Culture, Media and Sport Committee, Defamation Recommendations – William Bennett

In earlier posts we summarised the report of the House of Commons Select Committee on Culture Media and Sport and considered their recommendation on privacy.  This post will examine those parts of the report which dealt with the law of defamation relating to: the burden of proof; whether corporations ought to be permitted to sue and if so in what circumstances; when the limitation period expires for internet publications; and the Reynolds defence.

Justification and the burden of proof for individual claimants

The Committee had no hesitation in recommending that where a claimant is an individual, if the defendant chooses to advance a justification defence it should bear the burden of proving that defence.  The only real practical significance of switching the burden would occur where the tribunal of fact was not sure whether the allegation complained of was substantially true or not.  At present, such a doubt would cause it to reject a justification defence whereas if the claimant were to have the burden of proving that the allegation was not substantially true, such a doubt would be resolved in favour of the defendant.

The argument against switching the burden is for many a matter of principle and this seems to have been how the Committee approached it.  It concluded that it accorded with natural justice that the burden should stay with the defendant; the accuser ought to prove the truth of the accusation.

Corporate claimants

The report has a separate section on “Corporations and Defamation”.  The Committee accepted that corporations have reputations which they ought to be able to protect.  It was, however, concerned that they might use their financial muscle to stifle legitimate public debate.  It thus proposed that Parliament consider three proposals: preventing them from suing in defamation at all (but leaving it open to them to sue for malicious falsehood); requiring a corporate claimant to prove actual damage to its business in order to establish liability; and reversing “the general burden of proof”.  It also suggested that Parliament consider the merits of the law in Australia, where corporations (other than not-for-profit organisations or small businesses “of fewer than 10 people”) are not permitted to sue in defamation at all.

If corporations could not sue in defamation at all they would rarely be able to restore their reputations via a claim for malicious falsehood.  This would be because media organisations are very rarely actuated by malice (and even if they were it would be nigh on impossible to prove).  The availability of the tort of malicious falsehood would not of itself provide a remedy for upholding a right to reputation because such a claim could fail if the defendant did not have the requisite guilty state of mind. A corporation would not have an effective right to reputation if, in order to maintain it, it had to prove that the publisher had a certain state of mind at the time of publication (i.e. be required to prove something in order to restore its reputation which had nothing to do with whether that reputation was deserved or not).

It is unclear what a requirement to prove actual damage would entail: evidence from publishees that the claimant’s reputation had actually decreased as a result of reading the relevant words or proof of special damage.  Oddly, the imposition of either hurdle would cause costs to escalate.  Often these hurdles would add nothing because, for instance, it ought hardly to be necessary to go to the expense of proving actual damage where e.g. the defendant  had alleged that the claimant’s brand of baked beans contained a toxic substance.

It is curious that the Committee was so adamant that a private individual ought not to bear the burden on a justification defence but recommends reversing the burden of proof for a corporate claimant.  This may simply be because it concluded that corporate claimants are more able to “stick up for themselves”.  One cannot resist asking: what about the situation where one corporation wants to sue another corporation?  Perhaps that tricky question is best left to the legislators.

Limitation and the internet

The Committee considered the Internet and what it described as the “repeat publication rule”.  If a claimant issues defamation proceedings one year and one day after the publication complained of was first posted on a particular website (and where it is still being published) ought he:

1.    to be able to sue for all publications which took place in the year preceding the issue of the Claim Form (as is currently the case); or
2.    be shut out from suing for any of the publications which took place in the preceding year because the Claim Form was issued more than one year after the first publication on the internet was made i.e. be prevented from suing at all despite the fact that even on the date of issue of the Claim Form the defamatory words were still being published on the website.

The latter position would apply if the “single publication rule” were introduced.  The Committee was clearly concerned about the problem of a defendant being liable for the publication of material years after it was first posted but was also mindful of the fact it might be wrong to shut out a claimant from vindicating his reputation.  Thus it recommended that the one year limitation period run from the first publication on the relevant website but that the court have a discretion to extend that period and that even if it did not exercise that discretion, the claimant ought be able to obtain a court order to correct the defamatory statement (without being able to claim damages or, it would appear, costs).  Clearly this might be equitable in certain circumstances but there would be significant problems with such a procedure.  For instance, the legislature and the courts have been extremely reluctant to make orders which interfere with editorial freedom and one would have thought that no such order could be made unless there was a finding to the effect that the words in issue were not true.

Reynolds privilege

It is interesting to note that the Committee showed no concern in the Report for the fact that the successful deployment of the Reynolds defence will mean that an individual claimant will lose a defamation action and therefore lose all chance of vindicating his reputation not because the allegation complained of was objectively true but because the dissemination of the type  of information in issue was objectively in the public interest and the investigating journalist had acted responsibly in coming to the subjective conclusion that the allegation was true.  This is not to say that the rationale for Reynolds is wrong; it is to say that one might have expected some consideration to be given to ameliorating the impact of the successful deployment of the defence upon the claimant (and ensuring that the public was informed that the newspaper was not “standing by” the story).  For instance, one might think that it would be equitable and in the public interest to make the success of the defence conditional upon a newspaper publishing a reasonably prominent statement to the effect that it had decided not to contest that the allegation complained of was true.   Alternatively, consideration might be given to granting the court jurisdiction in certain circumstances to make a declaration of falsity in a Reynolds case – so that, although no damages or costs are payable by the media the claimant has a form of vindication.

The Committee concluded that the defence has been given reasonable flexibility since the House of Lords decision in Jameel and was reluctant to recommend its statutory codification.  However, it recommended that the government ought to conduct a detailed consideration of whether a statutory defence of responsible journalism ought to be introduced.  This might present the legislature with the opportunity to incorporate a provision which made the successful deployment of the defence conditional upon a defendant making it clear in the relevant publication that it was not, in fact, “standing by” the allegation complained of.  Such a provision would still enable the defendant to win the claim and recover its costs by proving a Reynolds defence and thus to bring about the rationale for Reynolds: the negation of the chilling effect.

William Bennett, 5RB