There are also lots of other smaller issues that undermine a defendant’s ability to prove the truth of the defamatory statement – see for instance the Bower/Black case, where the judge tried to exclude extremely pertinent evidence but thankfully was overruled on appeal.

Taken together that provides a pretty big chilling effect for anyone within the reach of English courts.

Technically speaking, in English law, a claimant first has to show the statement is defamatory. In other words, the claimant has to prove that the words complained of were published in the UK (this is interpreted extremely broadly by English courts), they are a statement of a fact, they identify the claimant, and that they would lower the reputation of the claimant in the eyes of a reasonable person. If this is done, that’s when the burden of proof switches to the defendant and they have to argue a defence, one of which is truth (aka justification). Now, in practice, because of the way the English courts have construed the statute(s), it’s extremely easy to prove defamation, so that’s why people say the burden of proof is on the defendant.

Or, to put it another way, someone makes damaging allegations against you. Should you be required to show that the allegations are false, or should the person making the allegations be required to show that they are true?

Remembering in both cases a civil court hearing a libel case will make its decision on the balance of probabilities, based on the evidence provided by the parties.

The law generally requires a person who asserts a positive position to show at least prima facie evidence for it, before the other party has to provide evidence in rebuttal. Is the positive position the original statement / allegation, or the complaint about it?

Super-injunctions are rarely (if ever – I’d have to check) granted for potentially libellous material. They’re typically granted for breach of privacy (John Terry) or breach of confidentiality (Trafigura, Barclays).

FYI, the Commons Select Committee for Culture, Media and Sport published a huge report today on the press, including many recommendations for libel reform. For non-Brits, you need to bear in mind that select committees have very little power in practice, but they do set the tone of debate to a certain degree and it’s a very good thing that they’re on board. I’m not hugely optimistic that there’s going to be wholesale reform of libel law, but it seems pretty clear now that there will be more than cosmetic changes in the next couple of years.

Thanks for alerting me to this – I’m English but hadn’t heard about this case until reading it on your blog, so first off – keep posting things like this! I’ve signed the petition.

I and many of my friends have been taking chiropractic treatment for (in my case) severe upper-lower back pain, probably hereditary, and for other back/shoulder/neck issues, but not for any of the really alternative things some chiro’s suggest they can fix..

We probably share the same views on whether/not Chiro can fix all sorts of weird illnesses, but specifically I was wondering about your views on the treatment of back pain – specifically, do you know of any cases where it’s been detrimental to sufferers of back pain to visit a chiropractor?

Cheers!

I’m no lawyer but doesn’t that principle seem to totally contradict the key legal justice idea of Presumption of Innocence?

Shouldn’t Simon Singh & others accused of libel be presumed innocent until proven guilty of libel with it being up to the prosecution – those saying he is guilty of libel – to prove guilt *beyond reasonable doubt* here?

The truth & the right to express your views – esp. true ones – freely should be a paramount defence too.

PS,. Just seen that (# 7.) Steve Huntwork has beaten me to it. Oh well. I agree & add my voice to his.