After months of debating, will the Defamation Bill ever get its eagerly anticipated debut?

22 February 2013

The Defamation Bill (the “Bill”) has been the subject of debate for over 9 months, after having had its first House of Commons reading on 10 May 2012. The Bill is due to get its Third Reading at the House of Lords on 25 February 2013, which is the last stage for it to be amended. Following this, it will be sent back to the House of Commons for consideration of any amendments before being passed on to receive Royal Assent.

Having gone through this process, it was therefore slightly concerning to read Lord Lester’s comments that the entire piece of legislation could be abandoned before getting its moment of glory.

So what has happened that could be causing so much discontent? The cost of bringing or defending libel claims is currently so “grotesquely expensive” (Daily Telegraph) according to some opinion, that it makes the law inaccessible to ‘ordinary people’. One of the objectives of the Bill was to reduce the cost of bringing libel actions by abolishing trial by jury. The Bill also creates a ‘Serious Harm Test’ which is intended to prevent frivolous claims and create ‘user-friendly’ defences of honest opinion, truth and qualified privilege. It also introduces a public interest defence.

Earlier this month, during its reading at the House of Lords, Lord Puttman introduced an amendment which has been described as having “a chilling effect on free speech, not just for newspapers but ordinary citizens”.

Under Lord Puttman’s proposed amendments, which seek to push through some proposals from the Leveson Enquiry, a new arbitration system would be created between newspapers and members of the public making claims for defamation. While it would be voluntary, newspapers that did not join up could be punished by the Courts, who could award greater damages and costs in defamation cases. The criticism is that as this would be set up in legislation, it would potentially allow Parliament and Government to manipulate it, and the new regulator would be “ultimately subject to the control of Parliament”.

The knock on effect of this is that newspapers would only be protected from huge libel damages if they have asked for advice from the regulator and received pre approval to publish an article.

This has members of the two Houses and members of the Press in uproar. Comments such as “these proposals on media law would curb the free Press in a way never seen in any democratic country” have been made, and a report by three eminent QCs has been commissioned (by the Press) who have gone so far as to say that this amendment would be a violation of Article 10 of the European Convention of Human Rights, which protects freedom of expression. This means that no minister would be able to state, as required by the Human Rights Act, that the draft was compatible with that Act. These proposals would presumably also affect bloggers and “indeed…anyone uploading information on to the internet that could be downloaded and read in this jurisdiction”.

So far, the Government is resisting this proposal and will attempt during this week, to overturn the amendments. If that is unsuccessful there is a very real chance that the Bill will be ‘parked’ by the House of Commons, which no one would want, given the effort it has taken to reach this stage and the excellent opportunity for updating our current libel laws.

Will the last two years of preparation and debate come to nothing? We await the Third Reading on 25 February to find out.

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