"Nice People Should not have to Defend Themselves"

Professor Eoin O'Dell informs us, approvingly, that the U.K's Deputy Prime Minister has declaimed

We believe [libel] claimants should not be able to threaten claims on what are essentially trivial grounds

This is the nub of the English libel reformers' campaign, as far as I can see. To my mind, it is ridiculous and indeed outrageous.

Just imagine if analogous demands were made in other areas of law

• "Police should not able to prosecute on what are essentially trivial grounds"
• "Drivers in RTA collisions should not be allowed to claim against each other on what are essentially trivial grounds"

Both Irish and English law provide mechanisms for the early dismissal of trivial, frivolous or vexatious claims of all kinds. There is an argument, I believe, for greater use of these mechanisms in civil matters (including defamation) and for a more sympathetic approach by judges to their use. An interesting recent example of the mechanism was Foy v AIB, where the Defence rather than the claim was, to be polite, legally unviable, leading to a summary (=very quick) result. Surreally, lawyers were found to pronounce the result an outrage because, supposedly, any lawyer "worth his salt" (sigh) could have delayed the inevitable. (Only by suborning perjury and/or engaging in professional misconduct by virtue of blatant abuse of process, in my humble opinion.)

(Criminal justice lawyers - no, I am not one - need no such encouragement: they will normally and reflexively employ every possible device to have a criminal charge thrown out from day 1 of every case. Thank God).

I just cannot see how statute law - i.e. that enacted by parliament - can perform such a filtering role, that is, deciding in advance of any actual case, that certain kinds of claim are "essentially trivial", without either abolishing the tort of defamation entirely (if you think that would be good, see this) or greatly diminishing citizens' entitlement to access to the courts to resolve grievances. (Yes, yes, I know that lawyers have a vested interest in this, and that the entitlement means a lot less in practice than in theory, but those are distinct issues). And for what ? Apparently, to protect some people - scientists are at the forefront of the campaign - from having to face vigorous dissent from those whom they criticise, which some of them appear to believe it is legitimate to express in quite trenchant terms.

Of course, not least because I am the son of a scientist, I understand that scientists are alarmed, to put it mildly, by some truly outrageous attempts to stifle research by abuse, or threatened abuse, of the law. I have less sympathy with those who insist that they should have legal immunity when they not only express a scientific judgement, but feel obliged to insult and smear those whom they consider (normally, to my mind, with good...er...reason) to be less than perfect followers of the One True God Scientific Method.

A rough-and-ready (that means it is not perfect: no need to point that out in the comments, thanks) guide for scientists might be: if someone is suing you on the basis that you defamed him or her in your brilliant scientific paper, book or article, you probably need to be more impersonal in your analysis. I know, it makes the writing less exciting but that kind of writing is for journalists, whose training, unlike yours, includes some education about defamation law.

Update on Friday, January 14, 2011 at 05:53PM by Fergus O'Rourke

Inforrm's Blog (London, England) has contributed usefully here on the same topic, on the Libel Reform Campaign here, and is consistently worth reading on media law issues.