disproportionate, chilling effect on online writers, e-communities and web hosts: The libel laws have not been updated to address the rise of online publication. The current multiple publication rule, dating back to 1849, defines every download as a publication and a potential new cause of action. Internet service providers can be held liable for comments they host and therefore are inclined to take down material or websites even before the writer or publisher has been made aware of a complaint. Such intermediaries usually have no access to the background or relevant facts and should not be expected to play judge and jury in determining whether a writer’s material is defamatory or not. This is a decision that can and should only be made by the direct parties involved. Online blogs and forums are available around the world and there appear, in practice, to be few restrictions on material published substantially on matters and concerning parties and reputations elsewhere being the subject of legal action in English courts. The Internet is used for publication by millions of ordinary citizens for whom the current defences to an action for defamation have not been developed. We ask that the Government’s draft Bill provide the following protection for discussion on the Internet: ISPs and forum hosts – intermediaries – should not be forced to take down material without a determination by a court or competent authority that the content is defamatory. The claimant should in the first instance approach the author rather than an uninvolved intermediary. There should be a single publication rule and a limitation period of one year from original publication. Claimants in libel law should demonstrate that there has been a substantial tort in the jurisdiction in which they bring proceedings. There should be a public interest defence in cases where the material is on a matter of public interest and the author has acted in accordance with expectations of the medium or forum. Signed Richard Allan, Director of Policy EU, Facebook Emma Ascroft, Director, Public & Social Policy, Yahoo! UK & Ireland Lisa Fitzgerald, Senior Counsel, AOL (UK) Limited Nicholas Lansman, Secretary-General, Internet Service Providers’ Association (ISPA), which represents providers of Internet services in the UK and has over 200 members representing 95 per cent of the access market. Justine Roberts, CEO, Mumsnet

Bloggers and Libel Law…So you’ve had a threatening letter. What can you do?

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Based on article from senseaboutscience.org.uk See So you’ve had a threatening letter. What can you do? [pdf] from senseaboutscience.org.uk

A new guide to the libel laws for bloggers has just been published. The guide, entitled So you’ve had a threatening letter. What can you do?, is published by Sense About Science in association with Index on Censorship, English PEN, the Media Legal Defence Initiative, the Association of British Science Writers and the World Federation of Science Journalists. To coincide with the guide’s publication, Sense About Science is making available a summary of the effects of the English libel laws on bloggers, drawn from cases that have come to attention since the start of the Libel Reform Campaign and from the recent survey of bloggers. The summary identifies the particular ways in which online forums are affected by the current laws, notably: the individual and non-professional character of much online writing, and therefore the more pronounced inequality of arms, particularly where people are writing about companies, institutions and products; related to the above, the relative lack of familiarity with libel law and access to advice about handling complaints; the liability of ISPs, leading to material being removed without consultation with authors; and the vulnerability to legal action arising from the international availability of Internet material, and it being possible to republish old material by downloading it. Reform of English libel law has been promised, and if campaigners are successful, then changes that will give better defences to online publishers and writers may come into force in 2012. This leaflet is certainly not a substitute for legal advice, but it does provide information which other bloggers and writers who have experienced libel threats say they wished they had known at the outset.