4 minute read
Closing Argument
by 256 Content
Stuart Gilhooly SC is a partner at H.J. Ward & Co. Solicitors. He is a former President of the DSBA and former President of the Law Society
New Defamation Laws Could Cause Serious Harm
Nobody wants to go back to the Seventies or the Eighties. Apart from the music and the football -– they were a grim time. Huge inflation, poor standards of living followed by mass emigration. Not one for rose-tinted glasses if you were trying to make a living.
But while the 21st century has improved the lifestyles of most people in this country, it is sometimes hard not to look back at a time, not so long gone, when the ordinary citizen mattered. When the working classes had a voice and mob social media wasn’t able to run riot.
Of course, that was a time when bishops held sway and we rightly feel that we are well rid of that influence. But have we replaced the church with worship at the altar of big business?
No one doubts the importance of modernisation and certainly investment in the court system would be a massive benefit but do we have to kow-tow to the business community on every issue even if it is to the detriment of our citizens?
This column has spoken ad nauseam about the effect of massively reduced damages on the average injury victim and the last column spoke at length about how access to justice was becoming more remote rather than seeing any improvement.
The latest development in the seemingly neverending erosion of consumer rights is the proposed changes in the laws of defamation. The headlines have been dominated by the suggested abolition of juries and the SLAPP provisions to stop the abuse of process in defamation litigation.
The report underpinning this review, which was necessary under the 2009 Defamation Act, was broadly welcomed and this column has yet to see any criticism of any of its suggestions.
While this would usually indicate a set of reforms which are universally acceptable, it must be caveated by the environment in which they arrived. First, the nation (and most of the rest of the world) has been preoccupied by a war in Ukraine and its global consequences.
However, just as importantly, media has not exercised a critical faculty on an issue for which it has only ever taken one side. Indeed, the only critical commentary emanated from leader writers opining that the reforms didn’t go far enough.
And this is where it gets interesting. While the issue of juries and the damages they award has undoubtedly created unnecessary litigation over the years, a live debate over whether the draconian solution of removing them altogether is appropriate needs to be had and should not just be presented as an inarguable fait accompli.
But the real stealth assassin hidden away in the middle of the report is the proposal to introduce a new threshold for recovery of damages in what are known as transient defamation cases or more commonly “retail defamation.”
These are cases that typically arise where a person is falsely accused of shoplifting.
This happens many times a day and most people brush it off and take no notice of it. However, there are certain occasions when the accusation is so serious, brazen or subsequently ignored by management that the victim seeks recompense for the embarrassment and trauma felt in what is usually a small, close knit community.
Case law has already set the burden of proof against the Plaintiff at an extremely high level by the requirement to prove malice and thus escape the regular defence of qualified privilege.
However, this is not enough for the highly influential big business lobby who have persuaded the review group that in these cases only, “serious harm” must now be proved in order to recover damages.
The media lobby had sought this requirement for all defamation cases but the report has recommended that it apply only to retail cases.
The rationale for this distinction is not properly explained in the report. In both cases, it was felt that such a requirement may create constitutional issues and at the very least would increase the costs of litigation in this area.
The only conclusion this column can reach is that big business matters and average shop-going consumers don’t. The report is clear that pressure from business lobbies was a factor in its thinking.
The argument will no doubt be made that proving serious harm shouldn’t be an onerous burden. Well, the case law in the UK suggests otherwise. Whereas personal injuries can be proven by medical evidence, how does an ordinary Joe Citizen prove serious harm to their reputation and standing in the community? Are we to have the unseemly sight of local witnesses testifying of their lowered view of the Plaintiff?
It is another example of the insidious erosion of what were once seen as basic human rights, in this instance, the right to a good name.
We need to produce a modern, functioning commercial legal system but not at the expense of the person on the street. P
