here - United Kingdom Parliament

935 Libel Law
1 DECEMBER 2010
Libel Law
936
[Mr Jonathan Djanogly]
representatives of the science community. I can confirm
to my right hon. Friend that they included, as he
requested, Index on Censorship, PEN and Sense About
Science.
My right hon. Friend featured the position of the
science community very strongly in his remarks. It
would be inappropriate for me to comment on many of
the cases that he mentioned, given that proceedings are
pending. I can confirm, however, that we are very much
aware of the concerns about the harmful impact that
the current law is having on scientific debate. The case
of Simon Singh and his brave stand for his beliefs have
been widely reported, and I was pleased to hear his
position being clearly explained this evening by his MP,
the hon. Member for Slough (Fiona Mactaggart). We
want to ensure that any provisions that we introduce
will help to address those concerns and enable robust
scientific and academic debate to flourish without being
hampered by the threat of libel proceedings.
The discussions that we held were extremely helpful
in identifying areas in which concerns exist and the
possible approaches to tackling the difficulties that
arise with the current law. We have also had the benefit
of being able to consider the range of issues raised in
the private Member’s Bill on defamation that was introduced
earlier in the year by Lord Lester of Herne Hill. That
Bill was also the subject of a debate called by my hon.
Friend the Member for Maldon (Mr Whittingdale) in
Westminster Hall in July this year on behalf of the
Culture, Media and Sport Committee, which he chairs.
It is good to see him here this evening.
It is not possible for me to indicate today precisely
what provisions might be included in the Government’s
draft Bill on defamation. However, a range of issues
have been the subject of much discussion and debate
over recent months, and I can confirm that we are
giving careful consideration to them, to assess whether
it is appropriate to include provisions in the draft Bill.
They include the need for a statutory defence relating to
the public interest and responsible journalism. Concerns
have been expressed by non-governmental organisations,
the scientific community and others that there is a lack
of certainty over how the common law defence established
in Reynolds v. Times Newspapers applies outside the
context of mainstream journalism, and that this creates
a chilling effect on freedom of expression and investigative
reporting. This is a complex area of the law, and we are
considering whether and how a statutory defence could
be framed in a way that is beneficial and appropriate for
a range of different contexts.
We are also considering libel tourism. My right hon.
Friend gave various examples of that. There is a widespread
perception that the English courts have become the
forum of choice for those who wish to sue for libel, and
that that is having a chilling effect on freedom of
expression. I have to say to him, however, that there are
mixed views over the extent to which libel tourism is a
real problem. Research conducted in the context of the
libel working group’s consideration of this issue did not
show a significant number of actual cases involving
foreign litigants in the High Court in 2009. However,
non-governmental organisations have indicated that a
major problem arises from the threat of libel proceedings
by wealthy foreigners and public figures, which is used
to stifle investigative journalism, regardless of whether
actual cases are subsequently brought—hence the fact
that the number of cases alone might not accurately
reflect the extent of the problem.
We are considering possible options carefully in reaching
a decision on the way forward, including the proposal
of the Ministry of Justice libel working group for
procedural steps to tighten the rules and practice in
order to head off inappropriate claims at the earliest
possible stage, in cases where court permission is required
to serve a defamation claim outside England and Wales.
In doing so, we are of course keeping in mind the fact
that there is relevant European legislation—in particular
the Brussels I regulation—on jurisdictional matters.
We are also considering the difficulties caused by the
“multiple publication rule”—whereby each publication
of defamatory material gives rise to a separate cause of
action subject to its own limitation period—in relation
to online material. The effect of the rule is that publishers
are potentially liable for any defamatory material published
by them and accessed online. That applies however long
after the initial publication the material is accessed, and
whether or not proceedings have already been brought
in relation to the initial publication. We are considering
how we could frame a single publication rule to remove
the current threat of open-ended liability.
We are also considering a range of other aspects of
the law. They include the possible need for provisions
on renaming and codifying the existing defences of
justification and fair comment; on the basis on which
an action for defamation can be brought and whether it
should be necessary for claimants to show that they
have suffered substantial harm; on the ability of
corporations to bring defamation actions; on trial by
jury; on defamation in the context of internet publication;
and on issues relating to absolute and qualified privilege.
There is much ground to cover
My right hon. Friend asked about the use of superinjunctions.
I can tell him that the Master of the Rolls
has set up a committee to examine their use. We look
forward to seeing the outcome of its work soon.
We are pressing ahead with our work to ensure that
publication of the draft Bill and the accompanying
consultation paper takes place on as timely a basis as
possible in the new year. As well as considering the
substantive law, we are determined to ensure that costs
in all civil proceedings, including defamation, are
proportionate. In that context, the Secretary of State
for Justice announced to the House on 15 November
that the Government were consulting on proposals for
reform of civil litigation funding and costs in England
and Wales. We are seeking views on the implementation
of a package of recommendations made by Lord Justice
Jackson in his “Review of Civil Litigation Costs”. The
Government are grateful for Sir Rupert Jackson’s report,
in which he argues cogently that the costs of civil
litigation are too high and are often disproportionate to
the sums at issue. I also accept his fundamental argument
that achieving proportionate costs and promoting access
to justice go hand in hand.
The key proposal on which we are consulting is the
one to abolish recoverability of success fees and “after
the event” insurance premiums under conditional fee
agreements. Defendants who lose their cases are currently
liable for those additional costs, which are often substantial.
Abolishing recoverability would mean that claimants