The draft Defamation Bill being published this week is the culmination of months of lobbying by those concerned about the libel laws In England and Wales.
It aims to review the laws on libel and slander by which legal cases are fought over the right to protect a reputation against the right to publish. The Bill is expected to look at the way in which cases can be defended by publishers and examine whether cases are properly brought.
Among other matters, it is likely to tackle the defence of public interest in reporting, the effect of the internet on libel claims and whether trial by jury will be the default position. It will not directly address costs of litigation, one of the most prohibitive factors for both sides in a libel claim.
The concerns over so-called libel tourism and the embarrassment of the United States courts rejecting judgments from England - resulting in MPs hot-footing it to the Big Apple to see how friends of the First Amendment do their business - together with the hitherto unheard of voice of campaigning or non-governmental groups such as Index on Censorship, English Pen and Sense about Science, created huge momentum.
And then came the carefully drafted Private Member’s Bill from Lord Lester of Herne Hill. There were cries from the start that no reform is needed and Lord Lester’s Bill would be buried.
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Yet here we are now. On the cusp of vindicating the country’s reputation of championing free speech. Or so a newspaper lawyer would have it. In reality, there is still much work to be done.
Those who represent claimants in libel cases say that any changes in favour of publishers and writers will jeopardise access to justice for claimants who legitimately seek to clear their name. Those in favour of change in general do not seek to vanquish those rights. What they seek is a review of the present laws to keep the law up to speed with the internet and to revisit a defendant’s rights to publish information which is in the public interest.
Since 1996 (the date of the statute on libel now in force) the way we publish and communicate information and ideas has changed beyond recognition. Yet libel law still relies on a case in which a Duke in 1849 sent a servant from Paris to England on a horse to find a 17-year-old copy of a newspaper to clear his name.
That cannot be right. One of the keys of the new Bill will be to secure a revision to what is known as the multiple publication rule, by which a claimant has a new cause of action every time an article is read online.
Public interest reporting is difficult under our present laws. Claimant lawyers regularly batter down those who are unlikely to be able to prove the truth of their stories, by the spectre of a lengthy trial of the “Reynolds” defence - a defence pioneered by this newspaper that allows a publisher to defend itself where it can show that it has been responsible and there is public interest in the subject matter.
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In reality, the case law on this is sparse, leaving all and sundry pondering on whether it will work for them.
There are few cases in which a Reynolds case has been successfully used. It isn’t right to suggest that this must be because all publishers write about tittle tattle irresponsibly. The NGOs and individuals who have spoken up in this campaign make this quite clear: medical publishers, bloggers and individuals regularly call off publishing material “in fear”. Without strong laws protecting public interest stories, investigative journalism is threatened.
The accusation that the Bill is to be one to enable well-financed media organisations to be more free to publish and be damned and to fill their coffers in the process also does not hold water.
This campaign has been marked by the very real voice of those “little people” who are affected. That this newspaper has a legal department and fights those cases that its editors believe will protect the right to publish, throws into stark relief the inability of those less well-resourced to do the same.
The Bill is an opportunity that must not be wasted in the inevitable debates which will ensue.
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The author is head of the legal department at The Times