Why the press should be free to slander

Back in 2011 the phone hacking scandal which led to the demise of the News of the World newspaper had politicians take aim at the free press. The subsequent Leveson Inquiry resulted in Parliament passing legislation which put pressure on the UK’s newspaper publishers to submit to government oversight in the form of a state press regulator; however, instead of doing so, most newspapers chose to sign up to a new independent regulator, the Independent Press Standards Organisation (IPSO), thereby defying Parliament’s wish to put an end to the independence of the press in the UK. But included in Section 40 of the Crime and Courts Act 2013 were provisions, as yet un-invoked, which could give politicians the upper hand and have far reaching consequences for the free press – and now Theresa May’s government is signalling that they may bow to pressure to trigger the measure.

The Section 40 provisions dictate that the publisher would pay legal costs for both themselves and the plaintiff in a libel case, regardless of whether they win or lose the case, unless the judge decides this would not be “just and equitable in all the circumstances”. In other words, anyone who takes libel action against a newspaper can do so without running the financial risk of having to cover the cost of in case they lose. When squaring off in court, it is a core principle that both parties should have something to lose as well as something to gain. If the plaintiff is protected by law from the downside – the risk of having to cover the costs of the case – the very predictable result will be an avalanche of libel cases brought on spurious grounds. While the rules allow for judges to invoke the “just and equitable in all the circumstances” clause and put the costs back on the plaintiff, it is highly doubtful how courts will choose to interpret this. The stakes will be high for any newspaper choosing to print potentially libellous material, as the costs of most libel cases are far higher than the damages awarded. Newspapers may have lost the case even before it comes to trial.

But there is a way to be exempt from section 40: sign up to a press regulator which has the approval of the government-funded Press Recognition Panel. In other words, submitting to state regulation is the only way to avoid the crippling new rules. The regulation is supposed to be “arm’s length” from the government, but however it is constituted the state will be watching and influencing. This is another nail in the coffin of a free press in the UK, and the newspapers are predictably outraged. Scottish Newspaper Society director John McLellan calls it “government sponsored blackmail.” The chairman of the Independent Press Standards Organisation Sir Alan Moses said the free press is doomed if it is implemented. But it is not just the press who should be scared. Free speech, as we have said before, is an absolute; you either have it or you don’t. And in today’s Britain free speech is under attack.

In fact, rather than giving people who think themselves victims of libel a carte blanche to go after newspapers, we should be going in the opposite direction. Because the mere ability for anyone to bring a case for libel constitutes a violation of the right to free speech. Proponents of free speech should vigorously defend the right of slanderers, because repugnant behaviour as it may be, libellous or slanderous speech is not breaching any fundamental right. Civil liberties groups today are much more concerned about protecting the so-called “rights” of the victim of slanderous speech, rather than focusing on the fundamental right they are simultaneously denying the slanderer. Reputation is not a “right”, if it were then even factual degradation of someone’s reputation would be a violation. This is obviously not reasonable. Your reputation exists only in the mind of others; it consists of thoughts others have about you and clearly does not belong to you. It follows that the means with which your reputation is taken away from you, whether by truth or falsehood, is irrelevant. No right has been violated. Free speech on the other hand is a fundamental right: my words belong to me and any attempt to stifle my use of them violates my property rights.

If we can proclaim the rights of people who slander, then it would be easy to stand with those who print or say most other things, which are unlikely to be as mean or offensive. It would be a strong message that we protect free speech as an absolute, and it is why the government should think again and halt their efforts to take us even further in the opposite direction.

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