Freedom Of Speech Triumphant

The Lord Chancellor and Secretary of State for Justice, better known to you and me as Ken Clarke, published in March the long awaited draft Defamation Bill, for consultation until June 2011. Duncan Lamont looks at the Bill and what lies behind its new provisions.

To many lawyers, and other users of the Courts, the law of libel gets much more attention in Parliament and in the media than it deserves. Many areas of the law could do with some updating but do not get a look in because of the hyped up outrage (from the USA not just the Daily Mail) about libel tourism even though the number of cases is actually tiny. Parliament's time is spent on the squeaky wheel of defamation rather than more important areas such as copyright or legal costs.

The draft Bill, if it becomes law, will do little to protect tabloids more but will actually be very helpful in assisting investigative journalists in their work in publishing stories that are genuinely in the public interest, particularly if there is an element of political, academic or scientific debate involved. So the new Bill is welcome.

The Bill restricts itself to proposed amendments to the law of defamation, but there is an element here of the horse having bolted leaving the cart behind. There are hardly any defamation cases nowadays, with almost none going before a jury (and it is proposed that jury trial will be effectively abolished) as claimant media lawyers focus on the new law of privacy which, like the old law of libel, is flexible and common law based and untouched by Parliament! We know from the recent HIJ case and XJA case, and with others in the pipeline, that the High Court and Court of Appeal are trying to bring order in to the law of privacy but there remains much to litigate over. And numerous law firms (including this one) have become involved in the claims and potential claims arising out of the alleged phone hacking by journalists in the last decade. So the real media law action is elsewhere.

But by and large the proposed reforms are to be welcomed by the media although new legislation tends to mean new test cases rather than less damage to stretched legal budgets...

The main proposals:-

Substantial harm In a series of cases involving allegations of terrorism (in its loosest sense) and bad tennis playing the courts had already put into place a wall against frivolous claims – a "threshold of seriousness" but this is to be given statutory form in a new requirement that a statement...