Very few know why the Defamation Bill does not apply to Northern Ireland, an outrageous decision that has created a gaping loophole in the government’s attempts to reform the UK’s libel laws. It took endless humiliation before parliament got the message and decided to reform the law of libel: the UN Human Rights Council said our libel law chilled free speech across the entire globe, American academics faced our courts for writing about the funding of Al Qaeda, Barack Obama signed into law an Act to protect Americans from our libel law and decent scientists such as Simon Singh, Ben Goldacre and NHS cardiologist Pete Wilsmhurst faced ruin thanks to the law.

These humilations led the three major political parties to make a commitment to libel reform in their general election manifestos in 2010. They didn’t qualify this bold commitment with “except in Northern Ireland”. Why would they? The law in Northern Ireland has always been substantially the same as the law in England and Wales, that is until the government reformed it. At no point in the parliamentary debate did the government signal the Defamation Bill would not apply to the citizens of Northern Ireland. But that’s what happened. In the name of devolution, a DUP Minister was able to block (single-handedly) the law from applying to the province.

The law was blocked in a less than democratic manner that is still clouded in secrecy. The former Minister of Finance and Personnel, the combustible Sammy Wilson MLA, withdrew a paper on adoption of the new Defamation Bill without scrutiny by either the Assembly or the Executive. Wilson’s Department refuses to comment, even to a political committee in Stormont, on why consents for the Defamation Bill weren’t sought in the required timescale. What is known is that just days after the DUP’s Ian Paisley Jnr MP made no less than 10 interventions casting doubt on the Defamation Bill in its second reading debate in the House of Commons, Wilson withdrew the paper relating to adoption of the Defamation Act.

First Minister and DUP leader Peter Robinson has said it is “absurd” to claim that the libel law “restricts in some way the media from doing their job”. Yet, Northern Ireland’s media seem under siege. As Sam McBride, the political correspondent of the News Letter tweeted:

“The volume of solicitors’ letters from DUP to BBC over one Spotlight episode gives a pretty clear hint as to why DUP blocked libel reform”.

Other journalists agree. Viscount Colville (himself a respected BBC journalist) relayed to the House of Lords testimony he had been given by the editor of the Belfast Telegraph, Mike Gilson:

“In a small country without official opposition the media’s scrutinising role of government and institutions is even more crucial. I have edited newspapers in every country of the United Kingdom and the time and money now needed to fight off vexatious legal claims against us here is the highest I have ever experienced”.”

The DUP have been very clear in stating their opposition to reform. Worse still, due to the cross-community provisions in the Good Friday Agreement, as the largest Unionist party the DUP can effectively block any Bill they don’t like – even though they only control 38 of the Assembly’s 108 seats. With a majority in the Assembly sympathetic towards the prospect of libel reform and a consultation showing 90% of people in Northern Ireland back reform of the law, this is hardly democratic.

A Private Member’s Bill launched by Mike Nesbitt, the leader of the UUP, attracted support in the Assembly. But now it has been put on ice after the new DUP Finance Minister set the Northern Ireland Law Commission off to run a consultation on the law of libel. While the Law Commission is an esteemed institution, many politicians feel this is an attempt to kick the matter into the long grass. No date has been set for the Commission to launch their consultation, it may not happen for a year. Worse still, evidence submitted to the Law Commission will not be protected by privilege, leaving NGOs reporting on the libel threats dished out by politicians themselves open to libel actions.

Next week in Parliament, an attempt will be made by Peers to amend the Northern Ireland (Miscellaneous Provisions) Bill to extent the Defamation Act to Northern Ireland. Seeing the impact on freedom of expression and the opaque manner in which this issue has been handled, respected parliamentarians are backing the amendment. It is a direct challenge to the DUP who felt they alone could decide on libel reform. The question now is whether the Labour party and Liberal Democrats will back this amendment. Both parties, in particular Labour as the midwife of the Good Friday Agreement, feel fealty towards devolution. Yet, they did also tell the UK at the last election if elected they would reform the law of libel – with no exception. Parliament should send a clear message to the DUP – you alone cannot decide on whether free speech is good enough for the citizens of Northern Ireland.

This article was posted on 21 February 2014 on mjrharris.co.uk

The heroes of the Libel Reform Campaign

On 1 January 2014, the Defamation Act took effect across England and Wales. The Act will have a hugely positive effect on freedom of speech and better protect the public interest, fair comment and individuals from corporate bullying. But – who made this happen? This is my personal take on the individuals who are the heroes behind the Libel Reform Campaign.

My list can’t (and doesn’t) cover the 60,000 people who took the time to sign the petition, lobby their MPs and write to every newspaper in the country. Nor can it anything but touch upon the donors, 100 affiliated organisations or politicians who made the campaign a huge success. I will have no doubt forgotten hugely significant people from the list – omissions are entirely the fault of my lacklustre memory.

So in absolutely no particular order:

Victims of the law

Simon Singh @slsingh

Simon was the inspiration for and constant source of energy for the campaign. Simon’s absolute stubborn determination to do something about the state of the law during and after his case was extraordinary.

Peter Wilmshurst

A true modern hero. Dr Wilmshurst risked his family home and his professional career to speak out about a study into a medical device. Alike many of the victims of libel who joined our campaign, Dr Wilmshurst dedicated a huge amount of personal time in order to speak to politicians to persuade them to get the law right.

Ben Goldacre @BenGoldacre

Don’t talk to Dr Goldacre about vitamin pills. His case illustrated the dangers of the state of the libel law – and his unwavering support broadened the campaign considerably.

Honorable mentions: CarersWatch, Alex Hilton, John Gray, Vaughan Jones, Stuart Jones, Lesley Kemp, David Osler, Hardeep Singh.

Famous folk

Lots of famous people turn up to an event, have their photo taken and disappear. Not these lot.

Dara Ó Briain @daraobriain

My favourite Dara moment isn’t the Big Libel Gig where he gave a barnstorming performance, but him in private meetings with Ed Miliband and Lord McNally where his knowledge of the law was not only impressive, but mildly terrifying to the politicians who expected mild-mannered banter but were put on the spot.

Brian Cox @ProfBrianCox

Not only did Prof. Cox find the time to tour TV studios, but he handed in our 60,000 strong petition to Downing Street and used his Sun column to back the campaign.

Dave Gorman @DaveGorman

One of the key figures behind the Mass Rally for Libel Reform an event the then Justice Secretary Jack Straw described as the best attended he’d seen in parliament in years.

Robin Ince @RobinInce

The brilliant host (and co-organiser) of the Big Libel Gig, Robin rounded up as many of his contacts as he could to put on the greatest comedic show ever – about the law of defamation.

Honorable mentions: Marcus Brigstocke, Stephen Fry, AC Grayling, Ian Hislop, Shappi Khorsandi, Tim Minchin, Jonathan Ross, Adam Rutherford.

Journalists & Writers

Lisa Appignanesi @LisaAppignanesi

Lisa’s personal experience of the libel laws as a writer made her push for libel law reform as early as 2008 while PEN President.

Nick Cohen @NickCohen4

From the Ehrenfeld case through to Singh case and Lord Puttnam’s last minute attempt to tack Leveson into libel (and wreck the Bill), Cohen has written more than almost anyone else on why libel reform was necessary and just.

David Allen Green @JackofKent

David’s call to arms in the Wetherspoons pub (the Penderal’s Oak) in Holborn is immortalised in a plaque that now hangs on the wall. As one of the campaigning lawyers and journalists who gave impetus to the campaign he stuck with us through thick and thin.

Maya Wolfe-Robinson @mwolferobinson

Had to wade through as many op/eds on libel reform as any sane person could handle. But continued to give unstinting support to the campaign.

Honorable mentions: Jake Arnott, Guy Black, Phillip Campbell, Amanda Craig, Frances Gibb, Fiona Godley, Afua Hirsch, Natasha Loder, John Micklethwait, Alan Rusbridger, Nick Ross, John Sweeney, Craig Woodhouse, Peter Wright.

Lawyers

Robert Dougans @RobertDougans

Simon Singh’s lawyer first and foremost but also the defender of a long list of other worthy folk. Dougans is a one-man free speech engine.

Mark Lewis @MarkLewisLawyer

Defended the Owlstalk bloggers and Dr Peter Wilmshurst from libel actions. An endless source of knowledge, time and ideas for the campaign.

Adrienne Page @PageAdrienne

Gave the campaign exceptionally useful advice during the passage of the Defamation Bill especially on how to improve the public interest defence.

Gill Phillips @ladywell23

Endless good advice and practical examples of how the law chilled responsible journalism.

David Price

An enormous help to the campaign in refining our position on costs, the public interest defence and in a number of other key areas.

Stephen Sedley

Chair of the Alternative Libel Project. His sensible stewardship has made cheap alternatives to a full trial possible.

Mark Stephens @MarksLarks

Gave a significant amount of his time to the original report and subsequently to promoting libel reform within the legal profession.

Honorable mentions: Alistair Brett, Joanne Cash, Harvey Kass, Caroline Kelly, David Marshall, Gavin Millar, Brian Neill, Marcus Partington, Jonathan Price, Heather Rogers, Pia Sarma.

Campaigners

People who gave their time. For free.

The Geek Calendar @geekcalender

The nerds (as a compliment) who launched Geek Calendar not only made the must-have calender of 2011, but raised thousands of £s for the campaign. Special thanks to the organisers Mun-Keat Looi (@ayasawada); Alice Bell, Louise Crane and the production team Ben Gilbert, Greg Funnell; Cosima Dinkel; Greg Foot, Barry Gibb, Tom Ziessen.

Tracy King @tkingdoll

The co-organiser (and inspiration for) the Big Libel Gig, a huge sell out show in front of over 2,000 people in London’s Palace Theatre. Tracy’s gig was a massive success that fired a rocket up the politicians.

Honorable mentions: @noodlemaz, @rebeccawatson, @davepaton

Scientists, NGOs, campaign groups

Justine Roberts (@Justine_Roberts) & Rowan Davies (@RowanDavies), Mumsnet

Mumsnet’s Justine Roberts donated a staggering £12,500 to the Libel Reform Campaign and kept her organisation behind the campaign through the whole 4 year period.

Charmian Gooch, Global Witness

Global Witness’s evidence to parliamentarians made a huge difference in persuading the government to update and improve the public interest defence.

Honorable mentions: Emma Ascroft (Yahoo!), Kate Briscoe, David Colquhoun, Richard Dunstan (Citizens Advice), Francisco Lacerda, Antony Lempert (British Medical Association), Richard Mollet (Publishers Association) Dalia Neild, Bob Satchwell (Society of Editors).

Politicians

You only ever hear bad stuff about politicians. This group of politicians put party-politics aside and made a big difference.

Lord Lester

The “grandfather” (in his own words) of the Defamation Act. Without Lord Lester’s private members bill, none of this may have been possible. His private bill showed that placing important defences into statute was feasible and created a vehicle for the final Act of Parliament.

Dr Evan Harris MP @drevanharris

I may have an absolutely fundamental disagreement with Evan over Leveson, but frankly without his tireless commitment to the campaign and sage advice the campaign would not have been such a success. A truly fearsome campaigner.

Lord McNally

Did what he said he would — as Justice Minister he delivered the first wholesale reform of the law since 1843.

Sadiq Khan MP @sadiqkhan

Labour’s shadow Justice Secretary really kept the pressure on the government to improve the Defamation Bill throughout the parliamentary process. Sadiq scored a big victory in reducing the ease with which corporations can sue for libel.

Paul Farrelly MP @PaulFarrelly

Paul founded the All Party Parliamentary Group on Libel Reform which helped coordinate sympathetic MPs to push for libel reform.

Lord Mawhinney

As Chair of the Joint Scrutiny Committee of the draft Defamation Bill, he oversaw a scrutiny process that enhanced and strengthened the Defamation Bill (rather than, as we feared, may have weakened it).

John Whittingdale MP

His Committee’s important report (Culture, Media and Sport Select Committee) into libel significantly increased the momentum in parliament for reform.

Honorable mentions: Lord Allan, Baroness Bakewell, Lord Bew, Peter Bottomley MP, Lord Browne, Viscount Colville, David Davis MP, Paul Farrelly MP, Rob Flello MP, Lord Grade, Dominic Grieve, Baroness Hayter, Julian Huppert MP, Lord Macdonald, Baroness O’Neill, Jack Straw MP, Lord Taverne, Lord Willis of Knaresborough, every MP who signed EDM 1636 and EDM 423.

The professionals

Every campaign needs people to actually do stuff. At the core of the campaign were 3 amazing groups you should support (English PEN @englishpen; Index on Censorship @IndexCensorship; Sense About Science @senseaboutsci). Here are their humans:

Tracey Brown, Jo Glanville, Jonathan Heawood (@jheawood), John Kampfner (@jkampfner), err me Mike Harris (@mjrharris), Síle Lane and Robert Sharp (@RobertSharp59).

Honorable mentions: Chris Peters, Padraig Reidy.

Oh, and a warning from history

Just a note of caution.

The Report recites in non-technical language the general criticisms of the present law, and lists them as complication, cost, uncertainty, stifling of public discussion, undue severity upon unintentional defamation and bias in favour of ” gold-digging ” plaintiffs.

That report was not Free Speech Is Not For Sale but the Porter Report of 1948 which recommended reform to the law of libel which culminated in the Defamation Act 1952. Sixty years on, after initial progress, reform was required once more.

One sentence from the Porter Report, as noted by Selwyn Lloyd MP in The Spectator’s archive, will stand out for seasoned Leveson-watchers:

The Report abhors what it calls “Group Defamation,” for example, the vilification of a particular race or creed or party, but considers that any attempt to go beyond the present law as to seditious libel would curtail free political discussion.

The Libel Reform Campaign essential reading list

‘Free Speech Is Not For Sale’ (November 2009)

http://www.libelreform.org/our-report

‘Reforming libel – what must a Defamation Bill achieve?’ (September 2010)

http://www.libelreform.org/news/471-reforming-libel-what-must-a-defamation-bill-achieve

‘Libel Reform Campaign – Evidence to Joint Committee on the Draft Defamation Bill ‘ (May 2011)

http://www.senseaboutscience.org/data/files/LRC_submission_to_Joint_Ctt__cover_note_2011_may_25.pdf

‘Libel Reform Campaign – initial analysis of the Defamation Act’ (April 2013)

http://www.senseaboutscience.org/data/files/Libel/Libel_Reform_Campaign_-_Initial_asssesment_of_the_Defamation_Act.pdf

Northern Ireland

‘Libel Reform Campaign – Evidence to the Northern Ireland Assembly’s Finance and

Personnel Committee ‘ (July 2013)

http://www.niassembly.gov.uk/Documents/Finance/Defamation-Act/written-submissions/Libel-Reform-Campaign-Defamation-Act-submission.pdf

‘Libel Reform Campaign response to the proposed Private Member’s Bill on the law of defamation in Northern Ireland ‘ (November 2013)

http://libelreform.org/images/lrcmikenesbitt.pdf

Alternative dispute resolution

‘Alternative Libel Project – Final Report’ (March 2012)

http://www.englishpen.org/wp-content/uploads/2012/03/Alternative_Libel_Project_FinalMarch2012.pdf

You can watch the delightfully archaic ceremony here from 15:33.

In the ceremony, the name of the Bill is read by The Lord Hill of Oareford, the Leader of the House of Lords, followed by the announcement “La Reyne le veult” (the Queen wills it) which is made by the Clerk of the Parliaments, an official of the House of Lords. With that statement, the Bill has passed through the entire parliamentary process. All that is needed is a commencement order to enact the legislation.

With the Defamation Bill, Nick Clegg’s public unease over the Communications Data Bill and the reform of Section 5 of the Public Order Act it has been a good day for free speech:

Best day for UK free speech ever?1. #Libelreform PASSED2. #Leveson DEAD3. Section 5 Public Order Act REFORMED4. Comms Data Bill DEAD

— Michael Harris (@mjrharris) April 25, 2013

Blogger Jacqui Thompson is now £25,000 poorer after losing a libel action against the chief executive of Carmarthenshire county council, Mark James. The judge found the posts on her Carmarthenshire Planning Problems blog to be defamatory and that she was engaged in an “unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other council officers”.

Yet while Thompson paid for the case out of her own pocket, the ratepayers of Carmarthenshire paid for the chief executive’s libel action. In these straitened times, is it really fair that taxpayer’s money is being used to fund a libel case?

Carmarthenshire council is not alone. South Tyneside council is paying for its chief executive and council leader to bring proceedings against one of its own councillors. In South London the Durand Academy, a primary school, has on multiple occasions funded libel claims. This is a live debate with the government’s Defamation Bill (the first wholesale reform of our archaic libel law since 1843 ) currently passing through parliament after a long fight by the Libel Reform Campaign. An amendment tabled in the House of Lords by the Labour party, with support from influential Tory Peer Lord McWhinney and Liberal Democrat Peer Anthony Lester will (if passed by the Commons) block corporations and public bodies from suing individuals for libel, unless the libel has caused “substantial financial harm”. However an important loophole remains.

Public bodies themselves cannot sue for defamation. Derbyshire county council vs. Times Newspapers Ltd (1993) rules out public bodies from suing for libel. Lord Keith’s judgement makes clear the importance of “uninhibited public criticism” of democratically elected and public bodies.

The remaining loophole is the judgement does not prevent public bodies from using taxpayer’s money to fund libel actions on behalf of their staff.

In the Carmarthenshire case, Mr Justice Tugendhat reiterated the importance of the bar on public bodies suing directly, and emphasised the greater latitude members of the public had in criticising public bodies, but did not believe that allowing councillors or officers of a local authority to sue for libel would infringe the right to freedom of expression. “The decision of the House of Lords is binding on me. But in my judgment there is nothing in the suggestion that it is contrary to Art 10 that a member or between officer of a local authority should be able to sue for libel,” he said.

He also refused to restrict the ability of public bodies to use taxpayer’s money to pay for libel actions on behalf of their employees saying that such indemnities needed to be challenged: “There are procedures by which the grant of an indemnity by a council to an employee in respect of the costs of litigation can be challenged.”

Yet the procedures to challenge are complex and only relate to whether the local authority is funding the libel action to circumvent the Derbyshire principle. The default position in law established by Mr Justice Sullivan in Comninos vs Bedford borough council is that councils can fund libel actions on behalf of their staff – unless challenged. Local bloggers can now find themselves sued by a council employee backed with the full financial weight of the local authority, and yet will only know whether this is legal or not if they challenge this funding separately. It’s hard to see how any blogger or citizen critic could fund such a challenge unless they have very deep pockets indeed.

These indemnities have a corrosive effect on local democracy. Local authorities, sensing the controversy over using taxpayers’ money to sue their own citizens, are not transparent about the costs of these claims.

I tabled a freedom of information request to Carmarthenshire to find out how much it had spent on the libel action. It refused to disclose this information, citing an exemption. From a wider request, I did find out that the council spent £891,433 in legal fees in 2012. This is the same county council that is making 450 people redundant and closing down training services for disabled people.

The defamation bill will continue the bar on public authorities directly suing their critics for defamation. Yet, without action to stop them directly funding libel actions on behalf of councillors or officers, the power and resources of the state can still be used to silence citizen critics.

It is self-evident that public servants should be able to sue for defamation if directly and unfairly criticised, but it is not fair to expect taxpayers in this period of austerity to pick up the bill.

This article was originally published on the Guardian Local Government Network on 2 April 2013.

Gavin Phillipson is right to point out the failures in journalistic standards that led to damage to the reputation of Lord McAlpine. But he is wrong to extrapolate from this single case a misleading analysis of how the Libel Reform Campaign’s public interest defence would work in practice. Since the beginning of our campaign, claimant lawyers have raised the scenario of a senior figure smeared as a paedophile as rationale to defend the status quo. That the McAlpine scandal has happened right in the middle of the defamation bill passing through parliament gives us a good opportunity to say why the status quo actually does very little for those defamed.

This is a serious case. Lord McAlpine was not named by Newsnight, nor was he named by a single national newspaper or national broadcaster. However, the phenomenon known as “jigsaw identification” led to the unjust damage to McAlpine’s reputation. The public admonishment of poor journalism at the BBC, with an admission they got it wrong, has done more than anything to repair McAlpine’s reputation. Does anyone — with the exception of his lawyers — believe a cheque for damages will do more than this?

In fact, because our law is so unwieldy and costs 100 times the European average, it acts as a huge disincentive to sue. If Lord McAlpine were a primary school teacher or a nurse, it’s likely that the huge costs of taking on a defamation action (often a six figure sum, if not more, with no legal aid) would act as a deterrent, giving no redress whatsoever to repair reputation.

The Libel Reform Campaign has proposed a public interest defence that, as Phillipson pointed out, would give claimants the right for allegations to be “promptly clarified or corrected with adequate prominence”. If you’re a nurse, for the first time you get guaranteed redress.

Our defence also provides for reckless disregard for the truth of the allegation. If you publish a defamatory comment claiming that someone is a paedophile, without any knowledge of the underlying facts of the case (which would include social media users who named McAlpine), you are clearly displaying reckless disregard for the truth of that allegation. Under our proposals you would still be legally liable.

There is the bigger picture. The reason our clause has been tabled in parliament with cross-party support is that the status quo chills honest debate in the public interest. From the dumping of toxic waste by multinational corporations, rampant tax evasion by major corporations, the dangers from quack medicine, the exposure of international mafia gangs and the funding of terrorism – our current libel law’s lack of a serious public interest defence has chilled publication on all these issues.

Cardiologist and libel reform campaigner Dr Peter Wilmshurst was sued for pointing out possible problems with heart devices. Over the four years he fought his case, patients continued to have these devices implanted in their hearts. Some needed extensive surgery to have them removed because of the fault. This is why we propose our public interest defence. The status quo is totally ineffective and protects the rich but fails the poor – while allowing legal bullying to suppress information that will protect lives.

Over the last decade, from the banking crisis that caused our economy to implode, to the MPs expenses scandal that rocked the establishment, we can see that too little information has been exposed rather than too much. Our libel laws protect few. With support from over 60,000 people and over 100 civil society organisations, it’s time for a public interest defence in libel.

This post was originally published on Guardian Law.

Several local authorities are spending huge amounts of money on legally dubious grounds pursuing libel actions

In early February, Carmarthenshire county council confirmed that its chief executive Mark James will sue local blogger Jacqui Thompson for libel. The decision was made by the council’s executive board, and indemnifies James from the costs associated with the legal action.

The same local authority that is switching off 5,000 street lights as a result of cuts to its central government grant is pursuing a libel action that is likely to cost a six, maybe even seven, figure sum. The case is symptomatic of a wider trend where local authorities are becoming increasingly intolerant of local bloggers and using their legal, press and even security teams to hit out at vocal critics.

The Carmarthenshire dispute is long-running. It began with a libel action between Kerry and Jacqui Thompson from Llanwrda and the local authority’s director of planning Eifion Bowen, after the couple were sued for circulating defamatory letters, though they were never published in the wider media. The Thompsons apologised to Bowen at a hearing in October 2007, when they were given 12 months to pay legal costs totalling £7,000.

In 2008, the county council controversially changed its constitution so that public money could be used in future libel actions; an FOI request revealed its total legal costs from external organisations (solicitors and counsel) shot up from £364,369 to £711,832.

The legal authority for using public money for libel actions is questionable. The Derbyshire county council v Times Newspapers Ltd judgment of 1993 specifically rules out local authorities from suing for libel. As Lord Keith said in the judgment: “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”.

This ruling was derived in part from earlier case law, which asserts the fundamental importance in a democracy of citizens being able to express their views – even offensive or distressing views – about their government, at national or local level.

While elected members and officers can use local authority funds to defend themselves if sued for libel in the course of their duties under the 2004 Local Authorities (Indemnities for Members and Officers) parliamentary order, it specifically does not allow members to bring actions as claimants. And though Derbyshire specifically rules out local authorities and elected members suing for libel, it is less clear on councils funding libel actions brought by individual officers.

Wesley O’Brien, a solicitor at Bevan Brittan, pointed out in Local Government Lawyer magazine that local authorities can fund a claim brought by an individual officer and assist them if it can justify this expenditure. He said: “As the law currently stands, a local authority can fund a claim brought by an individual officer [council staff member] and it can also assist an officer in defending such a claim, where it considers such public expenditure to be justified.

“The position is, however, different for members where a local authority is only entitled to fund a defence, but not a claim … the only condition is that the statements made must refer to and be defamatory of the individual concerned.”

This isn’t the only case where taxpayer-funded local authorities are using their resources to take on vocal critics.

South Tyneside council, while making £35m worth of cuts in its 2010-11 budget, has admitted to Index on Censorship that it has used in excess of £75,000 worth of public money to launch a legal action by the council’s leader Iain Malcolm, fellow Labour councillor Ann Walsh and independent David Potts, alongside borough regeneration boss Rick O’Farrell.

Originally, South Tyneside told us that total case costs would not rise about £75,000, but the council has since admitted costs have rocketed into six figures. “The legal costs of this case have passed the £75,000 as a result of additional costs incurred to defend an ‘anti-Slapp’ motion … our American lawyers have advised that these costs total $64,370 and they have submitted a claim for this amount to the court in California. We are advised that the claim will be considered by the court at a hearing in February 2012,” it explained.

South Tyneside’s constitution requires cabinet sign-off for items over £75,000 – which of course creates a direct conflict of interest as Malcolm is a claimant in the case. However, the press office declares cabinet sign-off is not required.

As the case is being pursued in the Californian courts, it seems that the Derbyshire principle does not apply. But the council would find it hard to argue in the English courts that funding a case brought by an elected member did not breach either the Derbyshire principle, or the 2004 parliamentary order, leading to serious questions as to why the legal action has been taken.

These troubling recent cases, demonstrate the need to include a prohibition on all public bodies from suing for libel, as recommended by the Libel Reform Campaign, a coalition of Index on Censorship with English Pen and Sense About Science. The government is currently considering including the draft defamation bill in the next Queen’s speech, with thousands across the country writing to MPs to urge them to do so. If it does, ensuring that the resources of public bodies cannot be brought to bear against vocal opposition should be a serious priority.

Local authorities that open up access to information and learn from their critics will in the long-run build trust with their citizens. Councils that use public money to silence local voters are on a hiding to nothing – thanks to the Freedom of Information Act, we know what they’re spending, and how their decisions are being made. The old control impulse is strong, but it’s hard to justify to taxpayers in South Tyneside that their money is being thrown at lawyers in a Californian court so one councillor can sue another.

This article originally appeared in the Guardian on 14 February 2012.

This article originally appeared on Left Foot Forward

A rather traditional battle between a tabloid newspaper and a rich individual seems to be concluded (unless, of course, it goes to appeal). Max Mosley, son of fascist Oswald Mosley, and the former head of Formula 1, wanted to force newspapers to give prior notification when they could be in breach of an individual’s right to privacy.

He is no stranger to arguments about free speech. In 1961, he campaigned for “Free speech for fascists”, when his father’s invitation to speak at the Oxford Union was opposed.

Mosley launched his current case after the News of the World published allegations that he cavorted with five prostitutes in a basement flat in London in a Nazi-themed orgy. Mosley’s assertion that the UK government breached his human rights by not insisting that newspapers gave prior notification before publication was rejected by the European Court of Human Rights.

It is undoubtedly a success for press freedom and one backed by Index on Censorship who made a submission to the Court.

Prior notification would be disastrous for investigative reporting – by national newspapers or NGOs. It would lead to a situation where a local newspaper wanting to publish a fact-checked story on councillors embezzling public funds would have to tell the offenders before the story is published.

Immediately the councillors would take out an injunction and no local paper would have the £60,000-£100,000 that media lawyers estimate it costs to overturn such an injunction. The story would be buried – and voters none the wiser.

This rule isn’t just about the press: human rights NGOs would be affected too. Human rights NGO Global Witness indicated that if Mosley’s rule was brought in, they would not be able to publish on topics such as blood diamonds, and notification would put their staff and sources in danger. And European Court judgements aren’t just about the UK – oligarchs in the Russia and the Ukraine could use this tool to muzzle the little independent media left in these countries.

It is worth pointing out what the judgement did and didn’t say.

Trevor Kavanagh of The Sun has spun it as:

“You don’t need to be a tabloid journalist to celebrate orgy-loving Max Mosley’s crushing defeat by the European Courts.”

But this isn’t an unmitigated triumph for free speech. Mosley won his case against the News of the World for breach of his Article 8 right to privacy and received record damages of £60,000. The European Court did not find these damages excessive stating:

“…no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant.” [72]

The Court also made a clear distinction between the ‘public interest’ which would merit a defence under Article 10 of the ECHR (the right to free expression) and ‘lurid news’ (including tabloid gossip) which would not be protected under this defence:

“…reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life…

“In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life…

“Such reporting does not attract the robust protection of Article 10 afforded to the press.” [114]

The Court did, however, rule out pre-notification. It argued that:

“…any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification” [128]

And if set at a ‘punitively high level’ these fines would in effect be incompatible with the Article 10 right to freedom of expression. Looking at this and the wider public interest, the Court concluded that an individual’s Article 8 rights are not violated by the absence of a requirement on the media to notify the individual in question prior to publication.

This does not mean that newspapers who do publish stories that violate an individual’s privacy can get away with it. Huge damages are here to stay. But the long-established custom of “Publish and be damned!” is intact, and as such the British media will collectively breathe a sigh of relief. The British government will be pleased too, as the Court’s emphasis on the “margin of appreciation” (the legal space for national law within the ECHR) means they won’t be set for a damaging battle with “foreign judges” (in the technical language of our august media).

Hugh Tomlinson QC of Matrix Chambers says on the Inforrm blog:

“The press won the battle but the judgment confirms that it has lost the ‘privacy war’. The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved.”

This judgement comes as our privacy law comes under increasing scrutiny. The Daily Telegraph reported yesterday that there have been more than two million tweets breaching various ‘super-injunctions’. A twitter account (which you can easily Google and find – but would land Left Foot Forward in Court if mentioned here) published details of the use of six such injunctions.

Former Lord Chancellor Charlie Falconer said:

“If a point is reached as a matter of evidence when everyone knows who the injunctions are about then they become pretty pointless… It is concerning that people can do this and break the law. It sounds like it’s very difficult to make sure that injunctions like this are complied with.”

Tory MP Claire Perry, never knowingly in defence of free expression, added:

“This is making a mockery of the existing law and we need to make sure thatthe law catches up with the technology.”

In one aspect, I agree with Max Mosley who said, on last night’s Newsnight, that there is little difference between a pub conversation and the stream of consciousness that Twitter represents. But for politicians the anarchic atmosphere of the internet presents a threat. There is little doubt that curbs on internet freedom are in the pipeline, whether Ed Vaizey’s threatening noises on copyright infringement, or perhaps as touted yesterday by Tory MP Zac Goldsmith, a Privacy Bill.

Net freedom will come under attack. Press freedom is now curtailed due to Strasbourg jurisprudence on privacy. What’s complex is the debate over individual privacy is not clear cut. Whilst many people would argue that Max Mosley’s private peccadillos are his own personal business, and his alone, few would wish to see those breaking super-injunctions via Twitter found in contempt of Court and jailed. As the European Court found, effective sanctions that uphold privacy may be in breach of the fundamental right to freedom of expression.

Rights are often balanced – the very difficult question for Parliament is how to balance free expression and personal privacy.

I have recently written a chapter on libel law reform for Alex Deane’s excellent book on civil liberties in Britain available from Amazon here.

After Nick Clegg’s speech on civil liberties on Jan, I wrote this piece for Left Foot Forward:

This morning, Nick Clegg made a speech on civil liberties, the sound of the left gloating as the deputy prime minister stumbled over control orders drowning out his critique of Labour’s authoritarian instinct; Mike Harris, a contributor to Big Brother Watch’s ‘The state of civil liberties in modern Britain’, reports

The gloating is an instinct I remember well when I worked for a Labour MP as our government attempted to bring in 90 days’ detention. Even my meagre bag-carrying at the time made me feel complicit in something immoral. Labour friends would shrug their shoulders in bars as we discussed where it all went wrong: the party who had Roy Jenkins as home secretary also managed to accommodate former Stalinist John Reid.

But Labour was possessed by a group-think that imagined the civil liberties agenda was a minority pursuit by a radical Hampstead fringe; that to be in favour of protecting liberties against baser gut instincts was, in itself, a sign of moral weakness: of political frailty.

The reference to John Reid’s Stalinism is deliberate. Many of our friends in the Labour movement’s politics arose not from Methodism but Marxism. Their vision for government was not as a regulator or provider of goods, but as a totality, the State as the rational omnigod. As Francesa Klug said at last year’s Compass conference this

“… intellectual tradition never really saw the problem with the state – provided it was in the right, or rather left, hands.”

It was Ed Miliband’s dad, Ralph, who warned socialists of the danger that the state had it in the potential to be an oppressive force in ‘The State in Capitalist Society’. Whilst Labour did much in government to make Britain more tolerant, we also made painful mistakes.

Clegg opened his speech with a powerful salvo, which is worth reading:

“Ed Balls has admitted that, when it comes to civil liberties, Labour got the balance wrong. Ed Miliband has conceded that his government seemed too casual about people’s freedom.

“But there was nothing casual about introducing ID cards. Nothing casual about building the biggest DNA database in the world, and storing the DNA of over one million innocent people.

“Nothing casual about their failed attempts to increase the time a person can be detained without charge from what was then 14 days up to 90; something Labour’s new leader voted for.

“They turned Britain into a place where schools can fingerprint your children without their parents’ consent… Where, in one year, we saw over 100,000 terror-related stop-and-searches, none of which yielded a single terror arrest.

They made Britain a place where you could be put under virtual house arrest when there was not enough evidence to charge you with a crime. And with barely an explanation of the allegations against you. A place where young, innocent children caught up in the immigration system were placed behind bars. A Britain whose international reputation has been brought into question because of our alleged complicity in torture.”

In the last year of a Labour government, 1,000 children of asylum seekers were imprisoned. Yet, as a party there is no mea culpa. Many of the myriad special advisers and ministers who advocated ever more authoritarian powers are still in place. I still hear, “they aren’t talking about it in the Dog & Duck”, as a catch-all phrase that is fairly sinister.

People don’t focus on their human rights until they are taken away. The majority of Belarusians are currently getting on with their lives in Europe’s last dictatorship. It’s the 28 in solidarity confinement in a KGB prison in downtown Minsk for whom human rights are important.

There’s no doubt that Nick Clegg’s attempt to demonise Labour today was political posturing. He ignored Labour’s introduction of the Human Rights Act; that Labour were in office after the talismanic episode of 9/11; that civil liberties are dependent in a democracy on public support (which often wasn’t there). But rather than receiving Nick Clegg’s speech with jeers, Ed Miliband needs to reappraise the party Labour ought to be.

As I wrote before for Left Foot Forward, Labour is toxic to many of the people it ought to be a natural bedfellow of. Many Muslims in places like Oldham East and Saddleworth voted Liberal Democrat not just because of Iraq, but because they felt victimised. Many of the much-derided ‘Hampstead liberals’ are some of the five million votes Labour lost between 1997-2010.

Newspapers that ought to be on our side turned against us. It’s no coincidence that it was a liberal party, the Liberal Democrats, who opposed our authoritarian streak who made the largest electoral gains in 2005 and 2010. And it’s a surprise that we didn’t take this lesson on board. For Labour to win the election in 2015, we need to take a look in the mirror.

This article was originally published on Left Foot Forward, during the Libel Reform Campaign’s lobbying of Labour party conference.

“I won’t let the Tories or the Liberals take ownership of the British tradition of liberty; I want our party to reclaim that tradition” – Ed Miliband’s leadership speech was a strident attempt to detoxify the Labour brand from the widely perceived authoritarianism of the Blair–Brown years.

It’s not an original opinion to stress that Labour’s record on civil liberties was patchy at best. There was a schizophrenic schism between big ideas such as the Human Rights Act and the Equalities Act, and then a knee-jerk reactionary impulse especially when it came to the detail of legislation.

So the party that embedded Strasbourg jurisprudence into UK law via the Human Rights Act (a progressive act hated to this day by the Tories), also attempted to bring in 90 days’ detention, locked up asylum seekers including children, and restricted the right to protest in Parliament Square.

Jack Straw embodied this in 2000 with his dyspeptic gut-reaction to the judiciary when it argued against him abolishing the right to trial by jury with his attack on “woolly minded Hampstead liberals”, whilst in the same speech defending the Human Rights Act. Triangulation failed – simultaneously sending scores of small ‘l’ liberals to the Liberal Democrats, whilst those we were attempting to court abandoned us (especially C2/DE voters).

Our attempts at populism fell at a significant hurdle: they weren’t popular. Public support for ID cards fell from around 85% per cent of people backing ID cards (MORI) in the weeks after 9/11 to under half by late 2008 (ICM). Support for 90 days’ detention fell to just 20 per cent of voters by November 2005 (ICM), yet as unpopular as this was, Gordon Brown went back to this issue in Parliament in a bizarre Pavlovian moment of reaction.

It was great to see Ed distance himself from this yesterday: but we must always remember that British liberties were hard fought and hard won over hundreds of years. We should always take the greatest care in protecting them. And too often we seemed casual about them. Like the idea of locking someone away for 90 days – nearly three months in prison – without charging them with a crime. Or the broad use of anti-terrorism measures for purposes for which they were not intended.

As Ed develops a clear narrative that endorses civil liberties, it would be good to see a strong Labour position on reforming our libel laws to protect free speech, protecting the right to protest and freedom of association, prison reform, and looking again at anti-terror legislation. Ed’s speech was a good starting point for Labour to revalue where we stand on civil liberties, and a call to those who left our party over our authoritarianism to come back home.