So now we have a draft Defamation Bill to play with. There are some good posts up about this (see e.g. Inforrm, Index on Censorship ) as well as reports in the press (Nick Clegg’s piece in the Guardian, Joshua Rozenberg (also Guardian), Christopher Hope (focusing on ‘libel tourism’) in the Telegraph. But this post is my suggestion that this is looking like a missed opportunity, and is first and foremost a clarification of the law, rather than something more interesting, and to that end I put forward these three points. [sorry – writing much of this offline – will add further links later]
1. The consultation paper is extremely English-focused. Despite a new Defamation Act in Ireland (itself the subject of Law Reform Commission papers and at least one Working Group) having passed in 2009 and not long in force, can you guess how many times it is referred to? Clue: it starts with Z and ends with Ero. Similarly, other jurisdictions which started with the English common law torts don’t get a look in. This is such a pity. The Reynolds defence, for example, has been discussed in courts across the Commonwealth, e.g. in Canada (Grant v Torstar 2009), and others have seen statutory changes (e.g. a set of statutes across the Australian jurisdictions in 2005 – which gets mentioned in brief without citations or details at one point in the document). Reading this consultation makes you think that there are no other models in the world (let alone the common law family) worth thinking about – or that statutory drafting should start from scratch. Dr. Eoin O’Dell (Trinity College Dublin) has already taken on the task of comparing the draft Bill with the Irish Act, and it’s a very important post for you to read – but this is something that the Ministry of Justice should have done.
2. The focus is also on changes to tort law. The role of the Press Complaints Commission isn’t considered (compare with the original Irish proposal of a statutory press council and the eventual adoption of a co-regulatory model whereby the Press Council is industry-driven but the subject of statutory recognition. Nor is the fact that broadcasters are subject to the ‘fairness’ (as well as ‘privacy’ but that’s for another day) provisions of the Ofcom Broadcasting Code, which would not be changed by defamation reform. As a media law issue (and I accept defamation is not just a media issue), a narrow focus on the familiar tort without considering how it plugs into the actual set of influences on the press and on broadcasters (as well as the complicated stuff which I’ll mention in a moment) may lead to inappropriate results.
3. The section on the Internet is quite incomplete (like this blog post). The decision in Metropolitan Schools, for example, is not discussed – despite it saying some very significant things about both s 1 of the 1996 Act and the E-Commerce Directive (such as the role of common law in protecting search engines). (Apparently Godfrey v Demon is the leading case. What year are we in again?) The role of the ISP is explained in confusing and contradictory terms (sometimes it seems to mean mere conduit a la article 12 ECD, sometimes wider). ECJ jurisprudence is ignored. Notice and takedown is discussed without even naming the DMCA (and its strengths and flaws).
I find the debate on libel reform quite frustrating. Too often it’s seen (even by Government) as a debate between ‘the media’ and ‘claimant lawyers’. Too often we have pressure groups who don’t disclose who they are and what they are connected to. Too often the media fails to report the story in detail. So a draft Bill could have presented an opportunity to break out of this cycle and consider the purpose of defamation law, informed by the vibrant debates taking place in Foreign Places. So far, this Bill seems to me to be coming up for conversation within fairly narrow terms. Hopefully it is not too late to fix that.
(Kudos to anyone who knows what I’m hinting at in the title: clue, it’s about Northern Ireland)