Among the beneficial consequences of the much-anticipated libel-reform legislation may be the decommissioning of the word "draconian".
In recent times the word's usage has reduced it to a Mylesian relationship with the phrase "libel laws" - as in "our draconian libel laws", a cliché that trips off the keyboards of journalists like "fares please" once tripped off the lips of bus conductors. Through unchallenged repetition, it is accepted as a description of the climate arising from defamation law.
There is here a piquant inversion of meaning. The word originated in the Greece of the 7th-century BC, when the Athenian statesman Draco established laws to protect the city from marauding gangs of avenging clans. The main element of Draco's legislation was to outlaw the traditional right of a family to operate outside the law in avenging murder. But whereas the Draconian laws were perceived as curtailing personal retribution, the wailing mantra of media interests is that "our draconian libel laws" are, in effect, an instrument by which wealthy wrongdoers can escape their just deserts before the court of public opinion. And this idea - that libel proceedings favour rich and powerful plaintiffs in frustrating truth and justice - is largely fiction.
The contrary is closer to the truth: that defamation law and proceedings greatly favour powerful media interests in denying a voice to those they have wronged, and whose operatives religiously parrot their self-serving propaganda to a public too confused by the populist tone of such messages to argue.
Anyone, other than a multi-millionaire, who initiates libel proceedings against a newspaper or broadcasting organisation is patently boxing above his weight, inviting certain ruin in the event of losing or even winning and failing to reach a specific threshold of damages. With juries denied knowledge of the consequences of the quantum element of their decisions, libel actions can involve a kind of financial Russian roulette. For most individuals, the prospect of losing is of such dire import that only the super-rich can issue libel proceedings without some fear of losing home, life savings and shirt.
There may be good news, therefore, concealed in last week's finding in the European Court of Human Rights that the British government was wrong to deny free legal aid to two penniless environmental campaigners sued for defamation by a hamburger chain. In 1990, McDonald's sued Helen Steel and David Morris over critical leaflets headed "What's wrong with McDonald's: everything they don't want you to know", distributed to customers entering the group's restaurants. The court found that the couple's rights to a fair trial and free speech were violated by virtue of the refusal to grant them legal aid. The judgment said that the "inequality of arms" between the litigants had a "chilling effect" on freedom of expression, both in the inequality of means and the size of damages eventually awarded against the couple (£60,000, reduced to £40,000 by the court of appeal). It has been speculated that the judgment could exert downward pressure on libel awards, obliging courts to take into account the relative means of litigants before fixing damages, but of course this could mean that awards will also go up to reflect the resources of wealthier defendants. This case is atypical because the defendants possessed deeper pockets than the plaintiffs. Ms Steel and Mr Morris represented themselves, with occasional assistance from sympathetic lawyers and £40,000 raised from supporters; McDonald's employed a top-flight legal team and spent over £10 million on a case that made English legal history by running for 313 days.
There is a misperception, promoted by the "draconian" brigade, that the "free speech" dimension of libel actions pertains exclusively to plucky and beleaguered defendants who tell the truth at tremendous risk to themselves. But, very often, libel actions come to court because a powerful newspaper or broadcaster has refused to admit fault, thereby denying the plaintiff any means of correcting the record. This, too, is a free speech issue, so it is possible that the principle established in last week's ruling may operate also to protect impecunious plaintiffs.
Indeed, the logic of the ruling suggests that it could be interpreted in a manner as to take much of the fear out of libel for a plaintiff who is no more than relatively disadvantaged compared to a defendant. In the McDonald's case, there was an issue of absolute means: at the time of the action, Ms Steel was earning £65 a week, Mr Morris a single parent on income support. But the concept of "inequality of arms" appears to go further than merely offering relief in cases of outright poverty, seeming to demand a balancing of risk between litigants. Such a concept would transform libel litigation.
Defamation is profoundly related to free speech, but this works both ways: just as there is a fundamental right to tell the truth, there is a fundamental right to show that lies have been told about you. Neither can be called a right if it depends on depth-of-pocket.