Libel law shake-up proposals published by Ken Clarke

Supreme Court The draft bill aims to cut down on "libel tourism"

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A shake-up of libel laws in England and Wales will ensure people can state honest opinions with confidence, Justice Secretary Ken Clarke says.

The draft Defamation Bill, published on Tuesday, also aims to reduce "libel tourism" by overseas claimants.

It follows concerns that libel laws are crushing freedom of expression in scientific and academic debate.

The Conservatives, Labour and the Lib Dems all committed to reviewing libel law in their election manifestos.

Substantial harm

Much of libel law in England and Wales derives from case law - the draft bill introduces new statutory defences to protect those writing about issues of public interest.

The common law defences of "justification" and "fair comment" will be scrapped, replaced with new statutory defences of "truth" and "honest opinion".

The draft bill notes that libel cases can currently be brought "without proof of actual damage" as long as the statement would tend to "lower the reputation of the claimant in the estimation of right-thinking members of society".

There will be a new requirement in the bill that a statement must have caused, or be likely to cause, substantial harm to someone's reputation, if it is to be considered defamatory.

The government says the new laws will make it tougher for people to bring overseas claims which have little connection to the UK.

Ken Clarke Mr Clarke said free speech was a vital part of a democratic society

And the proposals include a "single publication rule" - to prevent claims being brought more than one year after publication. It could stop repeat claims being made related to material published on the internet. Libel actions can currently be brought years after a story is placed in an archive, as publication is considered to be continuous.

It proposes extending the libel protections of absolute and qualified privilege - which currently apply to people speaking in Parliament, UK and some international courts and other public proceedings - to cover more situations, including more protection for coverage of hearings in other countries.

Absolute privilege could be extended to include proceedings at more foreign courts, international courts or tribunals established by the UN Security Council.

Qualified privilege could be extended to cover more court and government proceedings in other countries, and general meetings and documents circulated by public companies across the world.

The bill also removes the presumption that defamation cases will be heard by a jury trial - instead the judge will be given discretion to order a jury trial when it is "in the interests of justice".

The government says the right to trial by jury is rare in civil cases and there are concerns that it can mean issues which could have been resolved by a judge early on instead cannot be resolved until the trial.

'Devil in the detail'

Lord Phillips, President of the Supreme Court, has said defamation cases can be so complex that a jury trial "simply invites expensive interlocutory battles".

But Mr Clarke said in exceptional cases there should be jury trials - as they were still one of the best ways to tell which one of two witnesses was telling the truth.

Introducing the bill, he said: "The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society.

"In recent years though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate, and investigative journalism.

"However it is never acceptable to harm someone's reputation without just cause, so the bill will ensure defamation law continues to balance the needs of both sides and encourage a just outcome in libel cases."

Deputy PM Nick Clegg said current libel laws were outdated: "We cannot continue to tolerate a culture in which scientists, journalists and bloggers are afraid to tackle issues of public importance for fear of being sued."

However, calls to give "secondary publishers" like internet service providers, internet discussion forums and booksellers greater protection has been put out to consultation, as have suggestions that specific restrictions should be put on the ability of corporations to bring defamation actions.

Shadow justice minister Rob Flello said: "It is important we bring to an end libel tourism which damages Britain's reputation. Protection under the law must be available to everyone, whatever their means, while ensuring the public interest is served by a free press."

He added: "The devil will be in the detail of this bill and how it will bring libel laws up to date and in line with a growing online media."

But Rod Dadak, head of defamation at law firm Lewis Silkin, said the bill "tends to favour media organisations whilst not doing enough to protect the defamed" and could have been "sponsored by the media".

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