Is Libel Reform in Britain Really in the Cards?

by Jeffrey Azarva  •  Jul 16, 2010 at 2:48 pm

https://www.legal-project.org/blog/2010/07/is-libel-reform-in-britain-really-in-the-cards

On July 9, Lord McNally, U.K. Minister of State for Justice, announced plans to introduce a draft bill in early 2011 that would seek wholesale reform of England's notorious defamation laws. Free-speech advocates applauded the move, and with good reason—the U.K.'s plaintiff-friendly libel regime (e.g., burden of proof on defendant; weak "public interest" defense; broad jurisdictional reach; no single publication rule) has long succeeded in stifling free expression.

McNally's proposal is not the first time the government has tried its hand at libel reform. Prior to its ouster from power in the 2010 general election, the Labour Party mounted a last-ditch bid to amend the law, but the effort fell victim to political pitfalls.

Now, against a backdrop of grassroots support, the new Conservative-Liberal Democrat coalition has sought to pick up where the Labour government left off. On May 27, Lord Anthony Lester, a Liberal Democrat, introduced a private members' bill in parliament, the first attempt at comprehensive libel reform in decades. The draft legislation won a second reading in the House of Lords on July 9, a debate which culminated with Downing Street's decision to unveil its own defamation bill next year (McNally said that the Prime Minister's cabinet did not want to rush headlong into legislation, but admitted that Lester's bill had "greatly assisted" its thinking on reform).

Whatever the outcome of the current campaign, one thing is certain: the political milieu surrounding British libel reform has changed for the better. Yet, despite widespread sanguinity among journalists, scholars, and scientists, a difficult battle still looms for the new coalition.

Indeed, many of the same challenges that scuppered the Labour government's attempt at reform threaten to undermine McNally's efforts. A particularly thorny issue involves conditional fee agreements (CFAs), also known as "no win, no fee" deals. They were originally designed to give libel claimants of modest means access to the courts. Unfortunately, they have also encouraged frivolous, politically-motivated lawsuits. This problem is exacerbated by a rule which permits plaintiffs' attorneys to collect 100% of their fees from losing defendants on top of their usual rate, doubling their payout and resulting in astronomical legal costs. Indeed, a 2008 Oxford University study found that the average cost of defending a libel suit in the U.K. is 140 times higher than the rest of Europe.

Past efforts to revise these "success fees" have floundered. Last April, former Secretary of State for Justice Jack Straw sought to slash such fees to 10%. The statutory measure was expected to win easy approval. Instead, it was killed by a union of nine MPs from the Labour, Conservative, and Liberal Democrat parties ostensibly concerned that it would make it harder for poor claimants to find lawyers to take their case. It should be of little surprise that several of the parliamentarians responsible for stalling the reform measure enjoy good relations with the libel law firms at the center of the problem.

Libel lawyers, Islamists, and the other powerful groups happy to exploit U.K. libel law have a vested interest in perpetuating the status quo. McNally may have a "firm commitment" to see his reform agenda through, but just how his effort will avoid the same fate as his predecessors' remains to be seen.

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