In the final part of this three part post Hugh Tomlinson QC looks at the balancing of reputation and expression in the case law of the European Court of Human Rights and the implications for domestic law. Part One of the post is here and Part Two is here.
As discussed in the first two parts of this post the case law of the European Convention on Human Rights establishes that the State has a positive obligation to protect Article 8 rights in the relations between private individuals and that “reputation” is one of the rights protected by Article 8. This means that when a person’s reputation is damaged by publications by private persons, including the media, the Courts must balance the Article 8 rights of the person whose reputation is in issue against the Article 10 rights of the publishers.
BALANCING IN STRASBOURG
Since the recognition of an Article 8 “right to reputation” the Court of Human Rights has, on number of occasions, had to deal with the balance between this right and the Article 10 rights of the media.
The case of Chauvy v France ((2005) 41 EHRR 29) concerned a historical book which questioned an account of events of 1943 given by a well known resistance leader, raising the possibility he had betrayed his comrades. The domestic court convicted the author and publisher of criminal libel and ordered payment of compensation and the publication of a statement in the press. In particular, it found that the author had engaged in insufficient critical analysis of his sources and rejected his plea of good faith. The ECtHR accepted these conclusions, finding that the right to reputation of the persons attacked in the book should take precedence over the freedom of expression of the applicants (see para 70 and the Concurring Opinion of Judge Thomason, O-14).
In contrast, in the 2006 case of White v Sweden (mentioned in the previous post), there was no breach of Article 8 as the journalists had acted in good faith and had made proper attempts to verify, the newspapers had published statements rejecting the allegations and had given the applicant an opportunity to comment.
The issue of “balance” was considered by several of the judges in the Grand Chamber case of Lindon, Otchakovsky-Laurens and July v. France ((2008) 46 EHRR 35). The dissenting judges (who took the same view on the law as the majority) summarised the position in this way:
“When the Court is confronted, as in the present case, with a situation of conflict between freedom of expression (Article 10 of the Convention) and the right to protection of one’s reputation (Article 8 of the Convention), its method is to weigh the various interests against each other in order to ascertain whether a fair balance has been struck between the competing rights and interests”
In this concurring opinion Judge Loucaides pointed out that:
“protection of reputation entails an obligation for the State to enforce a corresponding right guaranteed by the Convention with the same status as freedom of expression. Any defamatory statement amounts to interference with the right guaranteed by the Convention and can only be justified if it satisfies the requirements of permissible restrictions on the exercise of such right, i.e., it must be prescribed by law and necessary in a democratic society, corresponding to a pressing social need, proportionate to the aim pursued, etc. Therefore it will be more difficult to defend a defamatory statement for purposes of Convention protection when it is examined as interference with a right recognised under the Convention, rather than as a necessary restriction on freedom of expression”.
He went on to say that
“When there is a conflict between two rights under the Convention, neither of them can neutralise the other through the adoption of any absolute approach. Both must be implemented and survive in harmony through the necessary compromises, depending on the facts of each particular case.
In Flux v. Moldova (No. 6) (Judgment of 29 July 2008) the applicant newspaper had quoted an anonymous letter alleging that a school principal had taken bribes but had not sought to prove the truth of the allegations. The applicant was ordered to publish an apology and pay a sum of €88. In considering whether this interference was justified the Court pointed out that
“Article 10 of the Convention does not … guarantee wholly unrestricted freedom of expression even in respect of coverage by the press of matters of serious public concern. Where, as in the present case, there is question of attacking the reputation of individuals and thus undermining their rights as guaranteed in Article 8 of the Convention … regard must be had to the fair balance which has to be struck between the competing interests at stake”.
The Court went on to hold that there had been no breach of Article 10 on the facts of that case.
In Alithia Publishing Company and Constantinides v Cyprus (Judgment of 22 May 2008) the applicants had written and published twelve articles alleging that the Minister of Defence had been involved in a conspiracy to misappropriate public funds with armaments traders. They were found to have acted in bad faith and were ordered to pay general and exemplary damages for defamation in the total sum of nearly €60,000. The Court held that domestic ‘qualified privilege’ defence was prescribed by law and that the interference was necessary in a democratic society. The allegations were factual and, because they were not published in good faith, it was not necessary to examine the question as to whether there were grounds for dispensing with the obligation to verify .
The potential significance of the Article 8 right to reputation for domestic law is obvious. It means that claimants (as well as defendants) can rely upon human rights arguments in defamation cases: the State (by its Courts) has a positive obligation to protect both freedom of expression and reputation. It has long been acknowledged that if defamation law overly favours claimants it may fall foul of Article 10. However, it is now clear that the contrary is also true: if defamation law is too favourable to defendants it can breach Article 8.
So far, there has been some limited recognition in domestic case law of the significance of Article 8 in the context of the protection of reputation. For example, in Galloway v Telegraph Group ( EWCA Civ 17) the Court of Appeal said at :
“… the crucial paragraph in [the Cumpana] judgment is  because it stresses the importance of the national court striking a fair balance between the protection of freedom of expression enshrined in Article 10 and the protection of a person’s reputation enshrined in Article 8 as an aspect of private life. It seems to us that that is exactly the balance which Lord Nicholls was articulating in Reynolds…. Moreover, it also seems to us that Lord Nicholls was himself according particular importance to freedom of expression and thus freedom of the press in just the same way as the European Court has done. We detect no difference in principle between the approach of the House of Lords in Reynolds and the approach of the European Court”.
The point about “according particular import to freedom of expression” can no longer be maintained. As has already been discussed, in the ECtHR it is now clear that the right to freedom of expression cannot be regarded as being more important than the right to reputation. Articles 8 and 10 have equal importance, neither having precedence over the other; reputation, like freedom of expression, is now protected as a Convention rights. To give “particular importance” to freedom of expression – without, at the same time, giving equivalent importance to the protection of reputation – cannot stand with the recent Strasbourg case law.
This issue was considered by Mr Justice Tugendhat in Flood v Times Newspapers ( EWHC 2375 (QB)) who held that the statement that “lingering doubts should be resolved in favour of publication” in Reynolds could not stand with the subsequent case law on the balance between Articles 8 and 10 (Ibid, ). He held that
“The balance between protection of reputation and freedom of expression requires the same approach in whatever legal context it arises” .
In other words, in a defamation claim – just as in a privacy claim – the court must carry out a “parallel analysis” – looking at matters first from the perspective of the claimant’s Article 8 right to reputation and then from the perspective of the defendant’s Article 10 to freedom of expresson.
THE IMPLICATIONS FOR DEFAMATION LAW
In his recent lecture at the City University Mr Justice Eady describe the observation as of Judge Loucaides in the Lindon case quoted above – concerning the “implementation” of conflicting Convention rights – as “somewhat ominous” (at p.9). I understand Mr Justice Eady’s concern to arise from the requirement to engage in “fact sensitive” investigation in each case – so-called “ad hoc balancing” – thus removing “bright line rules” and introducing uncertainty into domestic defamation law. He is, I believe, right to be concerned: the inevitable result of the recognition of an Article 8 right to reputation is to blur the boundaries between privacy and defamation and to require “case by case” assessment of the balance between expression and reputation.
The implications of a “Convention right to reputation” are potentially far-reaching for English defamation law. In the long term, the boundary between “privacy” and “defamation” cases may disappear, leaving a “continuum” of Article 8 cases. In the medium term, there are at least four areas in which the requirement of “balancing” Article 8 and Article 10 may require revision of the rules of domestic defamation law.
First, in relation to interim relief, there is the so-called “rule in Bonnard v Perryman” – the rule that a claimant cannot obtain an interim injunction in defamation if the defendant contends that the allegations complained of are true and that it will justify them. Yet this rule proceeds on the basis that the claimant’s right to reputation is always over-ridden at the interim stage by the defendant’s right to freedom of expression. It is difficult to see how this can be consistent with the requirement to balance the rights under Article 8 and Article 10 on the facts of each case. The position must be regarded as open to review, particularly in a case where, on the facts, there is no public interest in the allegations to be published.
Mr Justice Eady has drawn attention to this point on a number of occasions, most recently in his lecture at the City University (see our post here). He pointed out that Bonnard v Perryman has never been considered by the House of Lords or the Supreme Court and poses the question
“as to why a different test should be applied to reputation cases from that laid down by Parliament for those concerning protection of privacy. What is the reason why it is, and should remain, more difficult to obtain an injunction to protect reputation than to protect another aspect of human dignity and autonomy, even though both are covered by Article 8?”
It is difficult to see any proper basis for the application of a different test in privacy and defamation cases and the new Article 8 case law suggests that the rule will have to be revisited.
Second, there is the impact on the Reynolds qualified privilege defence. As has already been mentioned, it is difficult to see how the “presumption” in favour of Article 10 can continue to be applied in such cases. The point was considered by Mr Justice Tugendhat in Flood v Times Newspapers ( EWHC 2375 (QB))
“The recognition of reputation as an Article 8 right, and the consequential necessity of applying to defamation cases the ultimate balancing test from Re S, had not occurred, even by the time Jameel was tried at first instance in late 2003 … In consequence, neither Campbell nor Re S was cited in Jameel. There is no reason to suppose that it would have made any difference to the outcome of Jameel (or for that matter any of the other Reynolds cases that have come before the courts) if Re S had been cited. But there will be cases where following the course enjoined in that case will or may make a difference to the fate of a Reynolds defence” .
The recognition of an Article 8 right to reputation may entail a closer scrutiny of the “public interest” in the story published (or to be published), with a view to assessing whether it is sufficient to justify interference with the claimant’s Article 8 rights. As already mentioned, a full “parallel analysis” must be carried out in each case .
Third, there is the effect on the defence of “justification”. To prove the truth (or the substantial truth) of what has been published is a complete defence to a defamation claim. In his City University Lecture, Mr Justice Eady points out that this does not apply in cases covered by the Rehabilitation of Offenders Act 1974. He suggests that
“It has, however, to be recognised that the philosophy behind the Rehabilitation of Offenders Act, founded as it is on proportionality, may find itself extended to other inconvenient facts” (p.8).
As Mr Justice Tugendhat said in Terry v Persons Unknown ( EWHC 119 (QB))
“the argument is that English law requires reform along the lines of what was recommended by The Select Committee of the House of Lords on the Law of Defamation in 1843. The Committee recommended that the defendant who pleads justification should also have to establish “it was for the benefit of the community that the words should be spoken”. Or there is the model of French law, which has imported from Arts 8 and 10 the concepts of legitimate aim and proportionality” .
Fourth, there is the impact on the law of qualified privilege. At present, if qualified privilege is established then it can only be rebutted by proof of malice – which, in practice, means proof that the defendant knew that the words complained of were false (or was reckless as to their truth or falsity). It is not sufficient to demonstrate that the defendant was negligent or that, in deciding to publish the words he acted disproportionately. It might be argued that this approach does not properly protect the Article 8 right to reputation of the person defamed. Some indication of the possible changes in approach can be found in the case of Clift v Slough Borough Council ( EWHC 1550 (QB);  4 All ER 476). This concerned publication by a public authority which had a duty to act consistently with Article 8 and the court had to consider whether the publication was necessary and proportionate. Some of the publications were not proportionate and were, therefore, not protected by qualified privilege even though they were not malicious. Although the analysis was confined to publication by public authorities, Mr Justice Tugendhat pointed out that a similar analysis might apply to publications by private bodies which constituted “data processing” under the Data Protection Act 1998. More generally, it might be argued that the protection of the careless and disproportionate publication of damaging allegations, subject only to the requirement of honesty, provides insufficient protection for the Article 8 rights of claimants and that a “fact sensitive” proportionality analysis should be carried out in each case.
The “constitutional” importance of the freedom of expression is firmly established in English law. Although this was established at common law, it has been given significant support by the ECtHR Article 10 case law with its emphasis on the need to justify all restrictions on freedom of expression. The recent developments in the ECtHR’s Article 8 case law are likely to lead to the establishment of “private life” and “reputation” as “constitutional” rights of equal importance to freedom of expression. The law of privacy and of defamation is likely to be increasingly concerned with the “balancing” of these rights. As Mr Justice Eady pointed out in his City University Lecture this will lead to increased uncertainty in this area of the law. As he pointed out,
“Our new human rights environment is conditioned by the European Convention and the Strasbourg jurisprudence. … uncertainty is inherent in this new methodology [in] that individual judges are required to carry out a balancing exercise between competing Convention rights”.
The combination of the doctrine of positive obligations and the Article 8 right to reputation is that such “a balancing exercise” is will, increasingly, become central to the English law of defamation.