For three libel QCs, who recently addressed the Joint Committee on the Draft Defamation Bill, appeared decidedly underwhelmed by some of the proposals – particularly the Bill’s first four clauses which largely rehearse existing law.
But judging from what’s said of reputation in Othello, the Bard may have appreciated the answer given by Adrienne Page QC to an insightful question from Lord Mawhinney, the committee’s chairman.
“Do you think we are slightly precious about reputation and that this would be a healthier country if we were to recommend an enhancement of free expression, perhaps to the detriment around the edges – not fundamentally – of defamation?” asked the chairman.
It was a profound question, probing underlying principles of libel law, and culture.
Lord Mawhinney had previously referred to the “more enhanced” right to free speech available in the United States, where the First Amendment to the US Constitution has made it more difficult to defend reputations there than in England and other jurisdictions.
The context of his important question was, perhaps, the relative ease with which an actionable libel claim may be formulated and pursued under existing English law.
After all, the draft reform Bill was conceived in response to public disquiet over injustices that had seen scientists, writers and journalists embroiled in defending costly claims.
The three libel silks who were called as witnesses to assist the reform committee – Hugh Tomlinson, Desmond Browne, and Adrienne Page – all agreed that clause 8, which abolishes jury trials for the majority of libel cases, was a sensible proposal to enable judges to intervene early to decide the defamatory’‘meaning’ of words without having to delay such pivotal issues to be considered by a jury at the end of a case.
Yet the barristers had reservations about clauses 1, 2, 3 and 4, which deal with the defences of public interest publication, Truth, and Honest Opinion, and the “substantial harm” gateway test. They felt these amounted to “codification” of existing law, not reform.
Mr Tomlinson QC argued that the balance between reputation and free speech in England was similar to the balance struck in other European countries and common law countries besides the United States – and that the balance in the US was “in a very strange place.”
And Mr Browne QC reminded the committee that the right to reputation was now recognised as a human right and as an important part of the right to respect for private life.
Lord Mawhinney asked: “So when you talk about having reservations about Clauses 1, 2, 3 and 4, we should understand that it is the specifics of the drafting of those clauses, not the underlying principles, that you are concerned about.”
Ms Page QC took the opportunity to express some fundamental concerns about English libel law.
“I would strike a slightly different note. There are problems with the drafting of these clauses, but I also empathise with your expression ‘precious’, because I have had many cases where I think, ‘Why shouldn’t one be able to say that without a libel action ensuing?
“It covers all sorts of different areas. It is generally people speaking what they think.
“I am not able to put my finger on what change there might be other than what is most important, which is that people should be free to speak about what is in the public interest and the public interest should not be too narrowly defined.”
It remains to be seen whether the committee, due to report in October this year, will steer reform in a more radical direction and make a real difference.
Certainly it seems there are fears the draft Bill could become a missed opportunity unless there is a more fundamental shift to give automatic priority to freedom of expression over reputation – something that is prohibited under existing European human rights law.
Next up before the committee, today, will be a group of judicial figures, including the High Court’s reform-minded top media law judge, Justice Tugendhat, the Master of the Rolls, Lord Neuberger, and former Lord Chief Justice, Lord Woolf.
Their views will make interesting reading, but perhaps not as memorable as the Bard’s eternal words in Othello, in which Cassio bemoans: “Reputation, reputation, reputation!
“O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!”
And Iago replies: “As I am an honest man, I thought you had received some bodily wound; there is more offence in that than in reputation.
“Reputation is an idle and most false imposition; oft got without merit, and lost without deserving: you have lost no reputation at all, unless you repute yourself such a loser.”