Libel reform: freedom, censorship and debate

Posted on 15th Mar 2012 in Reviews

The stories that matter are the ones that go unheard. The threat of censorship is nothing new, but if we think that by living in a free country, with the right of free speech guaranteed by the article 10 of the European Convention on Human Rights, we don’t need to worry about censorship, then we should think again, argues Nick Cohen in You Can’t Read This Book.

Nick Cohen bookSubtitled “Censorship in an Age of Freedom”, Cohen’s book analyses a number of ways in which, in the contemporary free world, writers are deterred from speaking out about important matters. They are not necessarily deterred by laws or those who enforce them. Rather, they are silenced by fear.

One of the ways this happens is the risk of giving religious offence and, more potently, of arousing the violent anger of self-appointed religious fanatics. The so-called Rushdie affair (the Ayatollah’s fatwah and the fatal consequences which followed publication of Salman Rushdie’s novel The Satanic Verses in 1988) is an obvious example. “No young artist of Rushdie’s range and gifts would dare write a modern version of The Satanic Verses today,” Cohen writes, “and if he or she did, no editor would dare publish it.”

Offence is no offence, it’s sometimes said. There are obvious ways in which free speech ought to be subject to limits (shouting “fire!” in a crowded theatre is the usual example given; publishing details on how to make a dirty bomb is another) but the whole point about free speech is that, in principle, it remains free, whether you like it or not. “Freedom of speech includes the freedom to spout claptrap,” notes Cohen, “as regular surfers on the Web know.”

The freedom has significance in the commercial world as well: as Jacob LJ noted in L’Oréal SA and others v Bellure NV (No 2)[2010] Bus LR 1579, at paras 8-12:

8. My own strong predilection, free from the opinion of the Court of Justice, would be to hold that trade mark law did not prevent traders from making honest statements about their products where those products are themselves lawful.

9. I have a number of reasons for that predilection. First and most generally is that I am in favour of free speech—and most particularly where someone wishes to tell the truth. There is no good reason to dilute the predilection in cases where the speaker’s motive for telling the truth is his own commercial gain. Truth in the market place matters—even if it does not attract quite the strong emotions as the right of a journalist or politician to speak the truth.

10. The right to tell—and to hear—the truth has high international recognition. Article 19 of the Universal Declaration of Human Rights 1948 says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to … receive and impart information …” Article 19(2) of the International Covenant on Civil and Political Rights 1966 says: “Everyone shall have the right to freedom of expression; this right shall include freedom to … receive and impart information …” Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms says: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information …” Article 11(1) of the Charter of the Fundamental Rights of the European Union (OJ 2000 C364, p 1) says: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas …”

11. Of course the right of free expression (which clearly applies in principle to expression for commercial purposes, see para. 4.10.16 of Lester, Pannick Herberg, Human Rights Law and Practice, 3rd ed (2009), and the European Court of Human Rights cases there cited) cannot be and is not unqualified. But any suggested rule of law which stands in the way of people telling the truth, whether the context be political, commercial or otherwise, ought to be scrutinised with care and justified only on the grounds of strict necessity.

12. Any such scrutiny should consider not only the right of the speaker but also of his hearer. For the right of free speech extends not only to those who wish to tell the truth, but also those who would wish to hear it—the words are “receive and impart”. In terms of the market place the hearer’s right to receive information translates into the right of the consumer to make an informed choice about products on the market.

Another obstacle is the risk, often faced by whistleblowers, of losing your job. Cohen describes how the current law appears to lock would-be whistleblowers in a Catch-22: the law says employees should first notify their own bosses of their concerns, unless they have a reasonable belief that if they do so they will suffer a detriment; but if they don’t go to their bosses, they will be unlikely to have any evidence of what would have happened to them if they had done, to back up their “reasonable belief”.

It’s not just criminality or negligence that needs to be exposed, Cohen argues. If some of the people working in the big financials had not been intimidated against speaking out, there is a good chance the worst of the financial crisis might have been averted. That doesn’t of course explain the Nelson eye of the regulators and the government departments who quailed to quiz the goose that laid such golden eggs. (Golden eggs that ultimately proved so addled.) And it doesn’t deal with the way some commentators who did speak out were dismissed as cold-feet Cassandras or moaning minnies. To be proved right about something so catastrophic is not exactly heart-warming either. But a few more heroes like them could have woken the world up to the bubble it was living in.

Another obstacle to free speech cited by Cohen is the power of the rich, whether corporate or individual, to silence critics by way of the law of libel. In this respect, he is pushing at an open door. Nor is he alone is doing so. The Libel Reform Campaign has been lobbying for change in the wake of cases such as that of Simon Singh (see British Chiropractic Association v Singh [2010] EWCA Civ 350; [2011] 1 WLR 133) as a result of which it became clear that even scientific debate was being stifled by the law of defamation. Cohen cites other instances, and connects the issue with what he sees as an imbalance between the protection of privacy (especially for the rich) and the right to free speech and the rise of the super-injunction. He adds a good deal of heat to what is already a heated debate.

But the present government is aware of the need to reform the law of defamation. There’s a draft Defamation Bill which was considered by a Joint Scrutiny Committee last year. Recently, the government published its response to the committee’s report. Now the Libel Reform Campaign has published its response to the government’s response.

On 15 March the Libel Reform Campaign held a rally at Middle Temple, with advertised speakers set to include Simon Singh, Lord McNally and Sir Stephen Sedley. Did you go to the rally? Please add a comment and say what you thought of it.

Meanwhile, do read the book. It’s couched in urgent and sometimes overheated prose, but it’s a matter of urgent interest to anyone who believes that they live in a free country.

Nick Cohn’s book is published by Fourth Estate and costs £12.99 — or £7.79 from Amazon.