The law of libel in England and Wales is among the most limiting in the free world: in the latest global press freedom rankings, the UK as a whole ranks 31st, along with Belize and Micronesia. The need to update the law to reflect the digital age, to limit libel tourism and to restrict damages was one of the few areas of common ground at the last election. So it's welcome news that the coalition's defamation bill has now reached the House of Lords. But it is less good news that, despite efforts by Lib Dem backbenchers and the opposition, it is a flawed piece of work that falls far short of providing the defence that serious journalism – digital and newspaper – so badly needs.
As campaigning organisations like Index on Censorship argue in a letter to the Guardian today, the bill as it stands would not have protected any of the journalists, scientists, doctors and activists caught up in recent cases. These are of course precisely the areas where divergent views are most valuable, but their defence is most fraught.
The bill is certainly not all bad. It should bring better protection for scientific journals, it strengthens the defence of "honest opinion" and makes libel tourism harder, if not hard enough. Website archives will no longer need to fear a defamation case months or even years after original publication. And a new "serious harm" test should end trivial prosecutions.
What is lacking is a sense of the scale of the challenge faced by serious journalism. This is only partly about traditional news organisations fighting to preserve investigative journalism – they are concerned by an apparent weakening of the defence of "responsible journalism" that, in translation to legislation, seems likely to generate a whole new series of tests. It is also about the new world of blogging and posting where discussion of legitimate concerns on a forum can be shut off by a single threatening phone call from an in-house lawyer. These are the places that might provide early warning of problems in a chain of care homes or difficulties with a government contractor. If this kind of expression is to flourish as it should as a vital arm of democratic accountability, it needs protection against the rich and powerful whose interests it may be crossing. A robust public interest defence that offers some security where matters under debate are of public concern and are the subject of honest opinion is a serious omission.
Like any attempt to strike a balance, weighing free expression against protection of reputation is art as much as science. And that's another reason why this bill is important. Legal decisions here reverberate across the common law jurisdictions from Canada to the Caribbean. The better free expression is protected here, the better the UK can argue internationally against oppression and persecution.