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Month: March 2010 (Page 5 of 5)

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

March 4, 2010 / / 1 Comment

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

Opinion: “Anonymity versus Openness – why do parties need to be named?” by Alison Macdonald

March 2, 2010 / / 0 Comments

The recent decision of the Supreme Court in the case of In Re Guardian News and Media ([2010] UKSC 1; [2010] 2 WLR 325) has been met with almost universal approbation by the media and legal commentators.  For example, one of the applicants, the freedom of expression NGO “Index on Censorship” said “This is an important decision. For the very first case heard by the Supreme Court to be held under conditions of anonymity would have been a blow to the concepts of a free press and open justice, which should be at the core of the court’s operations.”.  Similar points were made in the press release of another applicant, Article 19.

However, the position is not quite a clear as many commentators have suggested and there is a danger of an unexamined adherence to “openness” unjustifiably intruding into the private lives of litigants.

The decision in the Guardian News and Media case was on an application, made by a number of media organisations and NGOs, on the first day of the Supreme Court’s existence to remove the anonymity orders which had, up to then, been in place. The applicants originally argued that the appellants were required to make a fresh anonymity application before the Court  The appellants’ identities had been protected by anonymity orders in the lower courts, and they were referred to by their initials. The applicants applied to have those orders discharged, to allow them to include the identities of the appellants in their reporting. Before dealing with the main issues in the appeals, the Court, through Lord Rodger, gave a separate, unanimous judgment allowing the press application.

Lord Rodger began by noting that it is increasingly common for parties’ identities to be protected: as counsel for the press described it, the Court’s ‘first term docket reads like alphabet soup.’ [1] He emphasised the long-standing principle that judicial proceedings are held in public and the parties are named, even when this meant that nineteenth-century divorce proceedings became ‘popular reading-matter among servants.’ [23]   But in the present day, the effect of the European Convention on Human Rights is that the long-recognised public interest in the full reporting of proceedings (which engages Article 10) must be weighed against a litigant’s right to private and family life (which engages Article 8). The Court adopted the description of the Article 8 / 10 balancing exercise given by Lord Hoffmann in Campbell v MGN Ltd [2004] 2 AC 457, at [55] and [56] (a case brought by Naomi Campbell against a newspaper which had published photographs of her leaving a drug treatment session):

‘when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right.’

That was the balancing exercise which the Court had to carry out.

Formally, being subjected to a freezing order means that the Treasury claims to have reasonable grounds to suspect a person of facilitating terrorism. It does not mean that there is proof that the person has been involved in terrorist activity. Understandably, the appellants feared that this was a distinction which would be lost on members of the public, with damaging consequences for them and their families. It is readily apparent that people are likely to elide suspicion and proof, in this highly charged context, and that even being ‘suspected’ by the government of facilitating terrorism is a serious matter, especially where that suspicion leads to draconian asset-freezing measures. There is an obvious risk that the public would infer that the draconian nature of the measures were proportionate to the level of threat posed by the individual who was subjected to them.

Lord Rodger thought otherwise:

‘Doubtless, some may indeed draw the unjustified inference that M fears. But the public are by now very familiar with the argument that various measures, including control orders, have been taken against people who are merely suspected of involvement in terrorism, precisely because the authorities cannot prove that they are actually involved.’ [60]

This imputes a level of sophistication to the press and public which may, in many cases, be misplaced. Even if correct, however, one might question the use of the word ‘merely.’ Even the revelation that a person is ‘merely suspected’ of involvement in terrorism – the suspicion being that of the government, which has taken the suspicion seriously enough to freeze the person’s assets – is obviously damaging to the reputation of a person. It may have serious, though difficult to predict, effects on their relationships, employment prospects, and other aspects of their private and family life.

Lord Rodger considered that the appellants’ argument on this point ‘really amounts to saying that the press must be prevented from printing what is true as a matter of fact, for fear that some of those reading the reports may misinterpret them and act inappropriately.’ [60] In areas where the State has some obligation to protect individuals from interferences with their Convention rights by the actions of private individuals, such as Article 8, it is no answer to say that the actions which constitute those interferences would be wrongful, and that protection is therefore unnecessary. By definition, many violations of Convention rights will be through wrongful acts (by way of serious violence in the Article 2 context, for example). The question for the Court is what impact those acts would have on the individual, not whether the acts would be based on an accurate understanding of the situation.

The appellants also emphasised that, under the Orders, they were unable to challenge the substance of the allegations against them. The allegations would never be brought to trial. They had no power to clear the ‘mere suspicion’ which hung over them. They argued that, in all the circumstances, a full report of the case, simply withholding their names, would strike a fair balance between the rights of the press, and their and their families’ private lives.

The Court’s rejection of these arguments turned on its view that:

‘A requirement to report [the case] in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive… A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer. On the other hand, if newspapers can identify the people concerned, they may be able to give a more vivid and compelling account which will stimulate discussion about the use of freezing orders and their impact on the communities in which the individuals live. Concealing their identities simply casts a shadow over entire communities.’ [63]-[65]

On this analysis, the ‘sufficient public interest’ required by the Campbell balancing exercise constitutes the fact that readers are more interested in a press report if it contains a name rather than simply an initial. This heightened interest was considered relevant for two reasons: stimulating public debate, and ‘the viability of newspapers and magazines’.

This is a flimsy basis on which to find a public interest when set against the potential damage to the individual. It is also factually questionable: during the period of detention without trial, for example, the press ran interviews with those who had been subjected to it, giving extensive details of the human impact of the policy, but simply withholding the person’s full name. There is an entirely workable middle ground between full, damaging revelation of identity, and the ‘disembodied’ and uninteresting reports envisaged by the Court.

Lord Rodger also considered that concealing the appellants’ identities

‘runs counter to the entire thrust of [their] case’, which was that the freezing orders were ‘wrongs done to them, rather than … indications that they themselves have done something wrong.’ [67]

This is not quite right. The appellants’ case was that the freezing orders were unlawful, and also that they did not have a proper opportunity to contest their designation. Winning their case, as they did, did not in itself prove that the ‘suspicion’ against them was unjustified. They remain, in the eyes of the public, those whom the government suspects as terrorists, with all the damage that that may do to their lives.

The Court set aside the anonymity order and named the appellants. It expressly reserved the position in respect of anonymity in control order cases, acknowledging that ‘there may be arguments and considerations in those cases which were not explored at the hearing in this case.’ [78]  However, it seems inevitable that the press will now make such applications in control order cases, with considerable support from the judgment of the Court in this case.

The decision is founded on a public interest in “identification” which “trumped” the Article 8 rights of the appellants.  Such an interest is dubious.  As a matter of practicality the same articles can be written and the same public debates had whether the first appellant was identified as “A” or “Mohammed Jabar Ahmed”.  It is difficult to see how readers’ understanding of the issues will be enhanced by names being added. Second, in contrast the overwhelming majority of readers will have no knowledge of the individuals identified and will gain nothing from knowing who they are. As with any newspaper reports, the names of the appellants will briefly enter the public domain – as still suspected terrorist funders.   Any subsequent decision to remove them from a suspects list would be likely to receive little or no publicity.  The damage is permanent.  This problem is particularly acute in criminal cases where most reports concentrate on two things – the prosecution opening and the facts of the offence if there is a guilty verdict.  The identified party, in practice, suffers permanent and unremedied damage to his or her reputation by the initial publicity, damage which is not substantially repaired by a short paragraph mentioning an acquittal.

There is an obvious general public interest in knowing the names of those convicted of crime. The public interest in knowing the names of those suspected or accused is much less obvious.   A more consistent approach would involve anonymising all criminal and quasi-criminal proceedings until there is a finding of guilt.   The Supreme Court decision involves an uncritical acceptance of media assertions about the value of “openness” and transparency, which in turn involves riding roughshod over the privacy rights of those accused.

The photograph illustrating this post is from a series called “Anonymity” by Poklong Anading – a series of street portraits from Cubao in Quezon City, Philippines.

This post originally appeared on the UKSC Blog and is reproduced with permission and thanks

Strasbourg Case Law: Defamation and Balancing Articles 8 and 10

March 2, 2010 / / 0 Comments

The Court of Human Rights has considered the balance between Articles 8 and 10 of the Convention in a number of defamation cases over the past year.   We draw attention to three of these cases.  This case law is important for media lawyers in England as it shows the way in which the domestic courts should be approaching these issues in accordance with their duty under section 6 of the Human Rights Act 1998.

The first case is A v Norway (Judgment of 9 April 2009).  The applicant was a convicted murderer who was questioned about the rape and murder of two young girls.   A newspaper carried an article referring to the questioning of “a 42-year-old convicted murderer from Kristiansand” without naming him and including a photograph of the applicant, although not showing his face.  The applicant’s defamation claim was dismissed by the Norwegian Supreme Court.  The applicant complained that this was a breach of the positive obligation under Article 8 to protect his reputation. 

The Court first considered the general principles applicable in this area.  It said:

“The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person’s “honour and reputation”. …  the Court has recognised reputation … and also honour … as part of the right to respect for private life. In Pfeifer [Judgment of 15 November 2007, para 35 ], the Court held that a person’s reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life   …  The question is whether the State has achieved a fair balance between the applicant’s “right to respect for his private life” under Article 8 and the newspaper’s right to freedom of expression guaranteed by Article 10 of the Convention”  (paras 63-65).

The Court held that the coverage was defamatory of the applicant: although he had not been mentioned by name, “the photographs and details of his places of work and residence had made it possible for persons who already knew him to identify him as a possible suspect of aggravated crimes of a particularly reprehensible and also sensitive … character” (para 70).  The publication “entailed a particularly grievous prejudice to the applicant’s honour and reputation that was especially harmful to his moral and psychological integrity and to his private life” (para 73).  The serious public interest in the subject matter of the article was not sufficient to justify the defamatory allegation against the applicant with the consequent harm done to him.  As a result, a fair balance had not been struck between Articles 8 and 10 there was a breach of Norway’s positive obligation under Article 8.

The second case is Makarenko v Russia (Judgment of 22 December 2009).  The applicant was the victim of a shooting which, at a press conference, he blamed on Mr M who he accused of attempted murder.  The applicant was subsequently convicted of aggravated libel and sentenced to one year’s probation.  The question for the Court was whether this conviction was justified under Article 10(2) as being “necessary in a democratic society”.  It held that

“the statement that Mr M. had organised an attempt to murder the applicant was clearly an allegation of fact and as such susceptible to proof …  Having made the offending allegations, the applicant was liable for their truthfulness” (para 152). 

The fact that the applicant subsequently admitted that his allegation against Mr M was incorrect and apologised “did not fully wipe out the damage inflicted on Mr M.’s reputation” (para 154). The Court went on to hold that the penalty to which the applicant was subjected did not upset the balance between his freedom of expression and the need to protect Mr M.’s reputation (para 157).

The third case is the admissibility decision in Rukaj v Greece (Decision of 21 January 2010) – available only in French.  The applicant had been involved in litigation against his employer following an accident at work.  He later alleged that EF, the lawyer who had represented him in those proceedings, had acted to his in order to help his opponent and had included incorrect facts in his claim and evidence favouring his opponent.  He complained to the International Human Rights Federation and to the Athens Bar.   EF brought successful defamation proceedings and the applicant was sentence to 5 months imprisonment, suspended for 3 years.  The Court held that the applicant had knowingly presented false facts in support of his complaint against EF.

In considering whether this penalty was justified under Article 10(2) the Court set out the following general principles

“In the context of proceedings for defamation or insult, the Court must determine whether the domestic authorities have struck a fair balance between, on one hand, protection of freedom of expression, enshrined in Article 10, and, secondly, that the right to reputation of the defendants, which, as part of privacy, is protected by Article 8 of the Convention (see Pfeifer v. Austria, Judgment of 15 November 2007, § 35). This latter provision may require the adoption of positive measures to ensure effective respect for private life even in relations between individuals”.

 The Court considered that, in all the circumstances, the applicant’s conviction and sentence were not disproportionate and the interference with the applicant’s right to freedom of expression was necessary in a democratic society to protect the reputation and rights of others.  As a result, the application was held to be inadmissible.

These cases demonstrate that, when defamation proceedings are being considered, the court must consider the balance between “reputation” and “expression” – with neither being given priority.   This is consistent with the approach taken by Mr Justice Tugendhat in the recent case of Gary Flood v Times Newspapers ([2009] EWHC 2375 (QB)).  The exercise is fact sensitive but, in an appropriate case, severe sanctions will be justified.   It is important to note that, in an appropriate case, the State is required to take positive measures to protection the “reputation and honour”.

International Federation of Journalists’ Report on the PCC

March 1, 2010 / / 0 Comments

A report prepared for the International Federation of Journalists (“the IFJ”) into a controversy over illegal telephone hacking in the tabloid press in Britain says that the country’s self-regulatorPress Complaints Commission  is in need of urgent reform to enhance the reputation of British journalism.

The report was commissioned by the IFJ after the PCC carried out two inquiries following claims of illegal tapping of the telephones of celebrities by journalists at The News of the World, the flagship title of the Rupert Murdoch press in Britain.  The claims, made by The Guardian, were dismissed by the PCC which accepted the tabloid management’s view that the actions of two employees who were jailed in January 2007 for illegal hacking were an isolated incident.

However, fresh Guardian claims following extensive and secretive payouts to the victims of the hacking system last year led to a second inquiry. The PCC again accepted the News of the World’s view and this time rebuked The Guardian, sparking a row which led The Guardian’s editor to resign from his place on the PCC.  

The IFJ Report, prepared by Belgian journalist and writer Jean-Paul Marthoz, has found that the actions of the PCC have weakened its credibility and revealed major failings in its mandate and its ways of operating.  “A critical moment has arrived and the case for reform of the PCC appears tobe unanswerable,” says Marthoz in his report .

Aidan White, IFJ General Secretary said today

“It is clear that the PCC got itself into the no-man’s-land of ethical journalism.  Our report shows that it was hopelessly caught between two forces at work in journalism that pull in diametrically opposing directions. In doing so it exposed its own profound weakness as a credible self-regulator.”

The IFJ report was commissioned as part of the IFJ Ethical Journalism Initiative, a global campaign supporting ethical conduct in journalism and calling for credible and transparent forms of self-regulation in media. In his report Marthoz highlights a number of key reforms that could rebuild trust in a self-regulator for the British Press, including adopting the right of reply for people who are victims of press misbehaviour, a clause of conscience to allow journalists to opt out of unethical working practice and for more transparency in all areas of its operational work.

He also argues that it needs to have the power and mandate to carry out proper investigations and he describes its inquiries into the hacking affair as wholly inadequate.He calls for a paradigm shift that would give a reformed regulator the voice and authority to speak out over press standards and to eliminate the impression that its current role is to be the defender of a press industry that is increasingly short of public confidence.  He concludes

“The time has come for partisans of self-regulation to demonstrate the value of journalism as a public good and the media’s real commitment to the highest ethical standards in a profession that is a key pillar of a vibrant and principled democracy.”

The full report can be found here.

Simon Singh, Science and Comment

March 1, 2010 / / 1 Comment

The campaign by Simon Singh and his supporters to overturn the finding of Mr Justice Eady in the British Chiropractic Association v Singh case (discussed by us here) has largely focussed on the operation of the defence of “fair comment” in English libel law.  Mr Singh and his supporters have argued the problems which his case is believed to illustrate can dealt with by treating “scientific judgments” as “comment”.  Continue reading

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