Lord Lester's libel bill

When you consider how few people love the UK libel laws (mostly libel lawyers, you'd guess) and how important they are in the lives of journalists, writers and artists, you'd have thought Lord Lester's bill to reform them would have generated far more debate than it has.

Lawyer and Guardian Readers' Editor Siobhain Butterworth has an intelligent account and critique of the bill ... while at the same time lighting up the obvious deficiency in the debate: that it's the media, for the time being, holding the ring, creating whatever scrutiny there is, defining the terms of that scrutiny while at the same time having the greatest continuing interest in a particular outcome.

Imagine BP holding the ring and defining the terms of the debate over environmental protection. Quite.

The bill - a private members bill, but one which some think stands a better chance than most of making it to the statute book, even if in a revised form - tackles some of the current laws' deficiencies head on, body swerves others. It has its second reading in a couple of weeks time - 9 July.

Biggest swerve is that this bill doesn't do what many newspapers and freedom of information campaigners wanted - reverse the burden of proof. In a libel action, it's assumed the words complained of are defamatory unless the defendant can show otherwise. That's not how other civil actions work and, newspapers claim, makes it easy to sue and perilous to defend.

On the other hand, the bill proposes that, unless it's decided otherwise, a libel action should be heard by a judge sitting without a jury. Often, newspapers argue, a plaintiff's lawyers will string out a footling case knowing a jury is more likely to find against than for the paper ... especially one that has form on fibbing.

According to Lord Lester, his bill leans in favour of (newspapers') free speech - so, for example, common law privilege (aka the Reynolds' Defence) would be renamed as 'responsible publication', codified and, effectively, made more available ... though by ditching that pesky requirement that someone whose reputation was being trashed should have an unqualified right of reply.

And simplification; so 'fair comment' would become 'honest opinion' (honest=??) and 'justification' would become 'truth" (whose truth?).

The biggest absence in the debate is the public's; in this, the media can't argue that it is the public's voice. And you have to wonder how many out there who are not journalists would nod approvingly at Lord Lester's admission that he is:

"more keen on free speech than reputation".

Roy Greenslade sums up the problem. It is:

"finding a balance between free speech and the protection of reputations".

But I wonder if non-journalists would accept that this bill strikes that balance, since, according to Roy Greenslade again:

"It will allow for journalists to make defamatory statements or to be inaccurate as long as they can show they acted responsibly on behalf of the public."

And we know how slippery and evasive that definition of 'on behalf of the public' can be once it gets into journalists' hands.

Journalists and media lawyers talk a lot about the 'chilling' effect that our current libel laws have - that's the effect by which a newspaper or broadcaster feels or is actually constrained from publishing a story by the fear or threat of a libel action.

The consensus on the media side of the fence is that journalists should be protected in their hot pursuit of a story ... even if that story turns out, in the end, to be untrue and to have trashed its subject's reputation beyond repair; free speech's collateral damage ... with all the shrugging callousness that that phrase captures.

Even though many in the media think Lord Lester's bill is too 'pragmatic' and should go further, it does, through codifying the Reynolds' Defence, for example, and by lifting the bar on what it is that the person who believes they've been monstered has to show, deliver much of what they want.

But what about the public? Where's their voice? Isn't there the possibility, at the very least, that those who have no self-interest in all of this believe that that 'chilling effect' is no bad thing; that the media shouldn't be able to trash reputations in the heat of the journalistic moment; and that the possibility/threat of legal sanction might, in the wider public interest, possibly do more good than harm?

This is the real problem - and one that's replicated in other areas of journalism. Like privacy laws or entrapment.

How do we ensure that a bill which protects the best in journalism - that means that, for example, bullies like Robert Maxwell or Trafigura can't stifle honest, responsible, genuine public interest journalism - doesn't also licence the worst?

Even with current libel laws, which the media believe are stacked against them, the Express and Star newspapers somehow found themselves - unchilled and unconstrained - able to trample the McCann's reputation not once but over 100 times. And they weren't alone.

The question I'd be asking if I weren't a journalist and up to my neck in self-interest is this: how can the law be changed to protect responsible journalists who have a regard for accuracy, truth, fairness and the genuine public interest without also enabling the worst practices in what is already the least trusted press in the world?

And the question I'm asking as a journalist is: how do we make sure the public's voice is heard as loud as the media's in what remains of this debate?