Writing for PoliticsHome, Liberal Democrat MP Julian Huppert suggests changes to the Defamation Bill which could make it a "truly landmark Bill".
"When we launched the Libel Reform Campaign in 2009, only the Liberal Democrats backed change. Now the cause has cross party support." – John Kampfner, Chief Executive Index on Censorship.
We've certainly come a long way over the last three years. From the creation of the Libel reform campaign in 2009, to Lord Lester's Bill in 2010, and a Draft Government Bill from Lord McNally in 2011, we now have a full Government Bill. And it has been getting better with every step.
For example, I fought hard on the Joint Committee that scrutinised the Draft Bill for Clause 6, which protects comments made in peer-reviewed academic publications as long as they are not malicious.
For most people, it would be self-evident that, if an academic is providing their professional opinion, and no malicious comments are being made, they should be able to speak freely when talking about their field of expertise. The defence didn't exist, which meant that as many as 38% of editors of scientific journals have chosen not to publish certain articles because of a perceived risk of libel.
But, today, the Libel Reform Campaign, and its thousands of supporters, will deliver a petition to the Prime Minister asking for more crucial changes. The Bill is good – but could be excellent. There are four areas where more work is needed.
First, we need a full public interest defence. The Bill currently codifies the existing common law Reynolds defence for public interest – this is welcome. But it is a complex piece of law and a clearer, simpler system would be preferable.
Ministers should consider a new measure that would apply only where defendants take appropriate action to correct any errors or inaccuracies that they have made.
When comments are made in the public interest, and individuals take care to ensure that any defamatory statements are corrected and publicised, I see no reason for them to be hounded and silenced by lawyers.
Second, corporations must be treated differently to human beings. Most people would be astounded to learn that, when it comes to defamation, corporations are treated as if they are people.
Of course, a company must be able to protect itself against untrue allegations. But they are by definition different from people, and so too is the effect of a defamatory comment. And corporations can, such as in the McLibel case, abuse their power and their resources to take unreasonable libel actions.
The Joint Committee that scrutinised the draft Bill recommended a modest proposal that corporations should have to prove that they have actual, substantial financial loss and that they should have to get permission from the court in order to take actions. A more extreme view is that corporations should not be allowed to take libel action at all. The Bill is so far silent on this issue – and must speak.
Thirdly, the clauses regarding website operators must be clarified, and improved.
It needs to be expressly clear that this is a new defence for website operators, and is optional. Web operators can continue to rely on the existing defences from the e-commerce directive, rather than being forced to comply with new regulations. And we must also be clear that the good practice of post-comment moderation used by some website operators does not itself bring about liability for the comments they fail to spot.
Website operators must not be punished for doing the right thing.
There must also be an ability to preserve some anonymity, for example for whistleblowers. The key point is that there should be a communication channel between the person complaining and the
original author, even if that is mediated by a third party.
And lastly, there is more work required to see that the costs of defamation actions, and of defences, are massively reduced. The law should support whoever is right, not whoever is wealthiest.
In general, the Bill is a welcome injection of liberal thought into the murky world of defamation. I hope that reason prevails and the Government considers these further changes, to make this a truly landmark Bill.