just to get this straight – you want to the burden of proof to rest entirely with the person doing the accusing? i’m not sure how much more fair that’d be.

I agree with the cheeseboard. There’s a good reason why the burden rests with the defendant in a libel case – he is the one who has made the accusation and it is up to him to prove that it is true. If I were to print an article accusing Sunny of sleeping with goats, it would seem extremely unfair to force Sunny to prove that he doesn’t. Forcing the claimant to prove a negative would be fundamentally contrary to the interests of justice.

It is already the case that the claimant has to prove damage, either by proving specific damage or by placing the libel in the list of libels that are assumed to cause damage by their nature.

How would the talk of a low cost tribunal work? A libel case is frequently complicated, often going to Appeal. That needs both a lot of background work, the time of a High Court judge and the work of a senior barrister. None of that is cheap. Tribunals work where it is a question of determining facts (such as employment tribunals) not where there are difficult questions of law to be decided. Far more sensible would be an arrangement where the costs of the winning party are not passed on to the loser – at least that way you provide a financial disincentive to both parties.

Agree entirely with regard to libel tourism. The law regarding publication needs a thorough re-think.

Agree with the above. If someone makes an accusation, they must be able to stand by it with evidence. The burden must lie with the accuser, not the accused.

As Jo Glanville said yesterday at the launch, burden of proof is undoubtedly the most controversial and difficult of the recommendations. The present situation, keeping it entirely with the defendant, is clearly unfair and counter-intuitive.

More on this later, but I’m late for a meeting.

From the report:

Because of the antiquated presumption of falsity, libel law requires the defendant to do all the heavy work of proving either the truth of their allegations; or that their publication constitutes fair comment; or that they were protected by some form of privilege – such as the absolute privilege of a parliamentarian, or the qualified privilege of some journalists. There is no requirement for the claimant to establish the falsity of the allegation; nor are they required to show that it has caused them any tangible harm or that the defendant has made any allegations recklessly or maliciously.

In order to bring a libel action, a claimant theoretically needs to have a reputation in the UK and to show that a statement is defamatory. However, it is very rare in practice for a court to reject a claim. With no requirement on the claimant to prove that their reputation has actually been damaged, their threat of a libel action, even if a bluff, can be enough to silence journalism that may be in the public interest. It is this, above all, which gives libel its unique chilling effect on free speech. In most other jurisdictions in the world, it is the claimant’s responsibility to show falsity. To remedy this, we recommend that the claimant should have to demonstrate damage in order to bring a libel action. It will no longer be enough simply to claim that a reputation has been damaged, but it will be necessary to demonstrate that damage has been caused.

We also recommend that the claimant be required to provide evidence of falsity or unfairness when they bring a libel action. This reform would reverse the burden of proof, bringing English libel law up to global standards. We recognise that there are cases where it may be impossible for a claimant to provide evidence of the falsity of an allegation and in these instances the defendant may be required to bring evidence supporting the truth of what they have written.

Hope this helps. Crucially, its not simply a case of burden of proof of the original accusation, but burden of proof of damage too. If there is no way to prove a negative, a court would recognise that. Perhaps simply a testimony from Sunny and the goat would be enough to show falsity. But given his form in this area, proving damage to his reputation would be tougher.

5 – Reasonable as far as it goes. In practice, I suspect that there will always be certain types of defamation that will be presumed to be damaging. How else can damage to reputation be demonstrated? If I accuse Sunny of that whole goat thing (sorry Sunny, nothing personal!) then how can Sunny prove that his reputation has been damaged? People might start looking at him funny, and stop inviting him to petting zoos, but what quantifiable damage has been suffered? This is only a short step away from abolishing the concept of damage to reputation altogether…

This is only a short step away from abolishing the concept of damage to reputation altogether…

Indeed, Tim, that is hinted at with our final point: Not everything deserves a reputation! We recommend setting the bar even higher for corporations, as they do in Australia.

Thanks for the update Rob – good stuff.

As someone who has been on the receiving end of several libel threats, the quicker this change comes the better.

hmm – though i can understand the logic, I’m not sure i can agree with where this appears to be heading.

I don’t think the USA, whose laws you seem to want to adopt, has a more open and pleasant media culture than we enjoy over here.

just a question, but why shouldn’t both sides have to prove their case?

it’s unfair as it stands but it’ll be equally unfair if these suggestions go into law.