LIBEL LAW

Defamation (libel and slander) is a tort, a civil wrong. Like other torts, such as trespass and nuisance, it is designed to protect something, in this case a person's reputation.

In England and Wales, the law of defamation is mainly a common law creation. That means that it is subject to the quirks of history and precedent that bedevil/enrich (take your pick) all of the common law. It is, for instance, one of only four civil offences (along with fraud, malicious prosecution and false imprisonment), where there can still be a trial in front of a jury. There is a "multiple publication rule" dating from a famous 19th century case, which holds that every publication constitutes in principle a separate and distinct cause of action; workable, perhaps, in an age of books and newspapers, but not appropriate for the internet age, where every hit on a website can be a separate publication. And since reputation way back then was a big thing - at least for the minority of bigwigs who had recourse to the king's courts - damage is presumed. This puts the burden on the defendant to prove that their statements are true, which can sometimes be impossible.

True, some things are getting easier. There is now a "Reynolds defence" of responsible journalism if the subject matter is in the public interest; and Article 10 of the European Convention on Human Rights (now codified into English law) supports freedom of expression. However, Article 8 guarantees respect for private life, and private life has been held to include reputation. Sorting out the balance of competing interests can be fiendishly complicated.

It is not surprising, therefore, that libel actions are mainly undertaken by rich people with deep pockets. Indeed, the supposed benefits to the claimant are so great that there is a view that London is a source of "libel tourism", where rich expatriates with little connection to England and Wales sue defendants with equally little connection to the juridisiction on the basis of publication within England of minute amounts of material. This is of particular concern to scientists wishing to debunk claims by multinationals and NGO's wishing to expose corruption or other sharp practices.

Nobody really knows whether the libel tourism label is true or not. However, what is undoubtedly true is that reform of the libel laws is moving sharply up the political agenda. The publication on 23 March of a report by the Libel Working Group on some of the difficulties and possible solutions elicited a commitment from the Justice Secretary Jack Straw that there will be reforms if the Labour Government is reelected at the coming General Election. Watch this space ...

Walter Blotscher