As for what that test might look like, some elements that would be part of the test, as I see it, would be derived from the Daubert Standard, which is discussed here – http://www.ministryoftruth.me.uk/2009/10/15/simon-singh-and-the-daubert-standard/ – in the context of its potential relevance to Simon Singh’s case.

I think you misunderstand the point about ‘bubble bursting’, which is fair enough as its a pretty technical point.

To clarify, the Reynolds defence is effectively a claim of qualified privilege based on a ten point test set out by Lord Nicholls in the House of Lords ruling in Reynolds vs Times Newspapers Ltd.

The bubble bursting principle applies to the trial process and to the establishment of fact relevant to the case, so…

If a newspaper is sued for libel buts seeks to deploy the Reynolds defence then, at either trial or, more commonly, at a preliminary hearing, the newspaper will present evidence to the court in an effort to establish, as a matter of fact, that it complied with each of the ten points of the test and is, therefore, entitled to qualified privilege.

Once the evidence is presented, the plaintiff is afforded the opportunity to provide their own evidence in rebuttal of the evidence provided by the newspaper.

If the newspaper successfully establishes that complied with the ten point of the test, then it is a matter of fact that they published under qualified privilege. If, however, it fails on any point of the test then the bubble burst and that defence is not open to them.

The bubble bursting principle is not alternative to the Reynolds defence, which should actually be strengthened by incorporating it into statute, its merely part of the process by which the defence is established, or not, according to the facts of the case.

If the legal profession can invent super injunctions, it cannot be beyond the wit of man to develop super protections.

I have to be careful here, but attacking the British Woo Society and saying they are full of shit, should not, it seems to me to be legitimately actionable unless you take the truly oddly entrenched legalistic view that a group is an individual, with rights, etc.

Attacking an individual member of the British Woo Society and saying that Mr X is full of shit should be subject to individual action and be open to defences of ‘fair comment’ and ECHR Article 10. ‘Course Mr X might be right and this would come out in a judgement….

Mr Singh seems to me to have run up against this idea that an abstract is a real person.

And, frankly a Court of Law nor, dare I say it, a web site, is anywhere worth trying to resolve scientific debates.

Bearing in mind the Singh case (i.e., pseudo-science), but also that established “scientific” theories have been simply wrong, and that derided theories have been right (e.g., Plate Tectonics).

Excellent article.

Ré your comment at 25. Would you see a small claims tribual as the starting point for all libel actions, with no exceptions? For that would be useful in trivialising the imbalance that the powerful appear to have, without necessarily denying remedy.

As things stand, the Reynolds defence has been accepted as a possible defence against libel by the Court of Appeal- which helpfully even spelled out the steps a publication would have to take to successfully use such a defence. Unsurprisingly, the British courts have yet to accept that any publication has actually published a story covered by the Reynolds defence, so the protection it offers is theoretical rather than real.

‘Bubble bursting’ would mean that a (well-funded) newspaper could print unpleasant allegations against someone with less resources, and the defamed person would then face having to prove a negative in an expensive court action. A ‘Reynolds defence’ would commit the newspaper to thoroughly investigating the allegations first, including privately asking the person accused what they had to say: not perfect, but much more likely to protect the rights both of publishers and of genuinely libelled people.

Struck-off journalists would still be able to publish whatever they wanted, just (probably) not in a newspaper. Make journalist a protected title (like doctor or engineer) while you’re at it,

On the costs front, I think there’s also scope for exploring the idea of a small claims tribunal and an arbitration scheme, both of which would prove attractive to local/regional newspapers where the costs of a basic high court action are typically out of all proportion to the damages sought.

And, actually, we might have fewer libel actions against newspapers if the PCC weren’t such a bunch of ineffective tosspots.

Currently, people are bullied by the ridiculously high costs that are involved and will cave in to this pressure even if they have a good case to present.

Depends on the ‘private conversation’, doesn’t it? Private conversations by email are still considered ‘publishing’ from the point of view of libel, which seems like another problem with current libel law.

Or at least that there is sufficient evidence that a reasonable person could have believe there is a case to answer, but this brings us a long way from ‘proof’ in a legal sense because ‘sufficient evidence’, ‘reasonable person’ and ‘case to answer’ are so vague there will never be an agreement on what they mean.

Personally I find celebrity gossip vaguely repellant but that’s just personal distaste, not principle; on this, and a preference for real ale, I’m a snob. I’m not sure it should be a matter for the state.

I think the post helps to clarify that we could do with.
- Broad principles/objectives of reform which might command consensus
- Specific proposals (such as these) which meet these by particular responses to problems in the current system

There is no doubt that the issues will be contested, including some regressive moves. (Newsnight last night included a lawyer questioning Parliamentary privilege as a response to yesterday’s events!)

One part of that challenge is that the internet discussion will (compared to say mainstream media; legal; parliamentary) tend to be
- broader
- more libertarian
- more internet-focused (which is a good idea; there are emerging problems).

I think we lack forums for the type of political negotiation between types of perspective, which might help to prioritise and establish key messages about what should change much more concretely than is now the case.

My thought is that if more people tried to do what you have done here and put up “three changes I would like to see” we could try to develop a sense of how far liberal ngo, media, legal, political and blogosphere voices might agree on some points of consensus about reform/campaigning priorities, even while not agreeing on everything, and indeed agree on strategic/tactical/process points about how to pursue reform in practice.

I could imagine the Liberal Democrats in particular becoming one good site of engaged debate about tensions and trade-offs, where some of the liberal/libertarian and more ‘establishment’ liberal political/legal voices might engage over the details, though I acknowledge there are lots of centre-right and libertarian voices involved in this too.

And I would like to see some of us in the Labour Party get our party on the right side of a major civil liberties issue too!