Imagine there was no libel law. There would be nothing at all to stop newspapers publishing lies about you, and about me, and about everyone else. If we complained they could just tell us to get lost.
For Rupert Murdoch, for Paul Dacre of the Daily Mail and for others, that is a kind of Holy Grail – freedom from responsibility and restraint, enabling their papers to defame whoever they disliked, whenever they liked, without consequence.
You may be surprised to know how close they are to achieving it.
Tomorrow in London the Supreme Court will hand down judgment on claims by national newspaper companies seeking, not actually to abolish the law of libel, but to make it much more difficult for all but a tiny fraction of the population to rely on it. Their aim is to wreck the ‘no-win-no-fee’ system.
The costs of pursuing a libel claim, it is well known, are beyond the pockets of the great majority of people. Even the initial sparring between solicitors is likely to involve bills in the thousands and if a case goes all the way to the High Court the costs will run into six figures and sometimes seven.
Since there is no legal aid in libel, as things stand if you aren’t rich you can only sue if you are lucky enough to secure a Conditional Fee Agreement (CFA), otherwise known as a ‘no-win-no-fee’ deal. Under a CFA, in principle, your solicitor accepts the financial risk in the expectation that you will win in the end, and that the other side will have to pay all the bills.
CFAs have their limitations, notably that many lawyers only accept very strong cases, but they have undoubtedly helped many people get justice who would not otherwise have been able to afford it. The Sun, the Mirror and the Mail do not like this, and they have gone to the Supreme Court in the hope of damaging the CFA system so badly it will no longer be able to help anyone.
They do not, of course, present their case as one of abolishing the libel law or denying access to justice. They say instead that they are defending the human rights of journalists. (The Mail actually invoked the supposedly hated European Convention on Human Rights, although it did not mention this to its readers.) They are also – they claim – seeking to restrain the greed of lawyers, who are accused of ramping up costs, and they are challenging insurance costs relating to such cases.
But make no mistake: if they succeed tomorrow they will restrict even further the opportunity for ordinary people to defend their reputations in law – and in this case ordinary people means everyone who is not a millionaire.
Behind all this lies a deeper, darker history. The Leveson report and the resulting parliamentary measures sought to push things in exactly the opposite direction – under Section 40 of the Crime and Courts Act everyone, every citizen of this country, would have a new, automatic right of access to affordable justice in libel and privacy cases through arbitration. This measure, personally endorsed at the time by Theresa May, was passed by Parliament with overwhelming support.
What went wrong? In 2015, for reasons that have never been entirely clear, the then media secretary, John Whittingdale, delighted the corporate press by putting Section 40 on hold. And there it remains. The government held a very loaded consultation on its future a few months ago, during which the national press mounted a hysterical campaign of opposition. We are still waiting to see whether ministers have the courage to do the right thing.
What of the libel law itself? Newspapers can hardly claim that it is unfair or outdated. The Defamation Act is barely four years old and incorporates significant reforms giving stronger protection to journalists, writers and publishers. Notably, claimants must now prove not only that contested material is defamatory but also that it has caused them ‘serious harm’.
In short, Murdoch, Dacre and their friends have recently seen the libel law reformed so that it is harder to sue them, while at the same time measures enabling more people to rely on the reformed law have been shelved. That’s a remarkable double win.
Add to that the manner in which, in open defiance of the Leveson recommendations and the wish of Parliament, they have been able to ensure an almost total absence of regulatory pressure to be accurate in their reporting. That’s three wins.
Now they are back seeking a fourth win to complete this appalling picture: they want the Supreme Court to narrow, or possibly in practice to close, the one existing route by which ordinary people are able to uphold their right to reputation.
Let us hope the judges see through them. If the newspaper groups win tomorrow, the libel law will, for most purposes, cease to exist, and if you thought today’s national press appeared unrestrained, just wait till you see tomorrow’s.