England’s libel law is supposed to protect reputations. But its own good name is taking a terrible battering. Already under attack from British campaigners who argue that it unduly suppresses free speech, it took a blow in the US last week. The House of Representatives passed a bill declaring English libel judgments to be unenforceable in the US courts.
True, this was largely theatrical as, in practice, libel litigants could not generally enforce judgments in the US. Nonetheless, it marked a new humiliation for libel to have a statute passed specifically to hammer home its incompatibility with free speech.
The House has a point. The balance in libel law is tilted too far against the defendant, encouraging litigants to use it to gag unwelcome voices. But that is only one of several problems. Libel actions drag on too long and are excessively expensive, making defendants reluctant to contest them. And there is too muchjurisdiction shopping, partly because the internet has blurred geography. A judicial free-for-all is in danger of developing, encouraging litigants to descend from around the world.
Some of these are easier to deal with. It is not beyond the wit of man to reduce the expense of contesting libel cases. One simple way would be to reduce the length and number of so-called interlocutory hearings – Dickensian exchanges that can drag on for months. Procedure can be changed to limit jurisdiction-shopping.
The question of balance is harder. The US system effectively denies recourse to libel unless malicious intent can be proved. That is certainly appealing in that it would stop, say, companies using libel law to silence critics.
But it would not be enough simply to relax press restrictions. Changes to libel law cannot be made without regard to privacy, where the media’s right to investigate must be balanced with the right of people not to be subjected to invasive gossip.
Moreover, a more permissive libel law requires a responsible media. The aim must be to establish an effective, quick and fast system of redress short of full libel proceedings. The Press Complaints Commission does not have sufficient teeth. One option might be a specialist libel tribunal outside the courts system. This could respond expeditiously and more cheaply to privacy infringements.
The Con-Lib coalition has promised to look at libel law – and not before time. It neither works well nor enjoys widespread confidence. It should change.