Click on 'read more' and you'll find a stack of links with selected excerpts to further illustrate the analysis below. Main themes here: the 2011 libel reform proposals, now the 2012 Libel Reform Bill - a response to our laws/courts being seen to be used by corporations and the rich to bully newspapers into silence on issues that they didn't want reported. When Max Mosley won his breach of privacy case against NoTW, News International ran up £1m in costs defending itself. The social worker libelled by The Sun over the Baby P case 'won', but was left with a legal bill of £300k: do libel laws only work if you're rich? Also looks at difference between libel (written) + slander/defamation (visual/speech), and the issues raised by online material, plus 'superinjunctions', eg the Trafigura case (also John Terry, Ryan Giggs, Andrew Marr...).
Another quick eg on costs (24.5.12): Carina Trimingham sued the Mail for breaches of privacy and homophobic harassment over the 65 articles they published on her, many mockingly or irrelevantly citing her (lesbian/bisexual) sexuality. She lost, and is left with a £410k bill: thats the Mail's legal costs which she has been ordered to pay. CT had an affair with MP Chris Huhne.
I think we've well enough established how unsatisfactory the PCC is as a press regulator: it offers minimal protection from intrusion or inaccuracy, and remedies of dubious status should your complaint be upheld (although it does seem to undertake substantial work to resolve complaints by acting as a complainant/press go-between, so speeding things up).
When it comes to the alternative of using the law courts, there is a clear issue: cost.
Before looking at a case which shows how legal justice may be increasingly out of reach of all but the rich (
thus a return to the way things were before the 1792 Fox's Libel Act (adding juries) and Libel Act of 1843 (creating a public interest defence?), bear in mind that this works both ways: the
superinjunctions [see
this blog +
BBC] we've seen are an expression of the ability of the rich and powerful to silence our democratic press/media. Indeed, we even get '
libel tourism': the rich and powerful (not least corporations seeking to prevent negative coverage of their actions) from outside the UK using UK law courts to get court orders which legally restrict reporting on them not just in the UK but beyond too. Libel laws are not beyond question: yes, they theoretically offer some protection from media intrusion and distortion, BUT corporations can take out cases knowing that many papers will simply agree to their demands (often, in effect, to cease publishing the truth) to avoid the huge legal expenses of a court case. At a time when most newspapers have been savagely reducing their workforces, even a successful legal defence of a libel complaint can cost the equivalent of several full-time journalists!
Here then is a case (as reported by Roy Greenslade) of a social worker who won her libel case against The Sun - and has been left with a £300k bill, after the damages award has been factored in (added emphasis is mine).
Social worker Sylvia Henry won a libel action against The Sun, which made false allegations about her over the Baby P case, but she now faces the possibility of being almost £300,000 out of pocket.
That's the amount of shortfall in the legal costs she is able to claim from the paper's publisher, News Group Newspapers (NGN).
The
senior costs judge, Master Hurst, ruled that lawyers acting for Henry
could not claim any more than the previous court-approved amount from
NGN, a division of News International.
He
made the ruling despite the fact that Henry would have a "very good
case" to justify the extra costs in a detailed assessment.
In June last year, The Sun agreed to pay Henry compensation and apologised unreservedly to her for publishing false allegations about her role in the Baby P tragedy.
Henry,
a social worker in the London borough of Haringey for 23 years, was
accused by The Sun of being "grossly negligent" in her handling of the
case.
Baby P, Peter Connelly, was a 17-month old boy who died
after suffering more than 50 injuries over an eight-month period. His
mother, her boyfriend and another relative were convicted of causing or
allowing the death of the child.
But Haringey children's services
came in for criticism for failing to protect Peter, and The Sun ran a
campaign alleging that the department was partly to blame for his death.
As
part of that campaign, published over four months from November 2008,
Henry was accused by the paper of being "grossly negligent" in her
handling of Baby P's case.
Her solicitor, Daniel Taylor, told the
high court that the newspaper alleged she had shown no remorse for these
failings and was "shameless and had ducked responsibility for Peter's
death".
The false allegations were said to have been published in about 80 articles.
Ben
Beabey, the solicitor for NGN, told the court in that hearing: "The Sun
fully accepts that the claimant played no part and bears no
responsibility for the circumstances surrounding the death of Peter
Connelly and that she did her best for him. The Sun apologises to Ms
Henry."
Following that hearing, the London legal firm that acted for Henry, Taylor Hampton, have been seeking costs from NGN.
It exceeded the previous agreed amounts, it said, because of the way the defence was conducted.
Master
Hurst said NGN has "mounted a vigorous and lengthy defence which was
amended four times. They served 10 lists of documents.
"I do not
suggest that the defendant was not entitled to act as it did, but it
cannot now try to pass off this constantly changing scenario as being no
more than a minor inconvenience to the claimant."
But the costs
judge said that Henry's lawyers had "largely ignored the provisions of
the practice direction" in relation to the budgeting of costs.
He
suggested that Henry's lawyers should have raised the matter of the
extra costs earlier in the litigation and he therefore ruled in NGN's
favour.
Daniel Taylor said they were "naturally disappointed with
the decision" but thought it "very significant" that the judge gave
permission for an appeal without any request for one.
The case
will be seen as significant because Master Hurst's judgment is the first
such ruling in relation to a defamation costs budgeting pilot following
reforms proposed by Lord Justice Jackson.
Sources: Legal Futures (1) and (2)
Notice there's no mention of the PCC here. Just as importantly, if you were on a typical social worker wage of <£20k a year, and read this, what would YOU do if YOUR name was attacked in this way? How could you get any justice if you cannot afford such a bill? (Again, do note that this logic also works in reverse: newspapers, especially local/regional, frequently cave in to frankly cheeky complaints from corporations rather than face the crippling costs of defending the principle of freedom of speech; of freedom to publish in a democracy.)
Lets define a couple of terms here:
In common law jurisdictions, slander refers to a malicious, false,[2][not specific enough to verify] and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images.[3]
Most jurisdictions allow legal actions, civil and/or criminal, to deter
various kinds of defamation and retaliate against groundless criticism.
Related to defamation is public disclosure of private facts,
which arises where one person reveals information that is not of public
concern, and the release of which would offend a reasonable person.
"Unlike [with] libel, truth is not a defense for invasion of privacy."[4][not verified in body]
The
common law origins of defamation lie in the
torts of "slander" (harmful statement in a transitory form, especially speech), each of which gives a common law right of action.
"Defamation" is the general term used internationally, and is used in
this article where it is not necessary to distinguish between "slander"
and "libel". Libel and slander both require publication.
[8] The fundamental distinction between libel and slander lies solely in the
form
in which the defamatory matter is published. If the offending material
is published in some fleeting form, as by spoken words or sounds, sign
language, gestures and the like, then this is slander.
I've left all the
Wiki-notes in to highlight the curious lack of precision in such a major concept, but basically:
SLANDER/DEFAMATION = malicious or false SPOKEN statements
LIBEL = malicious or false WRITTEN statements (or still images)
THE MOSLEY CASE
In
the case of Max Mosley [see
this article +
Gdn section], whose S&M/bondage practices were splashed across newspapers by NoTW, he has successfully sued for breach of privacy under the European Convention on Human Rights BUT
lost his libel case. See
http://en.wikipedia.org/wiki/Mosley_v_News_Group_Newspapers. Mosley's victory was hollow - he was awarded only £60k damages!!! - but then again the legal costs of News International topped £1m.
The Mosley case (the story ran in 2008, his law suits were swift with early judgements in 2009 but more cases potentially to be launched; Mosley continues to campaign for much tighter restrictions on the media) is a key one for 'wider social issues', not least the conflicting right to privacy and right to free expression. Mosley had asked that the courts enforce a right for anyone subject of a newspaper article to be informed prior to publication - but, having been given the rather small £60k damages for breach of his right to privacy under article 8 of the European Convention on Human Rights (ECHR), the judge dismissed this idea as in conflict with another ECHR article, 10, on freedom of expression:
"The government's judgment is that the imposition of such a positive
duty would be likely to have - and would undoubtedly risk - a serious
chilling effect on the freedom of the media and the freedom of the
public to express themselves," Eadie told the court.
... For the Guardian, Lord Lester QC argued that the legal duty
sought by Mosley was not required by article 8 of the human rights
convention - the right to privacy - and was inconsistent with the right
to freedom of expression in article 10. The availability of injunctions
and the right to sue for damages after the event amounted to an
effective domestic remedy, he claimed.
"In practice," said Lester,
"injunctive relief is usually available and will in itself be an
effective remedy." These arguments have found favour with the court
today.
What seems to have tipped the balance in favour of the
media was the court's conclusion that any requirement to pre-notify an
individual would have been subject to a public interest exception. A
newspaper could opt not to notify the person concerned if it believed it
could defend its decision subsequently on the basis of the public
interest, the court said.
A reasonable belief in a public-interest
defence would have to be sufficient to justify non-notification, the
court said, even if it was found later that no such public interest
arose. Otherwise, there would be a chilling effect on freedom of
expression.
This was on the European Court of Human Rights' May 2011 ruling (
written by legal expert Joshua Rozenberg).
See all Roy Greenslade articles linked to the Mosley case:
http://www.guardian.co.uk/media/greenslade+mosley
Michael White: 'This case exemplified the fact that - with some honourable exceptions - serious investigative journalism is in retreat':
Newspapers are entitled to make mistakes in a free society - and make
amends when they do, which many find harder. But this one, like the McCann and Robert Murat settlements in recent weeks, is hard to justify on the media side. So our side may have been weakened for no good reason.
But
things will be OK as long as a robust public interest defence remains
effective, the so-called Reynolds defence mounted by the Sunday Times
against a libel suit from the former Irish Taoiseach, a case where the
paper was able to show it had given Reynolds time to reply before
publication.
What the NoW's dirty tale of S&M sex sessions
failed to show was legitimate public interest as opposed to lots of the
public being interested in the Formula 1's chief's strange private
obsession.
...
The sad truth is that serious investigative journalism - tabloid,
broadsheet and radio/TV kinds - are all in retreat with honourable
exceptions, including those which Guardian readers read from time to
time.
Why? Because they're difficult and expensive, they run up
against powerful interests with hot-shot legal teams. Much easier and
cheaper to print more rubbish about celebrities.
A pity poorer people than Max Mosley who get defamed can't get redress as he did.
Some more brief points/resources:
Several excerpts below on the March 2011 announcement of proposals to reform libel law; this led to a Libel Reform Bill being included in the May 2012 Queen's Speech (when proposed new laws to be voted on by Parliament are announced). There also sections on superinjunctions and Tweed's 2012 book.
