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Libel law reform needed

Libel law in the United Kingdom has been used to protect the wealthy and powerful from criticism as the "high costs involved and the scale of damages have chilled free speech," says a recent report by English PEN and Index on Censorship. The cost of libel action in England and Wales is 140 times higher than the European average.

In 2008 the United Nations issued a report saying that the "practical application of the law of libel" in the U.K. "discouraged critical media reporting on matters of serious public interest." The UN also suggested that English libel law may violate Article 19 of the International Covenant on Civil and Political Rights, the right to free expression. This UN report prompted Index on Censorship and English PEN to carry out their own investigations, and the two groups launched the Libel Reform Campaign in December 2009 with Sense About Science.

The report by Index on Censorship and English PEN details 10 failings of the current libel law and makes its own recommendations.

For example, the report says, "libel law exists to protect people against statements that have a meaning lowering them 'in the estimation of right-thinking members of society generally', or exposing them to 'hatred ridicule or contempt' or causing them to be 'shunned and avoided.'" In English law the defendant carries the burden of proof, suggesting that the reputation of the claimant is more important than the free speech of the defendant. This is why English courts are popular with foreign claimants, leading to what is known as "libel tourism."

The report recommends that the claimant should have to demonstrate that a reputation has been damaged in order to bring a libel action. And in response to "libel tourism" the report suggests that no case should be accepted in this jurisdiction unless "at least 10 per cent of copies of the relevant publication have been circulated here."

Internet users are also under threat without the protection and resources of a media outlet. "Many bloggers receive writs to take down content on their website posted by other people." Libel law needs to be reformed to address the reality of global publishing and to protect free speech. The report recommends that interactive chat and interactive online services - comments by a third party on a blog - should be exempt from liability.

The crippling cost of defending a libel action is a major impediment to free speech. The report recommends capping fees and damages and suggests the main remedy in libel should be an apology; the law should not be used to increase a claimant's bank statement. On 19 January, Justice Secretary Jack Straw announced that he agreed with the recommendations and that he would cut the amount that lawyers can claim in "success fees" when they win a case from 100 to 10 percent.

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