Libel reform suddenly – score one for the blogosphere

With libel reform being sporadically debated for years, mostly with little expectation of action, justice secretary Jack Straw's announcement this week that the Government is to virtually abolish success fees for defamation cases has rather caught everyone on the hop.

Despite the issue gathering mounting attention over the last six months, last Wednesday's announcement garnered relatively little media attention for what amounts to substantive legal reform with wide public interest implications.

And the timing is surprising. The negative aspects of defamation law in the UK have been apparent for a long time. The burden of proof placed on defendants combined with a vague concept of public interest defence and high legal costs have long made the UK an attractive place for wealthy claimants to pursue claims. Many of these claims will be valid, but even when they are not there is a massive incentive for individuals and small organisations on the receiving end to settle rather than risk being landed with huge legal costs.

The introduction of success fees and after-the-event insurance aggravated the costs issue, particularly as some wealthy claimants use success fees as tactical weapons to increase the cost risks for defendants. True, libel tourism does plainly exist thanks to the broad jurisdictional reach the UK courts have generally adopted though there is little to suggest this is a new phenomenon.

Neither is there much evidence of a spike in the level of claims. Quite the reverse: the number of defamation claims filed in the High Court in recent years has generally been less than 300 a year - well down on the all-time high of 560 seen in 1995.

What has changed over the last two years has been the tone of the debate. For years calls for libel reform were indelibly linked - and therefore undermined - by associations with the excesses of tabloid journalism. Given that members of Parliament were some of the most regular victims of tabloid exposes, and some of the most active users of courts, there was understandably little political will to change a broadly pro-claimant system.

What has changed is that the tabloids have been replaced by the altogether more sympathetic face of scientists warning that libel law is being used to stifle debate, to the obvious detriment of the public interest. This argument has been very effectively promoted by campaign bodies like Index on Censorship and the charitable trust Sense about Science. As important, a passionate group of bloggers, who broadly share a rationalist or evidence-based outlook, have enthusiastically backed this campaign.

The cause has also had a fantastic focal point to rally around in the controversial libel claim by the British Chiropractic Association (BCA) against the well-regarded science writer Simon Singh for writing in a newspaper article that the BCA happily promoted "bogus" treatments. Mr Justice Eady, the leading defamation and privacy judge in the UK, has also proved a useful bogey man for free speech campaigners, not entirely without cause.

The aggressive tactics of media lawyers have in some cases also undermined the traditional Parliamentary support for the status quo with super injunctions and attempts to encroach on Parliamentary privilege going down badly. Even if these cases were correct in law, they have plainly eroded lawyers' political capital. By the same token, the tendency for costs in libel cases to dwarf the damages has damaged the image of media lawyers.

This has brought the prospect of reform of libel and privacy law from several avenues, with the Ministry of Justice in October announcing a review of so-called super injunctions and in January floating the now confirmed cut in success fees. The Parliamentary Culture, Media and Sport committee last month called for a review of the burden of proof in libel cases and a drastic cut in the level of success fees which could be recovered from the losing party. And, perhaps most significantly, the wide-ranging review of civil litigation costs published in January by Lord Justice Jackson recommended several reforms to contain costs in defamation proceedings.

With such a broad coalition of support building for reform of libel law and all but the most rabidly blinkered claimant lawyer conceding the current regime is not perfect, what's not to like?

Well, you can be in favour of reforming libel law (personally, I am) without being massively enthused with blunt instrument of banning success fees in defamation cases.

While the free speech campaign has presented the defendant as David facing a wealthy claimant Goliath, in many cases the roles are reversed with individuals of limited means squaring up to large media organisations. For every saintly Simon Singh you can bet there are three idiots with a blog or muck-raking hacks defaming those with little chance of redress.

As Carter-Ruck's Andrew Stephenson argues, fewer of these cases will be taken on without meaningful success fees (Stephenson estimates that around half of the cases brought to his firm are from those who would struggle to cover the costs without success fees).

And why the 10% limit on success fees? It seems an arbitrary figure. But, more oddly, why the sudden rush when you have well-received proposals from Jackson already on the table? (The MoJ calls cutting success fees an "interim measure" while the Government considers Jackson's recommendations.) Jackson's favoured solution broadly is to end the practice of the losing party covering the cost of success fees and litigation insurance and to allow judges far more flexibility to take account of the financial position of claimants when ordering costs at the end of the case (or "qualified one way cost shifting" for connoisseurs of legal jargon). The latter move would enable a claimant with minimal means to bring a case against a big media company without automatically having to pay the other side's cost if they lost.

This would seem a rather better way of cutting costs without denying the average person means to defend their reputation. There is also the irony that success fees are on occasion used to represent defendants, as Carter-Ruck did in representing Danish radiology professor Henrik Thomsen in a high profile libel claim brought by GE Healthcare (like Singh, Thomsen's case, which settled last month, was supported by free speech campaigners).

Many might also think that a good deal of the underlying problem is that the UK has resisted coming up with a much more clearly codified model for how a public interest defence should work in defamation. With a clearer model, those pursuing valid journalistic investigation and scientific debate would know where they stood - and lawyers would earn rather less.

Some media lawyers have interpreted Straw's new-found trigger-finger to be the result of a campaign by the media and a naked attempt to win newspaper favour ahead of a general election. But, given that the tabloids are more bothered about privacy law than the minor irritant of defamation, I suspect this one has more to do with committed campaigners backed by a well-organised online community. Even if the result is questionable, this looks like a significant victory for people power.

For more, see Success fees in libel cases to be slashed by 90%.