Libel laws may not be perfect but keep your oar out all the same
Northern Ireland's libel law is an affront to freedom of expression. But the House of Lords should keep their fingers off plans to reform it, warns Mick Hume
Mention of dust-dry defamation laws might normally put reasonable readers to sleep. But it is worth waking up to the implications for free speech of the current political controversy over libel reform in Northern Ireland.
Some, such as Sammy Wilson of the DUP, apparently think existing libel laws are good enough. Reformers, led by Mike Nesbitt of the UUP, say that incorporating the changes introduced in England and Wales by the Defamation Act 2013 would guarantee free speech.
This week, members of the House of Lords tried to stick their ermined oar in, putting a proposal to extend that law to Northern Ireland on to the Westminster agenda.
As a London journalist with experience of being both defamed in the media and sued in the libel courts, here is my comprehensive guide to the complexities of defamation law:
1. Northern Ireland's existing libel law is an execrable affront to freedom of expression;
2. The proposed reforms from England would make some aspects of the law better – but render some even worse;
3. Either way, it is none of the House of Lords' business.
The Executive's refusal to adopt the new Defamation Act for England and Wales has left Northern Ireland labouring under the old libel regime. Those libel laws have long been the worst legislation on UK statute books – a prize won in the face of some pretty stiff competition. As I told the media on the steps of London's Royal Courts of Justice in 2000, after losing a libel trial – and with it the magazine I edited, LM, bankrupted by costs and damages – the old libel laws are "a disgrace to democracy and a menace to free speech", starting with the assumption that the accused is guilty until proven otherwise.
The 'chilling' effect means often the fear of legal action is enough to prevent publication. Libel law has served to protect the rich and powerful and London became the defamation capital of the world, as foreign plutocrats asked the English courts to silence their critics back home. Whatever the tribulations of the British tourist industry, 'libel tourism' has boomed.
When a law is that bad, it should not be too hard to come up with some improvements. Under the 2013 Defamation Act, claimants must now show evidence of substantial harm, rather than simply asserting it. That could scupper many bullying cases before they start.
Libel tourism should be limited by the Act's provision that a case be heard only if London is "clearly the most appropriate place" for it. The Act also means that every download of an article from the web can no longer be treated as a new defamatory publication. And it enables those sued to offer a "public interest defence" for publishing defamatory material. Little wonder that frustrated free speech lobbyists want to see these reforms extended to Northern Ireland, raising fears that unreformed defamation law could turn Belfast into the new magnet for rich libel tourists (cue lawyers sharpening their quills in anticipation).
But perhaps you should be careful what you wish for. The reforms in the new English law do not amount to a charter for freedom of expression. They accept the fundamental assumption that the courts should have the right to impose strict limits on what can be said, or written.
The Defamation Act makes matters worse by removing the presumption of a jury trial, giving even more power to the judges. This is justified on the ground of reducing costs. But there are even more important things than money.
Just like freedom of expression, the right to trial by jury rests upon the belief that 'ordinary people' are capable of weighing the evidence and deciding for themselves. The notion that m'lud-knows-best reflects, instead, a patronisingly elitist, authoritarian attitude to us 'plebs'.
This snobbish prejudice has been reflected in the UK campaign for libel reform, which emphasised the need to defend 'responsible' authors. The Defamation Act accordingly offers academics and scientists special protection from being sued if the disputed work is published in a respectable, peer-reviewed journal.
Yet, if you believe in freedom of expression, there should be no difference in the law's attitude to a 'responsible' expert and an 'irresponsible' idiot. Nobody should have to pass a respectability test to qualify for the indivisible right to freedom of speech and of the Press.
The implication of this special protection is that liberty only really matters for those who serve the 'public interest', as defined by the libel courts, of course. But to have any meaning, free speech must also extend to those the mainstream deems 'irresponsible' – be that the Italian astronomer Galileo (convicted of heresy by the Inquisition for suggesting that the Earth moves around the Sun), or the anti-Semitic French 'comedian' Dieudonne (just banned from Britain for telling offensive jokes).
The Defamation Act 2013 is not good enough. Better to update the spirit of Cato, the 18th century London writer who inspired the First Amendment that protects free speech in the US and who declared that, "I would rather many libels escape than there be any restrictions on a free Press". As for the House of Lords' shenanigans: demanding that England's Defamation Act be extended to Northern Ireland this week, one Tory peer commended it as a "liberalising, modernising law".
That is rich coming from an archaic and undemocratic institution that should have no place interfering in the laws of England and Wales, never mind extending its gnarled reach.