The right of free speech is a central democratic principle. But so too is the right of individuals to be protected against libel and defamation of character. The job of the legislature and judiciary is to balance those conflicting freedoms. In England, that balance has become skewed: libel law gives robust protection to reputation, but it increasingly does so at the expense of freedom of speech.
The Government is aware of the problem. Nick Clegg has indicated that the coalition will review the libel laws. It is fortunate, then, that on Thursday a Private Member’s Bill will be published that offers an ideal model for reform. Lord Lester of Herne Hill will bring a Defamation Bill before the House of Lords that aims to modernise and simplify the law in several respects. It would bring up to date the defences available for those being sued for libel. It would require claimants to show real harm before they could sue. It would demand that corporate claimants must prove actual damage. And it would make the normal mode of trial one of a judge sitting alone, rather than a jury.
Lord Lester’s Bill also contains measures to cope with the advent of the internet. At the moment, foreign claimants are pursuing cases in the UK courts based on the fact that articles published on the world wide web can be downloaded here. Every time an article is downloaded, it constitutes a new publication, which resets the one-year limitation period for libel actions, a law that dates from 1849, when the Duke of Brunswick made law by sending his valet to obtain a 17-year-old back copy of the Weekly Dispatch to sue for defamation.
This is not a Bill to promote irresponsible journalism, or to placate newspapers whingeing about libel. It seeks to restore the right balance between those who pursue public interest reporting and those who seek to defend themselves from malicious attacks. If nothing is done the result will be increasing self-censorship, because of the uncertainty over what constitutes fair comment and because of the size of damages that can be awarded, which Lord Lester’s Bill seeks to limit.