We Can Have a Free Press and Justice Too

The real threat to liberty is not Leveson but the Coalition’s own Defamation Bill—yet it is not too late to make a sensible amendment

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Pedalling all the way to the bank: Lance Armstrong sued the Sunday Times for (correctly) alleging he cheated. He was awarded £600,000 

Had you believed what you read in the newspapers at the time of the Leveson Report, you would think that the British press had enjoyed untrammelled freedom for centuries, a freedom that would be in danger if it had to correct its mistakes and inaccuracies at the behest of a regulator with statutory powers. In truth, our communications were regulated by statute even before the invention of printing-by a medieval law which condemned eavesdroppers and gossips to the ducking stool, and in 1275 by a statute punishing “Scandalatum Magnatum”, the making of allegations that discomfited “the great men of the realm”. Today, dozens of statutes fetter the press in what they can report: Leveson’s proposal is different only in that it would require them to report more (an adjudication on their errors, for example) rather than less. And while the furore over the Report occupied the headlines until the Royal baby, no newspaper bothered to notice the statute which Parliament is currently passing that really will curtail their freedom: the Defamation Bill. It is a Bill that does nothing to rein in the law that makes London, as the Americans put it, “a town named Sue”, and that virtually abolishes jury trial, long regarded as the practical guarantor of free speech.

Newspaper editors may ignore or circumvent ethical rules, but they cannot get around the law of libel. It costs them not so much in damages, which are capped at about £250,000, but in legal fees which are astronomical (a recent study found that London is more than 100 times more expensive than other European capitals for defending defamation cases). It is the main reason why speech in this country is “chilled”-by the fear of litigation, and by newsroom obeisance to the night-lawyer’s credo, “If in doubt, take it out”. Hence, there was no way to publish any of those reasonable suspicions about Jimmy Savile and Cyril Smith, which could only surface after their deaths. And even when the evidence is compelling, miscarriages of justice are commonsuch as the success of lying cyclist Lance Armstrong, who took the Sunday Times to the cleaners for hinting at the truth. My favourite plaintiff remains the late John Profumo, who won libel damages and grovelling apologies from two Italian magazines for daring to suggest he had slept with Christine Keeler, just two weeks before he confessed to Parliament.

Why does the law of libel operate to suppress so much information and credible speculation? The main reason is because of the rule, unique to defamation, that the burden of proving the truth of an impugned statement rests on the media defendant. This is the result of an absurd “presumption” made by the courts that every defamatory statement is falseabsurd, because many defamatory (i.e. seriously critical) statements are true, in whole or part. The practical consequence of this legal irrationality is that newspapers have the burden of proving truth, not merely to the civil standard (“more likely than not”) but to a higher standard when they allege criminal conduct. Thus no media outlet could allow any hint of Jimmy Savile’s abusive sexual propensities to be published while he was alive, and the Sunday Times is reported to have paid £600,000 in legal costs because it could not prove to the requisite high standard that Lance Armstrong had ever used drugs.

This is the main reason why English libel law is recognised throughout the world as “claimant friendly”i.e. biased against the pressto such an extent that libel judgments are the only English orders that US courts refuse to enforce, because they conflict with the free speech principles of the First Amendment. Newspapers cannot prove truth when witnesses disappear or get cold feet, or sources promised anonymity refuse to come forward. As Gatley (the libel bible) concedes, “The present rule inhibits the ability of the media to expose what they believe to be matters of pubic concern.”

The Defamation Bill, whose sponsorsparticularly the Liberal Democratspretend it will work wonders (“our Coalition Bill will let the press be free”-Nick Clegg) does absolutely nothing to shift the burden of proof back to where it belongs. According to an “explanatory note” by the Ministry of Justice, this was because of sympathy for the claimant: “proving a negative is always difficult”. But proving a negative in court is actually not difficult at all: the claimant merely has to go into the witness box and aver that the newspaper published a damaging falsehood. If he survives cross-examination and minimises any evidence the defence can muster, then on the balance of probabilities, he proves the libel false. In all other civil actions, claimants bear this burden of proofwhich is logical and fair, since they are the ones who are using the legal process to drag others into court in an effort to win damages. The only reform to defamation that will make any difference to investigative journalism is reversing the burden of proof. London will remain, under the Defamation Act (2013), the libel capital of the world.

Another sensible and moderate reform, pioneered in Australia, of abolishing the unnecessary, but threatening, right of large companies to sue for libel, has been rejected by the government. Libel damages provide vindication for personal hurt, but corporations (as distinct from their executives) have no feelings and do not sensibly deserve damages. As for the public interest defence to libel cases, recently and gingerly pioneered by the judges, the Bill does no more than parrot the position they have reached, which remains unsatisfactory: newspapers must prove “responsible journalism” but by reference to nine stumbling blocks which make the defence difficult. Now, these handicaps for the media will be enshrined in a statute. Illogically, the statutory defence of “responsible journalism” gives no incentive for editors to act responsibly after publication, by correcting their mistakes. 

Far from enhancing freedom of speech, the new Defamation Bill will constrict it, by removing the right to trial by jury “unless the court orders otherwise”which the court will very rarely do. So goodbye to our glorious history of juries who acquitted “Freeborn John” Lilburne, and the Quakers, Penn and Mead, for disrespectful writing and speeches; to Fox’s Libel Act, protecting radicals from judges biased in favour of government; to A.V. Dicey’s aphorism about a “jury of shopkeepers” providing more protection to the press in England than any law of Napoleon. There are still cases where a jury might find a spirit of liberty in journalism that is undetectable to a literal-minded lawyer. The Defamation Bill ensures that public-spirited journalism will no longer be judged by the public.

There are a few good things in the Billa tighter definition of defamation and slightly more procedural protection for US papers sued in London. But by and large it does no more than encapsulate in statute the existing, and defective, common law. It could have been worse: Labour almost pushed through an amendment which would have allowed relatives to sue for defamation of the deceased. The right to speak ill of the dead is justified in the interests of historians, and by the practical difficulties of subjecting deceased persons to cross-examination. This amendment would have given the BBC a sure-fire excuse for dropping its programme on Jimmy Savile.

What has been astonishing is the faux-polite way in which the Defamation Bill and the Leveson Report circle around each other, avoiding contact. Leveson is about irresponsible press behaviour, and defamation is about irresponsible press behaviour that damages reputations, so there is a considerable overlap. Labour (and seemingly the Lib Dems) demand Leveson’s enactment in full, which would require a special statute that could not complete its parliamentary passage until 2015, or become law until 2016leaving its proponents “hacked off” for another three years. Meanwhile, the Defamation Bill is going through its committee stages in the Lords, and there is still time for amendment before it becomes law by summer 2013. Might a touch of Leveson actually improve it for the pressand the public?

Leveson, uncontroversially, found the Press Complaints Commission (PCC) unfit for purpose. But instead of devising a different model, his recommendation was for yet another quango of the reasonably great and moderately good, without press representatives (so it would be completely independent of the industry) but with statutory backing, which would ensure it had teeth for biting rather than gnashing (up to £1 million in finesthis is not “light touch” regulation). This estimable body, with a resplendent chairperson, would adjudicate complaints over breach of the code of conduct, and provide a mediation service for potential defamation claims. But the press, with prime ministerial support, will go to almost any lengths to avoid any kind of statutory “underpinning”. They want newspapers bound by contract rather than statute, submitting to fines of up to £1 million and publishing adjudications on their ethics imposed by a lay body chaired by the likes of an ex-chief justice.

The mistake that is made in these models is that they pivot upon decisions about journalistic ethics and accuracy made by worthies who may have no background in journalism, or ability at fact-finding. They will be part-time, taking decisions on arguments presented by modestly-paid staff, rather than after hearing evidence or making their own investigations. In so far as any form of regulation “works”, it has been best attemptedin several countriesby a hands-on press ombudsman. This person is usually a distinguished lawyer or journalist (or both) who runs a full-time office giving most media victims what they wanta quick and efficient declaration of demonstrable inaccuracy, a right of reply to personal vilification, and a mediation service to which libel plaintiffs must resort before they can take their case to court. There are no “million pound fines”these would probably be struck down by the European Court of Human Rights as disproportionate—but the ombudsman model offers a speedy remedy for untruths or mistakes and an effective alternative to strung-out and costly libel actions.

The simplest solution-and the one that would appear most advantageous for press and public alike-would be to slip into the Defamation Bill a provision for an ombudsman, who would have two functions. Every defamation action would be referred to the office to attempt mediation, and the ombudsman could, if the partries agreed, arbitrate the dispute, with compensation capped at, say, £20,000. A newspaper could always refuse and take its chance in the libel courts, but lengthy and bitter actions would become much less common. Secondly, the ombudsman would be empowered to receive complaints about inaccuracies (many, if not most, inaccuracies are not libellous), to fact-find and to issue decisions, which an erring newspaper would be bound to carry with directed prominence. The error would be exposed in a short and publishable decision. There would be no directed apologieshere, Leveson went wrong in principle, because sincere apologies must by definition be voluntary. (As Richard Ingrams replied, when asked if Private Eye had ever knowingly published falsehoods, “Yes, the apologies.”) The ombudsman, as a statutory office, would be paid for by the government. I would also entertain complaints about serious falsehoods on credible websites like Wikileaks, which would not be bound in any way to participate, or to publish the ombudsman’s finding. But they would be foolish to ignore it, as the blogosphere would not.

Newspapers could then get on with establishing their Voluntary Standards Regulator, which would confine itself to ethical lapses and empower itself through contracts with major newspapers. It would react to systemic failures in the industry, and could valuably provide ethics training courses for journalists. Its reports and adjudications on standards might be published by contractual direction, but newspapers should be fully entitled to dispute them. The press must be careful of what it pretends to wish for: the problem with self-regulation is that it produces self-censorship.

“What would legislation achieve?” asks Leveson, to which rhetorical question he replies, “First, it would enshrine for the first time a legal duty on the government to protect the freedom of the press.” Commentators initially thought that this might mean a First Amendmentfree speech about public figures “absent of malice” (i.e. absent indifference to truth). Alas, this will never be vouchsafed. “Free speech” in Britain, as the Privy Council once pointed out, comes with contextual baggage: “Free speech does not mean free speech: it means speech hedged in by all the laws against defamation and so forth. It means freedom governed by law . . .”

So round we go in circles, afraid to adopt the American full-blooded commitment to free speech, deluding ourselves that it will somehow be enhanced by a Defamation Bill that abolishes trial by jury, and incapable of making a sensible amendment that would relieve the press of most libel actions and provide victims of inaccuracy with a cheap and speedy remedy. It would not really matter to the freedom of the press if newspapers were bound to publish corrections when they are proved beyond doubt to have falsely stated facts. The best remedy for an abuse of free speech is to have more speech.