Libel - A chilling effect on free speech

In the case of Derbyshire County Council v. Times Newspapers Ltd. and Others, [1993] 2 W.L.R. 449 the Courts declined to allow a local authority to sue for libel. They feared that to allow government bodies and political parties to sue for defamation "must inevitably have an inhibiting effect on freedom of speech"

But individuals can use English libel law to intimidate and silence their critics. The BBC, in a classic example of English understatement said about Robert Maxwell - "Many people cowered from criticising him, not least because of his readiness to confront his critics in the libel courts." Criticism of the man was stifled during his lifetime by his aggressive use of threats of an expensive legal battle. It didn't take long for editors of publications to avoid the risk of upsetting him.

The issue became a matter of international concern as a result of gagging orders which meant that national newspapers were not able to report parliamentary questions. [The Trafigura Affair, 2009]

A report in the Guardian outlines how Jack Straw, the current lord Chancellor, intends to address the issue. It is available here.

Super-injunctions Debate

Westminster Hall
Wednesday 21st October
2.30 pm - 4.00 pm

Effects of English libel law on the reporting of parliamentary proceedings.

Issues arising from last weeks row about attempts to gag Parliament.

Guardian article on how super-injunctions are used to gag investigative journalism here.
Roy Greenslade article here.
A view from the States (The Nation) here.

Gags

An extraordinary row has gripped Westminster and the online community. This morning the Guardian reported

The Guardian has been prevented from reporting parliamentary proceedings on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights.

Today's published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.

The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations. The Guardian has vowed urgently to go to court to overturn the gag on its reporting. The editor, Alan Rusbridger, said: "The media laws in this country increasingly place newspapers in a kafkaesque world in which we cannot tell the public anything about information which is being suppressed, nor the proceedings which suppress it. It is doubly menacing when those restraints include the reporting of parliament itself."

The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that "whatever comments are made in parliament" can be reported in newspapers without fear of contempt. He said: "Four rebel MPs asked questions giving the identity of 'Colonel B', granted anonymity by a judge on grounds of 'national security'. The DPP threatened the press might be prosecuted for contempt, but most published."

The right to report parliament was the subject of many struggles in the 18th century, with the MP and journalist John Wilkes fighting every authority – up to the king – over the right to keep the Public informed. After Wilkes's battle, wrote the historian Robert Hargreaves, "it gradually became accepted that the public had a constitutional right to know what their elected representatives were up to".

The question can be found in today's Order Paper (Question Book) and is Question 61. I hope we will see today's parliamentarians as ready to stand up for freedom of speech as was the aforementioned John Wilkes.