The government has published a draft libel reform bill; we'd like to know what you think

I would like to alert the mumsnet members to aspects of the Defamation Bill (a combination of Lord Lester's original bill and the Government's new bill) which can affect them but which probably they are not aware of.

The area of the bill which is of concern is that of Defence of Privilege in Defamation Law, which encompasses any material used or disclosed as part of Court processes and this can include medical records, when disclosed in the course of a medical negligence case. These records can be passed to a solicitor acting for the client (patient) or a number of solicitors, lay members of the Legal Aid Commision, barrister giving an Opinion, and various medical experts who are asked for an Expert Report.

The only person who cannot have access to these medical records is the client (patient) as the Law allows for the holder of the records (usually a GP) to refuse acess. Therefore there is no means whereby a client (patient) can verify or otherwise contradict what is in their records, particularly when two separate medical expert reports can be prepared, one of which is for the client (patient) to see and one which is confidential with the undisclosed information for the solicitor.

Should a patient eventually gain access to their records, by applying to the High Court, and find their reputation, personal, professional or both, has been defamed and/or there are proven discrepancies between events, medication, medical procedures and basic facts such as their family details, working life, qualifications, etc., there is no legal redress, as the Defence of Privilege applies to these Expert Reports and Medical Records.

This can have very serious conequences for the client (patient), who finds that they have been subjected to unauthorised medical procedure or who has been unfortunate to have had an incompetent, or in the exptreme case, criminal doctor (I would remind mumsnet members of Harold Shipman). There are many cases cited over the years, the most recently UK group action in 2002, where medical experimentation had been carried out on unsuspecting and vulnerable patients.

The legal profession, on all sides of the House of Commons and House of Lords, is using the Defamation Bill to tighten up even more the Defence of Privilege. This tightening up would prevent patients having legal redress about any lies discovered in their medical records and the government and the legal profession are relying on the ignorance of the average person to the legislation to get it passed.

The consultation period ends on 10th June 2011 as the Report on the Draft Bill is to be submitted by 19th July 2011. If you wish to be able to seek legal redress if you or members of your family find they have been subject to lies about their character, qualifications, or medical treatment in their medical records, then they should submite their opinion to

Paul Norris
Legal policy Team
Ministry of Justice
6.38
102 Petty France
London SW1 9AJ

The sections of the Bill covering these issues are Section 5 Privilege and Section 4 Honest Opinion.

Do not worry about not having legal knowledge. It is is important you simply write stating that you want the Defence of Privilege and Honest Opinion to be excluded in a claim for Defamation relating to medical records. Those with a legal bent can read it on line for themselves. also you should write to your MP expressing concerns about these Defences in the Defamation Bill.

An example of how injustice can occur because of the current Law relating to Access to Medical Records and Defamation is given in the book "Expert Witness" by Celia M. Bibby which is published by LULU.com and can be accessed on that website. (Sorry mumsnet this is not advertising but a preview may show what is at stake) The issues raised in this book are of public interest and the author of the book has submitted evidence to Lord Lester on the Bill.

I know that this is a very long message but I hope that those mumsnet members who read it will realise that this has been written by someone who is a qualified professional woman with experience in the area under discussion.

I think people should be responsible for themselves but I don't think things like what happened before should happen. Having an opinion about an issue or person shouldn't be regulated, humour shouldn't be regulated and lets face it no one would read that someone straps babies to rockets and believe they actually did! Personal malicious comments that are passed off as truth that will damage someone are what we need to take personal responsibility for and should be regulated.

One particular forum is a good example of how things risk getting. You can't discuss things they don't agree with - BLW is enough to get you banned - and you can't argue with people. I've been banned 3 times on the day I joined for talking about BLW and disagreeing with the mods when they posted back I was giving dangerous advice. I'm leaving the name out as I feel it's particularly inappropriate on this thread but lets say it's not one of the ones MumsNetters joke about and is one that gets linked to regularly.

Good point, Serial.

Out of interest, why is it so much more expensive to defend a libel case in UK than in rest of Europe (140 times more expensive apparently)? Does that just reflect a greater cost of litigation across the board, or is it something distinctive about libel?

YY what vinestein said about telling us what MN HQ thinks.

Well, this will be useless to you MN because I haven't had time to read it properly as DS is trashing the place and demanding food- ehem- but in short:

• defence of honest mistake is a necessary provision, to the standards prescribed

-defence of parody- IT'S NOT THERE! How very outdated is that- Have I Got News For You, for example, has satirically torn apart countless people for more than a decade, so why is it not in the Bill?? Most people on MN, and some people in RL have a sense of humour, and the law needs to provide for this

-I like the concept of limiting liability to websites that host content online.

• I don't like absolutely limiting liability because that will make it hard for someone to protect their reputation, perhaps, and it seems unfair if the site holds an editorial/responsible stance
• I really really like the statutory notice procedure. Cl 9 of Lord Lester's bill is quite well formed in this area already but I would amend it to 21 days
• I have problems with being sued for something I have written online. But I have problems with having no recourse if someone writes something defamatory about me online. Freedom of expression v right to protect your reputation is the real issue blabla

Other suggestions will be forthcoming when I've read it on the train. For all content by users I think websites should be insured and should risk assess whether something should be removed or not. Thus if the notice is issued, and it is not taken down, the insurance, much like public indemnity insurance (do you have this already?) will cover it but the standard of proof should be high- I'm uncomfortable with the burden being solely on one party or the other because for the burden to be on the claimant, well, that may disadvantage the poorer claimants, for the burden to be on the host site- well how do they know.

Basically I think the bill is somewhat lacking in any substance about this area so it's hard for us to comment until it is formed in a more logical way. If you are looking for suggestions then it would help mumsnetters to read what you think the law should be in this area and then we can comment from our perspective as to whether it is fair or realistic, and as to whether that would put us off perhaps using the site in this way

The variety of internet services which are now available means that a
wide range of people and organisations can potentially be affected by
issues relating to defamatory material, from large scale internet service
providers such as Google and Yahoo and social networking sites such
as Facebook and Twitter, to smaller scale discussion boards such as
Mumsnet, local forums on specific issues of local interest, and individual
bloggers.

In short, the whole purpose (for those wondering) of this consultation in relation to online content specifically is this:
'Concerns have been raised about the need to clarify the law as it
operates in relation to material published on the internet. This is a
complex area of the law, and we consider that it would benefit from
further consultation before legislative provisions are drafted. This section
of the consultation paper therefore seeks evidence on the problems that
are currently faced and suggestions as to how the law could best be
clarified so that appropriate provisions could be included in the
substantive Defamation Bill. It also seeks views on whether there should
be any change to the law to give greater protection against liability.'

er and last comment before I contribute something useful- the scary introduction of 'privacy' laws via Europe (remember michael douglas suing 'Hello!'?) completely infringes freedom of speech.

The problem has been the recent case law following SWMNBN debacle which has rendered websites a mystery as far as this goes and it seems it is still quite mysterious even after this paper.

Defamation is, I think the publishing of a defamatory statement which refers to the claimant and has no lawful justification- it has to be proven that it is published, that it is defamatory (this one is bizarre, almost anything can be construed as defamatory) and that it refers to the person who is claiming- again, this is a bit of an odd one as you can infer this, still be liable if it's about someone else, and can also affect whole groups of people
. The law as it currently is is in two forms really, libel, which is where it is in permanent form ie written, published, even a film- and slander which is transiroty in form- there's also a whole heap of new cases on European law creating what has almost become a 'privacy' law in the UK.

Defences have always been justification, fair comment, absolute and qualified privelege, that it was unintentional, innocent dissemination eg where someone prints a defamatory remark repeatedly without realising, and volenti or consent, so where someone invites it basically. There has never been a provision for humour- which is where the law is ridiculous at present.

Re: web hosts, the recent cases have been really peculiar imo. Ordinarily the party that publishes the remark is deemed liable- if this could be an internet site then the site is liable (though this is arguably historically not really so if they have removed the remark as soon as they are aware of it). The SWMNBN case is obviously a case where MN were held liable for a remark on their website.
However there have been a few cases including a svcary one in the High Court, Sheffield Wednesday v Hargreaves, in which the website.chat forum was ORDERED to provide the identities of the users (ie, you, you, you, me, AnyFucker, Cod, and so on) who could then themselves be sued by the claimant. This is not only scary for you and me but it provides problems for MN as well- how do they know who you are? How do they know something is defamatory? blablabla

Basically the real need for reform is, well, all of the law, but in particular the defences of fair comment- and also there really has to be an addition for a comedy defence, many things are said for the humour and are clearly not meant as defamatory statements of fact (eg SWMNBN)

I always took that to mean MumsNet or whoever's site you post on, can publish your words without your permission as you're giving permission by posting.

I think the disconnect and problem I am having understanding this is that sites, such as MN, do state that what is posted on them does belong to them, for outside publication etc.

So how can they then turn around and say 'but we're not responsible for what someone says on our boards.'

I'm not saying the whole SWMNBN fiasco was right or fair, but I am just trying to understand how MN (and others) can say they own my words but not the responsibility if someone sues for what is said.

I did try to read it but my eyes crossed (why can't they write these things in English???). So does it say that if I, for example, call a parenting 'expert' a big fat moron on here, then I can be sued? Rather than MN? Or is it saying that no one can be sued as it is my opinion that they are a big fat moron?

I want to read this when I get online. I'm not surprised MumsNet are involved after that crazy incident and hopefully this could protect others in the same situation.

[unhelpful]

(Should have put 'expert' in inverted comments, btw.)

ilovemydog - no, they aren't abolishing libel entirely. Can't tell you what they are saying, though, as it's so impenetrable - we need a translation by MN!

SWMN etc. is a well-known parenting expert who sued MN when posters argued that her books were not necessarily their favourites (and made disparaging remarks about her but you know, if you are a public figure and all that...).

(She Who Must Not Be Named)

I don't know what SWMNBN means?

Will read the consultation document, but are we saying that freedom is speech doesn't need any limitations? For instance race hatred could be viewed as a limitation of freedom of speech there should be some boundaries in terms of what is acceptable in a civilized society. Clearly this is a criminal issue, but the same sort of principle in terms of the quality aspect for the civil strand.