Libel: Its Purpose and Reform

Date01 November 2011
DOIhttp://doi.org/10.1111/j.1468-2230.2011.00875.x
Publication Date01 November 2011
AuthorDavid Howarth
Libel: Its Purpose and Reform
David Howarth*
Discussion of libel often fails to define defamation law’s purpose and thus properly to assess its
value. This article argues that defamation’s purpose relates to fundamental human interests in
sociality, directly linked to important aspects of human health and well-being. Protecting such
interests is arguably required by the right to private life under ECHR article 8 and should not
count as a violation of the right to freedom of speech. Some current reform proposals are criticised
as failing to appreciate the importance of protecting sociality. ‘Business’ libel, however, often
protects not sociality but purely economic interests.The article thereforeargues that the protection
of libel law, as opposed to that offered by malicious falsehood and the economic torts, should be
withdrawn from purely economic reputation,starting with removing the rights of corporations to
sue in defamation, a position compatible with the ECtHR’s decision in Karako vHungary.
Towards the end of the first decade of the 21st century, libel reform became
fashionable. Actors, stand-up comedians and other celebrities signed petitions
and appeared in charity concerts. Emails from concerned citizens, including
many from scientific researchers and academics, poured into the mailboxes of
Members of Parliament, demanding that they sign early day motions and attend
Westminster Hall debates. Pro-reform articles appeared in all the newspapers,
from the Independent to the Daily Star. Consequently, all three main party
manifestos at the 2010 general election promised libel reform, and the coalition
agreement, on which the new government was founded,included a commitment
to ‘review libel laws [sic] to protect freedom of speech’.1In fulfilment of that
promise, the Ministry of Justice published a draft Libel Reform Bill.2
The draft Bill proposed a ‘substantial harm’ test for all defamation actions,
statutory versions of the common law defences of justification, fair comment and
that under Reynolds vTimes Newspapers Ltd,3extension of the statutory privilege
defences, a single publication rule in place of the multiple publication rule (that
a new cause of action arises every time a third party receives the defamatory
words),restr icting jurisdiction in cases involving non-EU citizens and abolishing
the right to jury tr ial.The consultation on the draft Bill also considered other
reforms, such as removing the right of corporations to sue in defamation.
The consultation document on the draft Bill cited as precursors much recent
activity in the field, including a report by the Commons Culture, Media and
*Clare College, Cambridge. I should like to thank Evan Harris, Kirsty Hughes, Nicole Moreham,
Andrew Scott and the anonymous referees of the Review for their interest and assistance. None of
them, of course,is responsible for any of the views here expressed or for any remaining errors.
1The Coalition: Our Programme for Government (Cabinet Office,May 2010) 11.
2 Ministry of Justice, Draft Defamation Bill: Consultation CP3/11, March 2011 at http://
www.justice.gov.uk/consultations/docs/draft-defamation-bill-consultation.pdf (last visited 4
August 2011).
© 2011The Author.The Modern Law Review © 2011 The Modern Law ReviewLimited. (2011) 74(6) MLR 845–877
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
Sport Committee on ‘Press Standards, Libel and Privacy’,4a report from a ‘Libel
Working Group’ set up by the Ministry of Justice under the previous adminis-
tration,5an earlier Ministry of Justice consultation paper specifically on the
multiple publication rule,6and a Private Member’s Bill promoted in the House
of Lords by Lord Lester of Herne Hill.7It also cited pressure group activity
from the Campaign for Libel Reform, sponsored by Index on Censorship,
English Pen and Sense about Science,which had produced a report entitled ‘Free
Speech Is Not For Sale’ (FSINFS).8All of these publications, to a greater or
lesser extent, called for libel law to be reformed in the same direction, in favour
of the interests of defendants and against the interests of claimants.
The purpose of this article, in contrast, is to contend that the debate on libel
reform tended, and is still tending,to fail to define the pur pose of defamation law
and thus has failed properly to assess its value.It argues for a view of that purpose
that links defamation to fundamental human interests in sociality, interests too
important to be treated in the sometimes dismissive tones libel reform campaign-
ers brought to the debate. In one significant aspect of libel reform, however, the
view of the purpose of defamation taken here would bring us to a position more
radical than that taken by many reformers, one that questions not just the
standing of corporate claimants but of all forms of defamation in which the har m
is purely economic. It also observes a movement in a similar direction in the
jurisprudence of the European Court of Human Rights.
WHAT IS DEFAMATION LAW ABOUT?
For reasons that may or may not be connected with the financial rewards of the
field, books on the law of defamation tend to be written by practitioners rather
than by academics, and, consequently, discussion of libel law tends to ignore
fundamentals and to leap immediately into the details of procedure and defences.
The central question, in Eric Barendt’s words ‘What is the point of libel law?’9is
rarely asked.10
Unfortunately,the same refusal to think about fundamentals seemed to afflict
the 2009 – 2011 proposals for reform, including the consultation document on
4 HC 361-1. 2010.
5 Report of the Libel Working Group Ministry of Justice 23 March 2010 at http://
www.justice.gov.uk/publications/docs/libel-working-group-report.pdf (last visited 4 August
2011).
6 Ministry of Justice, Defamation and the internet: the multiple publication rule CP 20/09, 2009.
7 Defamation Bill 2010.
8 ‘Free Speech Is Not For Sale’ at http://libelreform.org/reports/LibelDoc_LowRes.pdf (last visited
2 August 2011).
9 [1999] 52 Current Legal Problems 110.
10 Gatley on Libel and Slander (London: Sweet and Maxwell, 11th ed, 2008) has no discussion of the
purposes of libel law,aside from remarking that reputation ‘has value’(at 20). D. Price,K. Duodu
and N. Cain, Defamation: Law, Procedure and Practice (London: Sweet and Maxwell, 4th ed, 2009)
likewise has nothing on the subject. Carter-Ruck on Libel and Privacy (London:LexisNexis, 6th ed,
2010), however,produced by a team containing an equal number of practitioners and academics,
contains, at 21–26,a short exposition of Robert Post’s account of the purposes of libel, qv text at
note 43 below.
Libel Reform
© 2011 TheAuthor.The Moder n Law Review© 2011 The Modern Law Review Limited.
846 (2011) 74(6) MLR 845–877
the draft Bill. Although acknowledging that there is something called
‘reputation’, the protection of which has to be balanced against the competing
value of freedom of speech, it failed to ask what precisely ‘reputation’ is and
why it might be valuable.11 Most of the publications it cited also failed to connect
their proposals with a clear and coherent view of what libel law is for.12
One of the official reports, the consultation paper on the multiple publication
rule, however, while not offering a view of the purpose of protecting reputation,
did imply a very low valuation of such protection. It included a table intended
to summarise the official view of the possible impact of various options for
reform,13 in which Ministry of Justice officials identified no costs to ‘wider
society’ of reducing protection for reputation, and placed all the costs of such a
reduction in the category of costs to individual claimants.The implication was
that the protection of reputation, unlike the protection of free speech, is entirely
a matter of individual welfare.The Ministry’s position, one might note, contrasts
sharply with that of Lord Nicholls in Reynolds vTimes Newspapers Ltd:
Reputation is an integral and important part of the dignity of the individual. It also
forms the basis of many decisions in a democratic society which are fundamental to
its well-being: whom to employ or work for, whom to promote, whom to do
business with or to vote for. Once besmirched by an unfounded allegation in a
national newspaper, a reputation can be damaged forever, especially if there is no
opportunity to vindicate one’s reputation.When this happens, society as well as the
individual is the loser. For it should not be supposed that protection of reputation is
a matter of importance only to the affected individual and his family. Protection of
reputation is conducive to the public good. It is in the public interest that the
reputation of public figures should not be debased falsely. In the political field, in
order to make an informed choice, the electorate needs to be able to identify the
good as well as the bad.14
11 See eg Draft Defamation Bill: Consultation n 2 above, 3.The consultation document uses the word
‘reputation’ over 20 times without once attempting a definition.
12 The Culture, Media and Sport select committee restricts itself to a brief summary of defamation
law, nearly half of which is devoted to the question of whether libel damages are falling or rising,
before it launches into a discussion of procedural details and from there into the substance of
various issues (see n 4 above at paragraphs 117–124). The LibelWorking Group, although invited
to report on ‘whether the lawof libel, including the law relating to“libel tour ism”,in England and
Wales was in need of reform and, if so,to make recommendations as to solutions’ (see n 5 above,
3), decided that, for reasons of time pressure, it would concentrate on the details of the ‘libel
tourism’ issue and then on a selection of other,then currently newsworthy,issues that arose largely
from complaints by media organisations about the current law (‘whether there should be a new
statutory public interest defence,the multiple publication rule and a range of procedural issues’, to
quote the group’s own account of its deliberations (ibid, 44)). The Explanatory Notes to Lord
Lester’s Bill at http://www.odysseustrust.org/defamation/Exp_Notes2010.pdf (last visited 4
August 2011) noted that defamation law ‘is based upon the civil and private right of every
individual to the unimpaired possession of his or her reputation and good name.The general rule
is that no one may speak falsely of his or her neighbour, and that it is in the public interest that
“the law should provide an effective means whereby a man can vindicate his reputation against
calumny” ’,but offered no explanation of what the relevant public interest is.
13 See Defamation and the internet n 6 above, 40 (table 1).
14 [2001] 2 AC127, 201.For a game-theoretical confirmation of the impor tance of accurate reputation
for example the efficiency of markets, see W. Roeb and J. Weesie,‘Reputation and Efficiency in
Social Interactions:An Example of Network Effects’ (1990) 96 American Journal of Sociology 626.
David Howarth
© 2011 TheAuthor.The Moder n Law Review© 2011 The Modern Law Review Limited. 847(2011) 74(6) MLR 845–877

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