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Volume 715: debated on Tuesday 1 December 2009


Asked By

To ask Her Majesty’s Government whether they will respond to the recommendation by English PEN and Index on Censorship that restrictions should be imposed on libel claims that do not have substantial connections to the jurisdiction of the United Kingdom.

The Government will consider very carefully all the recommendations in the report published by English PEN and Index on Censorship alongside those of the Culture, Media and Sport Select Committee, the report of whose inquiry into press standards, privacy and libel is expected shortly.

I am grateful to the Minister. Does he accept that for the courts of this country to entertain libel proceedings that are brought by people who have no connection to this country against publishers who are based abroad, such proceedings being founded on the incidental publication in this country of a few copies of a newspaper, book or magazine published abroad, is very damaging to free speech worldwide and to the reputation of this country? Will the Government consider introducing reforms to prevent such libel tourism?

My Lords, the Government are indeed concerned about libel tourism. Part of it is geographic extent, which is touched on in the Question. However, there are three other issues: the arguably penal cost system in London; the multiple publication rule; and the balance between reputation and freedom of speech, which at least the US Supreme Court believes is unreasonably weighted in favour of reputation. The report covers all these issues. The Government hope to respond to it, alongside the Select Committee’s report, within two months of the latter’s publication.

My Lords, does my noble friend the Minister agree that scientists, other scholars and medical experts are becoming increasingly wary of challenging dubious claims—about health products, for example—because of the chilling effect of the various aspects of libel law, one of which has been usefully touched on by the noble Lord, Lord Pannick? There are other aspects as well, such as the weighting of libel law generally against freedom of speech and the “availability of contingency fee” system, which encourages actions that may be undeserved.

My Lords, without committing the Government too much, I generally take those points. The Government take this issue very seriously, in about five areas. The Master of the Rolls asked Lord Justice Jackson to look at all aspects of the cost of civil litigation, including libel law; he will report by the end of the year and that report will be published on 14 January. The Government consulted on 24 February with the document Controlling Costs in Defamation Proceedings. That was responded to on 24 September and new measures were introduced on 1 October. The Government also started a consultation on 16 September, with Defamation and the Internet: The Multiple Publication Rule, which ends on 16 December. As I said, the report will be considered in two months. The Justice Secretary is setting up a working group to examine a range of issues around libel, including libel tourism. It will consist of media lawyers and government experts. The aim will be to make recommendations on reform.

My Lords, does the Minister accept—I think that he partially did in his first Answer—that the real problem is the costs in libel cases, particularly the very high costs in London, rather than necessarily any problems within libel law itself?

Being a Whip, I have had to learn all about this in the past two days. I do not accept that any one of these issues is quite as heavy as the noble Lord suggests. There would be no magnet to London if our balance were the same as that in the US. These libels will be prosecuted at the appropriate place. There is no question, though, but that cost is a serious issue. The costs are accentuated by the conditional fee agreement with the 100 per cent uplift and the after-the-event insurance, which could be 65 per cent of the cost, meaning that the defendant can end up with 165 per cent more costs than were actually incurred. It is undoubtedly true that the costs are a substantial part of the chilling effect.

Would the Minister spend another day in considering the Irish Defamation Act 2009, which provides for defences of honest opinion in matters of public interest in respect of the author and for innocent publication where the person or publisher who publishes the alleged libel is not the originator? Those are bang-up-to-the-minute revisions designed to protect press freedom and freedom of speech. Or would the Minister not start from there?

I am sure that the working party that the Justice Secretary has spoken of will consider international examples. On the specific outline of the law, I will hand that over to my noble friend Lord Bach when he comes back from Europe tomorrow.

My Lords, while I accept that there is much to be said for the comprehensive study or series of studies referred to by the Minister, is there not a danger that the study may be so comprehensive and wholesome that it will not lead to anything in the short term? In the mean time, our courts will be cluttered by litigants who are often utterly ruthless in seeking to stifle the truth, particularly in the field of medical science, where systems and situations that are at best bogus are often revealed.

My Lords, the Government are seized of the point made by the noble Lord. The Justice Secretary is particularly concerned that, in the reaction to the various studies that I outlined, there is some sense of speed in righting some of these problems.