And what's not in Lord Lester's Bill

As far as I can see this Bill does not provide the radical change to the laws of libel that many have been calling for - but I'm not wholly sure that any Bill can.

The Bill does not, in my opinion, really address the fundamental problem that many have with the libel laws as they operate at the moment and that is the issue of costs of defending an action.

The Condional Fee Arrangement has made it easier than ever to sue for libel, but defending an action is just as expensive and the prospect of being awarded costs from an unsuccessful claimant, sadly small.

This issue was addressed by Lord Justice Jackson in his report earlier this year. Jack Straw introduced welcome moves to cap costs, but they were kicked into the long grass in the House of Lords over concerns they would limit access to justice by those of limited means.

But this is all tinkering at the edges of the problem. I travel round the country talking to journalists and editors on regional papers and frankly the moves to reduce costs are not enough for them.

One North West editor told me that 90% of the libel threats he was getting were emanating from a few firms doing CFA business. They had absolutley no intention of taking their claims to the High Court, but were relying on the fact that the papers don't have the budget to go there either and so they get a small-ish settlement to end the case.

Of course some brave souls soldier on into court, despite limited resources and the action soaks up their finances and their time - Simon Singh for example.

But he is the exception to the rule, most simply don't have the stomach, or rather the cash, for the fight. Many regional papers abandoned libel insurance long ago because of the high premiums. Also when you get into a fight the insurer often urges early settlement to avoid hefty court costs.

So you can strengthen the old defences, strike out actions, create a public interest defence - but many publishers won't go that far. Ands that is the really insidious thing about libel. Not the way the courts necessarily operate, but the environment it creates outside the court, where an aggressive litigant can stifle legitimate debate by constant threats of libel action.

Solutions have been suggested, such as making the burden on the claimant greater. However, it would be very difficult, for instance, to reverse the burden of proof in a libel action, requiring a claimant to prove they did not commit the defamatory behaviour alleged. We do not require that of those accused in criminal trials, and so such a move would probably not bear a challenge in Europe.

But what if there were an alternative way of resolving disputes? A forum that the courts themselves would say: No, you must try there first before you come to law?

Well, what about the PCC? Before you dismiss it, I'm not saying that in its present state it could do the job. If you were a lawyer advising a libelled claimant what would you say: Go for the High Court and big buck for both of us, or go to the PCC where the best you'll get is an apology and you don't need my expertise to do it?

If we really are going to get radical reform of the libel laws in this country then I see it being tied to a regulatory system that is far more pro-active than the PCC, and one which has ultimate penalties that are more serious than a requirement to print an adjudication.

Of course, the idea of a PCC with teeth is not a new one and it has been batted away by the PCC and the industry as being unworkable and that it will inevitably drag those expensive , time-consuming lawyers into the process. That argument might hold water if there were not a great big elephant in the room called Ofcom - which can and does levy fines and does not seem to take inordinately long to give broadcasters a caning. Of course, we'll have to see if it survives not the Coalition Government is in power.

But as newspapers increasingly move their content online and onto video, the line that differentiates them from broadcasters is being blurred and I'm not sure the argument against them having a regulator similar to Ofcom is as valid as it used to be. Of course, I know, the existence of Ofcom has not stopped broadcasters from being sued for libel. But if you put in a regulatory system of first resort, you might have a chance of heading off libel threats.

This will require some action from the PCC. They are very good at publishing customer satisfaction surveys for those who use their service and are happy with the outcome, but what they need to do now is look at why people do not use them, and instead go to law.

Defamation Amendment Bill 2010 - Analysis

This is a swift analysis of the Bill published today, introduced by Lib-Dem peer Lord Lester as a Private Member's Bill.

As I mentioned earlier, this first thing that struck me was Section 1 which establishes a statutory defence of publication in the public interest, and it seems to be based on the Reynolds defence.

Prior to this, the defence was one at Common Law, developed by judges and stemming from the case of Reynolds v Times Newspapers. The difficulty with Reynolds for publishers is that it is a defence where there is almost an acceptance that you have to fight in court to get it. Unlike the other privilege defences, which often head a case off before it has even got to court. There are so many hurdles to Reynolds that it if you as a publisher want to claim it, you have to accept that your journalistic practices are going to be scrutinised in court in order to establish whether you get Reynolds or not.

This Bill in Clause 1a and 1b establishes a defence if the matters were published in the public interest and the defendant acted responsibly in doing so. However, it then goes on to define reponsible publication and use some, but not all, of the language of the 10-steps of the Reynolds defence described by Lord Nicholls in that case.

When the Ministry of Justice working party on libel reform reported on this it stopped short of recommending the codification of Reynolds. Instead some of its members, notably those representing NGOs, writers and the scientific community, recommended that consideration be given to a new public interest defence where publication dealt directly with politics, science, commerce, sport healthcare, the environment, public administration or was a form of artistic impression and that any relevant professional codes and standards had been followed by the publisher.

I'm not especially advocating the working party plan, but it's interesting that Lord Lester's Bill goes for a Reynolds model rather than a new defence.

The second thing of note is that in the the second clause of the Bill the defence of fair comment is renamed as honest opinion. This is a more accurate title for the defence, and has been described thus by judges in such cases as Branson v Bower [2002] QB737. It's worth noting that the Bill in describing how a defence of honest opinion is established says at 3(6)c it does not matter whether the facts that led to the opinion are included in the publication or not. So, if you had this defence, you would not need to publish: This is what I think and this is why I think it.

Clause 4, eminently sensibly changes the name of the defence of Justication to Truth.

A defendant would have to show words to be true, or capable of a less serious meaning, according to the Bill. Note that the Bill does not reverse the burden of proof as regards truth. The onus is still on the defendant to show the truth of what they have published if that is their defence.

The defences of absolute privilege and qualified privilege in the Bill look broadly similar to the existing defences, as do the schedules defining what they cover.

Clause 9 of the Bill is interesting in the defence it provides for broadcasters and websites where they are not the authors or editors of the defamatory material. A claimant is required to give notice of the words complained of; why they are defamatory; what is untrue and why they are harmful. The defendant the has a notice period of 14 days from receipt to remove the offending material.

Clause 10 would appear to answer the concerns of those publishing on the internet by stating that as long as what you publish is by the same person and has materially the same content, then the date it was first made available to the public is the first date of publication.

Clause 11 makes an important change in requiring corporate bodies who want to sue for libel to show substantial financial loss.

Clause 12 continues that theme in requiring the court to strike out an action for defamation unless the claimant shows substantial harm of the likelihood of substantial harm to their reputation.

That's a brief summing up of the points of interest from a quick reading today. I'm sure others will find more to chew on in the days and weeks to come.

What happens now depends on whether the coalition government uses Lord Lester's Bill as a template for reform and gives it parliamentary time, or whether they want to introduce their own Bill, as promised in the Queen's Speech.

Lord Lester's Libel Bill in full

Here's the Bill on libel reform introduced by Lord Lester. Via @martinjemoore of the Media Standards Trust

Will blog soon, but one quick point, it's opening section effectively codifies the Reynolds defence.

Lord Lester's libel reform bill

Lord Lester is introducing a Private Member's Bill on libel reform to the House of Lords this Thursday.

He was interwiewed on Radio 4's Today programme this morning about the bill and you can listen to the it again here.

The Bill, he said, would 'assist' the government in looking at reform of the libel laws. He said it would include measures requiring claimants and corporate claimants to show actual damage - something they are not required to do at the moment, damage is 'presumed.'

He said the Bill would also require libel trials to be heard by a judge alone. It would also examine libel defences such as privilege. He pointed out that the last reform of the law was in 1996, with the Defamation Act of that year. This was, he said, before the spread of the internet, web hosts, bloggers and so on, all of whom are affected by libel laws.

Lord Lester has been active in this area for some time and has been planning his defamation reform bill last year, as reported in The Times.

It will be interesting to see the details of his Bill this week. All the major parties gave commitments to libel reform in their manifestoes. The Lib Dems' was the most specific. It will also be interesting then to see what reception Lord Lester's bill gets from Government, because to have any hope of proceeding the Government will have to agree to giving it time in Parliament.