In My Opinion: Francis Shennan: The welcome Defamation Bill and the threat hanging over it

A COLD front is expected to move out across the country, emanating from the House of Lords tomorrow, Monday.

It could extend the chilling effect of the repressive defamation laws we have laboured under for years.

It is all because Lord Puttnam and colleagues want to amend the Defamation Bill as it goes for its third and final reading.

The Bill would finally relax Britain’s infamous libel laws which have been used to gag journalists, scientists, doctors, biographers, consumer and human rights activists.

Campaigners have spent 15 years working on it. It would introduce a strengthened public-interest defence and require claimants to show that they had suffered ‘serious harm’ from the publication.

However, three weeks ago, an amendment from Puttnam was passed by 272 votes to 141. It would enact a beefed-up version of the Leveson recommendations.

It would introduce a libel arbitration body under a new press regulator. Journalists who failed to consult this regulator in advance of publishing a story would risk exemplary damages in libel and privacy actions.

If Puttnam’s amendment is not dropped, the Government is likely to drop the Defamation Bill instead, rather than risk this form of Leveson becoming law.

Lord Lester, whose private member’s Bill was the basis for the Bill now being debated, wrote in The Sun: “Free speech in this country is in grave danger of being stifled by party political gamesmanship. The threat comes from politicians who have hijacked an attempt to reform our out-of-date, repressive libel law by clogging the Defamation Bill with wrecking amendments.”

Members of the Lords and Commons are our law-makers. Instead of behaving as statesman-like legislators they too often behave like political opportunists. Is it any wonder our laws are frequently a mess?

On this matter they are doing what I often have to mark down students for: confusing the issues of defamation and privacy.

Our legislators also pay too little attention to the consequences of their games. Consider this: our legal system actively encourages unethical behaviour by journalists.

Don’t believe me? Ethics dictate that we should get both sides of the story, should seek a response from those who might be adversely portrayed in a story. However, the risk is that once a person becomes aware of the story, he or she will very likely try to get an injunction, or interdict in Scotland, to prevent publication.

This risk would be reduced if judges gave more weight to the public interest, with a presumption in its favour, and had views about the public interest which were closer to those of the public.

We need the equivalent of ‘Reynolds defence’ for privacy. This defence in libel cases, most clearly set out in the 2006 case of Jameel versus Wall Street Journal Europe, allows the protection of qualified privilege for news reporting if it is on a matter of public interest and the result of responsible journalism. And, said the Law Lords, that test should be applied in a practical way which does not present undue hurdles for journalists.

If journalists could be confident that applications for injunctions were likely to be speedily dismissed, they would be more confident in seeking the other side’s views. Whatever the purpose of law, it should not be to put obstacles in the path of ethical behaviour.

Francis Shennan is director of and Visiting Lecturer in journalism and law at Westminster, Stirling and Strathclyde Universities.