As Progress knows only too well, English libel law can have a chilling effect on freedom of expression. That’s why, earlier this year, Progress signed up as an affiliate organisation to the Libel Reform Campaign a coalition led by English PEN, Index on Censorship and Sense About Science, to reform our positively antiquated libel laws.

The culture, media and sport select committee has published their long-awaited report ‘Press standards, privacy and libel’, which made some sensible suggestions on reforming our libel laws. It’s now up to progressives to take forward this once- in-a-generation opportunity to reform our defamation laws.

The committee made clear the problem of costs in libel actions. Jack Straw has already committed the Labour government to reducing the costs of CFAs (“no win, no fee”) in libel actions by reducing the ‘uplift’ on costs from 100 per cent to just 10 per cent. At the moment, if you are defending a libel action against a claimant who is using a no win, no fee agreement (CFA), if you lose the claimant’s lawyers will double their costs (in recognition of their ‘risk’ in potentially getting nothing if their client loses). This is known as ‘100 per cent uplift’. As has been pointed out by campaigners, claimants very rarely lose. In fact, the Libel Reform Campaign looked in detail at 154 libel cases in 2008 (out of 259 taken to the High Court), not a single case was won by the defendants. Lawyers using no win, no fee arrangements for claimants bear little risk, so capping uplift is welcome.

The committee also said there should be “maximum hourly rates” for lawyers’ fees. This will make a big difference to the cost of libel actions, especially in light of Carter-Ruck’s admission to the committee that leading libel laws firms charge ‘base costs’ of in excess of £400 per hour.

Corporations and ‘libel tourism’

On the use of libel actions by large corporations to silence dissent, the committee took on board our concerns. In the last year, the number of corporations suing each other has increased 300 per cent in the ‘dog eat dog’ climate of the recession. Worse still is the use of libel actions by corporations to bully newspapers and individuals. The committee recommended that in corporate cases, “it would be fairer to reverse the general burden of proof”. Jonathan Heawood, the director of English PEN said:

“I’m delighted that the select committee has made brave proposals on limiting the ability of corporations to bully charities, journalists and writers. Recognising that corporations have huge resources at their disposal, the recommendation to alter the burden of proof and make corporations prove that allegations made about them are untrue, will help stop the appalling abuse of our courts by major corporations.”

Many foreign claimants view London as an attractive place to sue because of our illiberal libel laws. The committee accepted the campaign’s concerns over ‘libel tourism’ and that too many cases are heard in the High Court in London. They made the recommendation that there should be “additional hurdles” before jurisdiction is accepted in our courts. The committee took a strong stand on this issue saying, “the reputation of the UK is being damaged by overly flexible jurisdiction rules”.

A public interest defence and ‘fair comment’

The committee endorsed the campaign’s calls for a stronger and more accessible public interest defence after hearing evidence from scientists, writers and human rights activists who expressed doubts over the reliability of using this defence in court. We’ve heard evidence that certain NGOs are spending tens of thousands of pounds of their donations from the general public on legal fees because they cannot be certain if they shame a dictator or corporation they won’t end up losing a damaging libel action: our public interest defence is simply not strong enough.

On ‘fair comment’ we think the committee missed an opportunity to affirm the need for a fair comment defence for all after the recent trials of Ben Goldacre and lately, Simon Singh. Whilst the committee accepted that the “fears of the medical and science community are well-founded” on this issue, they asked the government to, “take account of these concerns in a review of the country’s libel laws, in particular the issue of fair comment in academic peer-reviewed publications.”

Whilst we thank the committee for its recognition of the problem, we’re concerned that ghettoising fair comment in peer-reviewed journals would firstly not have helped Simon Singh in his libel case whatsoever (he published in the Guardian not in a peer-reviewed journal), and furthermore, it’s important that a fair comment defence is available to everyone, not just for academic discussion out of the reach of ordinary people.

Overall, the committee made some progressive suggestions which if implemented would reshape our libel laws to reflect the attitudes of the 21st century and not as now, the 19th. It’s up to our political class to take up the suggestions of the select committee and those of the Libel Reform Campaign  so we achieve the reform that organisations such as Progress have been calling for.