Libel Reform – smells like victory

For those few resilient readers who have weathered the year-long storm of open access posts at Reciprocal Space and still look in here occasionally for reports of the libel reform campaign, there is good news.

Within days I should be able to remove the Libel Reform Campaign button from my web-site because late yesterday afternoon the Defamation Bill had its final reading in the House of Lords. It should pass back to the Commons today for approval (but see updates below!) and then proceed to the statute book.

Lord McNally leading the final Lords debate on the Defamation Bill

What a long and rocky road it has been since the campaign started in 2009. Even at the end, it looked as if the bill might be derailed. First, by an amendment introduced by Lord David Puttnam which added provisions on privacy in order to provoke the Government into addressing the legislative challenges to press freedom raised by the Leveson report. That move, which lacked cross-party support and seemed likely at one point to prevent the Defamation Bill being reintroduced to Parliament, was eventually resolved after long night of political horse-trading.

Then on Tuesday last week amendments approved by the Lords which sought to oblige companies to demonstrate real financial damages before suing for libel and to prevent firms contracted to provide public services from using libel law to stymie criticism (echoing a principle established for public bodies) were undone in the House of Commons by a Government-supported amendment introduced by Sir Edward Garnier MP.

It was all getting very complicated — opinions varied on whether the battle was lost or won; see, for example, the blogposts published following the Commons debate by David Allen Green and Prateek Buch.

And then on Monday came news of a government U-turn on the question of enacting a stricter financial test on companies to demonstrate real damage before they could bring a libel action. That volte-face duly transpired in the debate in the Lords yesterday where a government amendment providing for such a test was approved. Why the government changed its mind in the past week remains a mystery to me, as do many aspects of parliamentary language and procedure.

Nevertheless the upshot is that we are on the verge of having significantly reformed libel laws in England and Wales. Not everything the campaign wanted has been won but there is little doubt that the law will change for the better. With enactment of the bill we will have a stronger public interest defence, protection for peer-reviewed academic publications, a test for real financial damages to prevent libel chill and reduce the power imbalance between powerful organisations and private individuals, and a legal framework that is updated for the internet age.

I cannot pretend to understand the exact nature and implications of all the provisions of the final bill — I hope that the legal bloggers will soon weigh in with analysis of what exactly has changed (see final update below*) — but yesterday was most definitely a good day for free debate.

Having observed from near and far over the past few years, it has been an interesting and remarkable journey — a heady mix of social media, chiropractic, celebrity endorsement and courtroom drama, not to mention the unseen hours and hours of dogged campaigning. Special gratitude must go Simon Singh for having the courage to face down the libel threat from the now discredited British Chiropractic Association, a move that was key to igniting the campaign, but particularly also to the folks at Sense About Science, English PEN and Index on Censorship for gathering public support for a campaign that has changed the law. It feels like… democracy.

Update (09:51, 24-4-13): Perhaps I wrote too soon because just moments after publishing this post this morning came news of another 11th hour amendment from Sir Edward Garnier MP that aims to reverse the government-backed change made to the Defamation Bill in the Lords yesterday. It is to be hoped that the government will secure support for its own amendment in the Commons this afternoon but we shall have to wait and see…

Update (14:50, 24-4-13): …fortunately, Garnier could read the writing on the wall and, in the end, did not press for a vote on his amendment. Immediately thereafter, and just a few moments ago, the Commons voted to approve the final amendment agreed yesterday in the Lords. And so ends the Parliamentary journey of the Defamation Bill. It should soon reappear as the Defamation Act, 2013. 

Bottomley is amused to be defamed (under Parliamentary privilege) by Sir Edward Garnier

*Update (21:06, 24-4-13): The Libel Reform Campaign has broadly welcomed the new legislation while also pointing out some of the missed opportunities. For more detail, see the useful summary (PDF) of the strengths and weakness of the bill that has been passed. Some things will depend on the nature of the procedures to be introduced by government. Dr Evan Harris, who has been involved in the campaign from the start, scored the bill at 19/33 but thought that might rise to 26/33 depending on how new rules and regulations are implemented)