The Government has a busy agenda, having to enact legislation on defamation at one end, and people in the media wondering whether George Osborne has in fact overstepped the mark beyond the customary “rough and tumble” of politics. There has been a lot of hoo-ha about whether George Osborne’s comment in the Spectator was defamatory. This aside, as reported here in Business Week, is as follows:

“Osborne said in the Spectator that people close to former Prime Minister Gordon Brown, for whom Balls worked as an aide before becoming a minister in the previous administration, “were clearly involved” in the Libor affair and that “we just haven’t heard the full facts.” “My opposite number, who was the City minister for part of this period and Gordon Brown’s right-hand man for all of it, so he has questions to answer,” Osborne told the magazine. “That’s Ed Balls by the way.””

Put simply, libel is defamation in permanent form such as in writing (slander is oral). A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society (Sim v Stretch [1936], 2 All ER 1237, 1240, per Lord Atkin).

In this discussion which follows, it is important to understand that no legal claims have been brought. The discussion is only for theoretical purposes, and no criminal offences have been demonstrated.

The putative claimant (Ed Balls) must prove that the statement was defamatory, that it referred to him, and was communicated to a third party. The onus then shifts to the putative defendant (George Osborne) to prove any of the three defences: truth (or justification), fair comment (in the matter of public interest), that it was made on a privileged occasion. ‘Vulgar abuse’ is not held to be defamatory (Thorley v Kerry [1812]), and it could be that George Osborne argues that it was ‘vulgar abuse’ made ‘in the rough-and-tumble of politics’. A problem for George Osborne is that innuendo can be held to be defamatory, and therefore such a statement may be defamatory; here the test is that ‘the hidden meaning must be one that could be understood from the words themselves by people who knew the claimant (Lewis v Daily Telegraph [1964]), and must be pleaded by the claimant. Here, the test therefore refers to the people who know Ed Balls, who presumably are not confined to the readership of Labour List or Left Foot Forward? The potentially defamatory remark is specific, as a remark aimed at a wider class of members which is sufficiently wide may not be defamatory (this issue is considered in some detail by the House of Lords in Knupffer v London Express Newspaper Ltd. [1944]).

Since its original publication in the Spectator, secondary reports of this accusation are now widespread. For example, the reports are now by Hélène Mulholland, Peter Edwards in Labour List, Andrew Trotman in the Daily Telegraph, Dan Hodges in the Daily Telegraph, the Guardian website, World News, Yahoo, and Nicholas Watt in the Guardian. However, such people who have reported on this would not be held to have committed a defamation, enshrined in s.1 Defamation Act [1996] as a defence of ‘innocent dissemination’, for a number of valid reasons including if the people knew or had reason to believe that what (s) he did caused or contributed to the publication of a defamatory statement.

We now have good reason to believe that the statement was false, but was made to discredit Ed Balls politically (therefore lower his reputation amongst right-thinking voters, quite literally.)  Jill Treanor, Rajeev Syal and Nicholas Watt write in the Guardian: “Amid Tory unease over Osborne’s tactics, Balls demanded a public apology after Bank of England deputy governor Paul Tucker repeatedly told MPs that he had not been encouraged to lean on ­Barclays to cut its submissions.”

5.49 pm on the Guardian blog yesterday reads as follows:

Labour MP Chris Leslie has put out his response to Tucker’s evidence, calling for an apology from Chancellor George Osborne.

Osborne said last week that “people around Gordon Brown” were “clearly involved [in the scandal around the manipulation of Libor]… That’s Ed Balls, by the way”. Leslie says:

The game is up for George Osborne. It is now crystal clear that the allegations he threw around were completely wrong and without foundation.

The deputy governor of the Bank of England has made it 100% clear that neither Ministers nor officials leaned on the Bank of England to ask Barclays to fix Libor rates. In addition Bob Diamond has also said that he did not believe he was being asked by Ministers or officials to fiddle Libor rates.

The last Labour government was rightly concerned with legitimate policy changes to reduce inter-bank lending costs during the global financial crisis. The Conservatives at the time even said they did not go far enough to reduce Libor. But that is completely different from the deliberate fixing of the Libor rate, which Barclays traders were involved in over several years.

Statements made in either House of Parliament are subject to ‘absolute privilege’. The actual publication in the Spectator itself may not be subject to parliamentary privilege, though this would be a media lawyer not me to opine about. Osborne, if a claim for defamation were ever made, might be able to argue that this was a legitimate point of debate, raised in the public interest. Angela Newsom, on the Treasury Commons Select Committee, said on BBC’s “World Tonight Programme, “I think it was a very valid discussion at the time about who knew what and it has now been completely squashed by Paul Tucker.” Generally, this public interest defence would normally apply to the ‘activity of public figures’.

At the other end of government, the Coalition is producing the Defamation Bill, and this has now reached the ‘report stage’ of legislation. You may review of the pdf of the Bill here. However, the emphasis of the new defamation legislation is different.

However, these worthy libel law reformers are missing the point when it comes to science. Scientists do not usually get sued for writing peer-reviewed articles. Similarly, scientific publishers do not usually get sued for reporting on what happened at a scientific conference. They are normally sued over news or investigative articles or comment pieces, as the above two cases demonstrate. The proposed reforms for science would not have made a jot of difference to either case. An interesting article, written by  Niri Shanmuganathan and Timothy Pinto are media lawyers at international law firm Taylor Wessing, who in fact represented Nature in the libel case brought by Professor El Naschie, raises the relationship between media law and scientific writings.

If parliament wishes to help prevent the law censoring scientific free speech, it may wish to consider two points. First, for science-related articles of high and genuine public interest, perhaps the claimant should have to prove that the publisher was being reckless in publishing in order to win. That is how American law deals with its “public figure” defence. Second, in any event, there should be a streamlined procedure so that it does not take two or three years for a publisher to dispose of a claim. This would help claimants too, as justice delayed is justice denied. Such a procedure could limit the length of parties’ submissions, the number of witnesses and the duration of cross-examination; with the judge firmly in charge of resolving the case as quickly and cheaply as possible.

It will be most interesting to follow the development of the Bill until it obtains Royal Assent in due course. These are certainly exciting times for the Government, as another issue of massive constitutional significance gets assessed summarily today in the Houses of Parliament – that is, reform of the House of the Lords.