By Jonathan Isaby
He contended that in recent years they have been used to suppress free speech, with the rich and powerful using the libel laws "to intimidate the less wealthy and the less powerful". In particular, he cited examples of foreign nationals using British courts to sue foreign parties from third countries:
"Those rich men each brought their cases under the English judicial system, rather than in the appropriate forum, because English libel law is complex, clumsy, expensive and draconian. It is 140 times more expensive to defend a libel case in England than in other European nations. As a result, it favours the wealthy man who has the most financial stamina and can afford the most expensive lawyers. Although libel tourism is not the most important weakness in English libel law, it is the starkest symptom of how unfair it can be, compared with every other jurisdiction in the modern world.
"Perhaps the best domestic example of this grotesquely expensive system is the Naomi Campbell case. A newspaper wrote about her drug problem. It was sued and lost on the grounds of breach of confidentiality. Although the story was true, the legal fees alone cost more than £1 million.
"How did all that come about? English libel law was largely developed centuries ago by English judges, as an alternative to duelling to protect the honour of gentlemen. I am sure that no Member wants to see Hampstead Heath littered with the bodies of dead journalists, but I am not sure how much of an improvement that new law was. It has been compounded with undoubtedly well intentioned European Union and European Court of Human Rights law, and we have ended up with dreadful unintended consequences."
He went on to cite concern about the "super-injunction" and the use of English libel law by powerful commercial interests "to suppress legitimate discussion of scientific fact and medical effectiveness." He said that the effect of "lawfare" is "to chill free speech in science, medicine and many other areas".
Mr Davis admitted that there was no single, simple solution to the issues he raised, but concluded with the following thoughts:
"The cost of defending libel cases should be brought down. One step would be not to remove jury trial, but to introduce a tribunal process to deal with all but the most serious cases… The law should focus on protecting individual reputation, without allowing heavy-handed commercial intimidation. One step towards that might be not to allow commercial companies above a certain size – in fact, really rather a small size – to bring such suits unless they can, in advance, demonstrate financial damage.
"The public interest defence… is too vague and unhelpful to authors of legitimate criticism. A stronger and clearer defence than that provided by the so-called Reynolds defence should be instituted. In particular, there should be a broader definition of what constitutes fair comment. In the light of what I have said about scientific and medical concerns, such a definition should be designed to exclude scientific and medical dispute from the courts completely. There should be intelligent limits on what constitutes multiple publication. For a court case to be brought in Britain, a significant proportion – certainly more than 10% – of the publication should have been in Britain."
Read his whole speech here.