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