Taking the fight to the judges (Part 2)

One of the most encouraging features of this debate is the formation of an alliance of writers, journalists, bloggers, pressure groups and MPs, which is determined to loosen censorship.
Joanne Cash, who has the ear of the Conservative leadership, proposes
a defence, like the Sullivan defence in the US, allowing the press to write about public figures; that the Reyolds defence should be widened, because it is being too narrowly interpreted in the courts today; that the artificial extension of the period a litigant can sue for content on a website (a year from when the last date is available on the site) should be limited; and that there should be increased protection for sources.

The legal blogger Jack of Kent, who cannot be named for professional reasons, but has been a huge help to me and many others on my side of the argument, has his own reform programme here

Jack’s suggested reform is technical but far reaching

As he says libel law is both famous and infamous for its “reverse standard of proof”.

But it does not need to be this way. There is no reason for the tort to have such a legal structure. For example, a claim for negligence has to show that (a) there was a duty of care, (b) which was breached, and (c) which caused loss. Closer to home, the (under-used) tort of “malicious falsehood” requires the claim to show both malice and falsity.

In libel, therefore, there is no good reason why it could not be reformed so that it falls to the claimant to show not only that reputation is damaged, but also that the statement at issue is false or unfair. From a technical point of view, the effect of such a reform would be neutral – the same things would have to be shown for a claim to ultimately succeed – but in practical terms the change would be profound.

At a stroke, in my view, many of the abuses of English libel law would disappear.

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2 thoughts on “Taking the fight to the judges (Part 2)

  1. The one part of this which leaves me uncomfortable is the issue of self-harm by UK media.
    The Sullivan defence works in the US because the vast majority of media outlets (not all, of course) take issues of sourcing, checking and accuracy desperately seriously (and people get fired or resign when they fall short). Here the media couldn’t give one about accuracy, and when complaints are made to editors outside the courts the complainant basically gets the middle digit.
    Seriously, give the News of the World the same legal protection as The New York Times and wait to see what happens.

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