There has been a great deal of publicity about the need to reform the law of defamation. This includes:

  • Index on Censorship and English Pen Report on Libel Reform, “Free Speech is Not for Sale”. The publication of this Report was part of a wider campaign for reform
  • Select Committee for the Department of Culture Media & Sport Report on “Press Standards, Privacy and Libel”. This followed a lengthy inquiry, taking evidence from claimants (the McCanns, Max Mosley), defendants (newspapers and other publishers) and lawyers. It was published on 24 February 2010:
  • Jack Straw announced that libel reforms “will be taken forward in the next Parliament” – shortly before the General Election:
  • The Con-LibDem Coalition’s “programme for government” includes a promise “to review libel laws to protect freedom of speech” (page 11) – a formulation which suggests that there is insufficient protection at present:
  • Lord Lester introduced a Defamation Bill into the House of Lords. Its formal first reading was on 26 May 2010 and its second reading on 9 July 2010:

In response to the Bill, the new Government stated a commitment to bring forward its own proposals.  The Ministry of Justice 2011-2015 Business plan indicates that a draft bill will be published in March 2011.

So it is worth looking at some possible areas for reform.

 

(1) Rule out trivial cases?

The cause of action in defamation is based on the publication of “defamatory” statements, that is, something which “tends” to lower the claimant in the estimation of right-thinking members of society generally. In a libel case, the claimant does not have to prove that the publication caused (or even was likely to cause) damage. The cause of action is based on a series of fictions and presumptions (for example, that there is a “single meaning”, which all “ordinary, reasonable” readers or viewers will have understood the publication to bear and the presumption of damage).

The court can rule out cases where the publication is not “defamatory”. For example, in Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB) (Sharp J), the alleged libel was a diary item in the Telegraph which quoted the claimant as saying that she was not a “veggie” and did not “have much time” for people like the McCartneys and Annie Lennox. This, she said, meant that she was “disrespectful and dismissive” of them to the point of being “willing to disparage them for publicly promoting vegetarianism”. Sharp J held that the article was not defamatory – it was “unremarkable” and no-one would have thought less of the claimant. The claimant’s true complaint was that she had not said anything like the words attributed to her – but falsity was “immaterial”.

Another recent unlikely libel claim – Dee v Telegraph Media Group [2010] EWHC 924 (QB) – was brought over an article that described the claimant as the “worst professional tennis player in the world” – when he had, in fact, suffered 54 consecutive defeats in tennis tournaments. The court accepted that the newspaper might well have been “having a laugh” at his expense in the article, but ordered summary judgment in its favour. The undisputed facts were sufficient to justify any defamatory meaning the article might reasonably have borne. While the outcome, with hindsight, seems obvious, the fact is that Mr Dee had recovered damages and secured apologies from a number of other media organisations. They had probably been “chilled” by the risk of an adverse costs order.

There is a perception of a wind of change about trivial libel claims. In another recent decision, the court made plain that the definition of “defamatory” includes a “threshold of seriousness”: Thornton v Telegraph [2010] EWHC 1414 (QB). This ought to assist in weeding out claims which have no real substance. See also Lord Lester’s Bill, clause 12.

(2) Rule out some claimants?

The “McLibel” litigation illustrated the inequality of arms when two individuals faced a massive libel claim brought by multinational corporations. The ECtHR found that there had been a violation of the defendant’s Article 6 and Article 10 rights, but acknowledged the companies’ right to sue: Steel v UK [2005] EMLR 314. There are proposals that limitations of some kind should be place on libel claims by companies: see, for example, Lord Lester’s Bill clause 11. How this might be done is worth further debate.

Local authorities have been prevented from suing for defamation since Derbyshire v Times Newspapers [1993] AC 534 HL. The exclusion has been extended to other types of public (or quasi-public) bodies. But there is no compelling reason to introduce a “public figure” limitation in libel cases, as applies in the United States of America.

(3) The defence of “truth”

The burden of proving that what has been published is substantially true remains on the defendant. This can be a heavy burden, particularly where the charge is a grave one, but requiring defendants to prove truth is not incompatible with Article 10: see McVicar v UK (2002) 35 EHRR 22; Steel v UK [2005] EMLR 314. A reversal of the burden of proof is not required in principle and would give rise to practical difficulties.

Lord Lester’s Bill, clauses 4-5, proposes that the defence should be renamed (as “truth”, rather than “justification”) and suggests some amendments to address technical difficulties that have arisen in practice.

One possible change – which should be strongly resisted – would suggest that a new element should be added to this defence: to require proof not only that what is published is substantially true, but also that publication is in the public interest or for the public benefit. The truth – alone – should provide a complete defence to a defamation claim. Libel should remain distinct from privacy claims, where the truth (or falsity) of the information is irrelevant and a balancing of public interests may be required. Even if the defamatory allegation concerns purely private information, proof of substantial truth should continue to suffice to defeat the defamation claim.

(4) “Fair comment” or “honest opinion”

The law of fair comment has come under considerable media focus. It has long been recognised that the name – “fair comment” – is misleading (the commentator must be “honest”, but does not need to be “fair”) and ought to be changed. But, more important, is the fact that while the defence ought to provide a strong protection for freedom of expression, it remains bedevilled by technicalities and is difficult to mount in practice (it may be as onerous as a defence of justification).

The decision in British Chiropractic Association v Singh in the Court of Appeal [2010] EWCA Civ 350 illustrates that the line between “fact” and “comment” is difficult to draw. Both the judge and the Court of Appeal thought the answer was obvious: the judge thought that what was published was plainly fact; the Court of Appeal was convinced it was plainly comment.  Yet the “comment” defence requires – and is likely to continue to require – that what is published must be “recognisable as comment” or, since the Court of Appeal held that the defence should be re-named as “honest opinion”, “recognisable as opinion”.

It is worth noting that the importance of the distinction between “fact” and “value judgment” has long been recognised in Strasbourg: a requirement that a defendant prove the truth of a value judgment will violate Article 10, although a value judgment which lacks any factual foundation will not be protected. However, in recent cases, arising from political debate, the ECtHR has acknowledged that there are cases where the distinction between statement of fact and value judgments has less significance. For example, in Dyuldin v Russia (2009) 48 EHRR 6, the ECtHR set out the following principles:

“A further aspect relevant to the Court’s determination in the present case is the distinction between statements of fact and value judgments. It has been the Court’s constant view that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by art.10..

In the present case the Court observes that the domestic courts considered all terms employed by the applicants in their publication to be statements of fact without examining the question whether they could be considered to be value judgments. …

The Court considers that the expressions used in the letter should be characterised as value judgments rather than statements of fact. However, since under the Court’s case law a value judgment must be based on sufficient facts in order to constitute a fair comment under art.10 , the difference between a value judgment and a statement of fact finally lies in the degree of factual proof which has to be established. …

The Court would in any event observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present one, where the impugned statement was made in the course of a lively political debate at local level and where elected officials and journalists should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact.” [46-49]

In Strasbourg, it is the type of speech (here, political debate) that determines whether the widest possible protection for free speech is conferred.

The rest of the technicalities of the comment (or opinion) defence are likely to be considered by the Supreme Court in its judgment in the appeal from Joseph v Spiller [2010] EMLR 7 CA (the appeal has taken place and judgment is awaited). In that case, the defendants, who provided entertainment booking services, announced on their website that they were no longer able to take bookings for the claimants’ group because (it was alleged) they were “not professional enough” and had broken their contract. Comment was one of the defences raised. The judgments at first instance and on appeal were mainly taken up with the facts (the defence of justification) and, in particular, an analysis of the enforceability of a contractual re-engagement clause, in the light of the 2003 Employment Agencies & Employment Business Regulations SI 2003/3319. As to comment, the Court of Appeal overruled the judge’s decision that what had been published was fact (not comment) [28-31] and that the comment was not on a “matter of public interest”; but this success by the defendants made no real difference – the appeal court still struck out the comment defence, because of factual errors in what had been published [45-47].

The Supreme Court has the opportunity to address the unnecessary difficulties that have become attached to the requirements of this defence, including in relation to: what facts qualify to support an opinion; the extent to which those facts need to be referred to in the publication itself; and the extent to which the supporting facts need to be proved. Two media organisations intervened in the Supreme Court appeal to raise points of principle affecting the media. Reform is sorely needed to make this defence work. Clauses 2-3 of the Lester Bill, apart from renaming the defence, strip out the unnecessary technicalities and would provide a sound basis for a workable defence.

(5) Responsible publication on a matter of public interest

The Reynolds defence – or Reynolds/Jameel defence – is meant to provide proper protection for responsible reporting on matters of public interest. The essential requirements for the defence can be summarised as:

(1)    Does the publication concern a matter of public interest?

(2)    Were the steps taken to gather, verify and publish the information responsible and fair?

(See Reynolds v Times Newspapers Limited [2001] 2 AC 127 HL, which created the defence, and Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 HL, which revitalised it).

The courts have stressed that, to give proper protection for responsible journalism, the defence must be applied in a practical and workable manner: Bonnick v Morris [2003] 1 AC 300 PC; Harper v Seaga [2009] 1 AC 1 PC. A media defendant cannot, under the guise of this defence, “drag in damaging allegations which serve no public purpose”, but the court should allow for “editorial judgement” about which details it is appropriate to include in a report: see Lord Hoffmann in Jameel at [51].

The first case in which a national newspaper won at trial on the basis of a Reynolds/Jameel defence was Flood v Times Newspapers Limited [2010] EMLR 8 (Tugendhat J). Before this case, the publishers of a book succeeded (on appeal) in Charman v Orion [2008] EMLR 16; “Searchlight” succeeded (at trial and on appeal) in Roberts v Gable [2008] QB 502 (neutral report of a dispute within BNP).

In Flood the article concerned an allegation of corruption (divulging confidential information for money) which was the subject of an internal police investigation. That investigation concluded some time after the original publication of the article: it was unable to find any evidence against the claimant: [4]. The judge upheld the defence in relation to the publication of the article in the hard copy of the newspaper and the initial online publication, but found that the protection was lost in relation to the continuing online publication, which remained the same after the newspaper was aware of the findings of the police investigation. It was not “responsible journalism” to continue to publish without a “suitable qualification”; the continued publication was “not in the public interest”: [249].

The partial victory for the newspaper at trial was short-lived. The judge had carried out a careful analysis of the evidence and legal principles and balanced the right to reputation and freedom of expression [200-219], before concluding that the decision to publish was within the permissible range of editorial judgment. But the Court of Appeal disagreed. It found, unanimously, that the Reynolds/Jameel defence did not protect the original report: [2010] EMLR 26 CA. An application for permission to appeal to the Supreme Court has been made. But the Flood case illustrates that this is an area where, while the principles are tolerably clear, their application to the facts is a matter upon which opinion (including judicial opinion) can differ markedly.

The Flood decision also indicates that a rebalancing of the law, in favour of Article 8 rights, is underway in the area of defamation (as well as misuse of private information). The judge referred to the passage in Lord Nicholls’ speech in Reynolds v Times Newspapers where, after having set out the essential test and illustrative guidelines (at page 205A-C), he ended his summary of the relevant principles (at page 205F) with these words:

“Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”

The judge observed that the last sentence (in bold) above could not stand in the light of the present state of the law, taking into account of the HRA, the Strasbourg cases and the approach set out in Re S (see above). He said that the essential test in a defamation case (as in a misuse of private information case) came down to:-

“…whether publication of the material pursues a legitimate aim, and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to reputation”. see Flood [2010] EMLR 8 at [142], [146], [148-149].

The Court of Appeal agreed with him [2010] EMLR 26 at [21]:-

“In that connection, although the point was not mentioned in Jameel [2007] 1 AC 359, I agree with the Judge (at … paragraph 146) that the last sentence in the passage quoted above .. from Lord Nicholls’s opinion cannot stand following the 1998 Act: it is clear from In re S .. … and ..BBC .. that Articles 8 and 10 have equal weight.”

This approach can only add to the uncertainty of the scope of this protection for the media.

The principles and practical issues in relation to the application of the Reynolds/ Jameel defence (particularly where there is ongoing publication) are of considerable interest and importance. This is a defence that applies to everyone, not only the media. Clause 1 of the Lester Bill seeks to put the Reynolds/Jameel defence onto a statutory footing.

 

(6) Regular, or conventional, qualified privilege

The decision of the Court of Appeal in Clift v Slough Borough Council is still awaited. In that case, the claimant in a libel case, who had applied for permission to add a claim under the Human Rights Act 1998 (since the defendant was a public authority), contested the claim for traditional qualified privilege on the grounds that publication had not been necessary or proportionate to the aim of protecting the council’s employees. The judge, Tugendhat J, drew a distinction between communication to employees (and their managers) who were “customer-facing staff” in specific departments (protected by privilege) and wider publication (not protected): [38]. He looked in detail at what had been communicated and to whom, applying an objective test of relevance to “every part of the defamatory matter published”: [103].

This approach is markedly different from the established approach in a duty/interest case, particularly where there is a pre-existing relationship between publisher and publisher: compare, eg, Horrocks v Lowe [1975] AC 135 HL and Kearns v General Council of the Bar [2003] 1 WLR 1357 CA. On such an approach, publication to all of the council’s employees might well have been protected. Clift is in line with three previous Tugendhat J decisions involving public authorities (W v Westminster City Council [2005] EWHC 102 (QB); Wood v Chief Constable of the West Midlands [2004] EMLR 17 (Tugendhat J) and [2005] EMLR 20 (CA); and W v H [2009] EMLR 11). In Clift, however, he acknowledged that there may be implications in other cases, for example, where the Data Protection Act 1998 (“DPA”) is relevant, failure to comply with its requirements may result in failure to establish a duty/interest privilege, or where there is some other duty to act “responsibly”: [104], [122-123]. An attempt to push the Clift decision further failed in Underhill v Corser [2009] EWHC 3058: Tugendhat J refused to allow the claimant to contend, by amendment, that before a defence of duty/interest qualified privilege can be upheld, the court must be satisfied that the publication met the requirements of “proportionality”. This would, he said, require a radical re-writing of the law of qualified privilege.

(7)  Jury trial:  time to grasp the nettle?

Libel cases are one of a small number of types of civil case in which there is a presumption in favour of jury trial: section 69 of the Senior Courts Act 1981. The right to jury trial was once a vital bulwark of free speech. Now, however, it impedes active case management and adds to the costs – unless the parties agree, issues requiring a jury decision can be determined at an early stage only where the position is beyond argument (where no reasonable jury, properly directed, could fail to reach any other conclusion). Taking away some – or, possibly all – issues from the jury would make cases quicker and cheaper. Is that too high a price to pay? The Lester Bill proposes a removal of the presumption for jury trial, while permitting the court to provide for trial by jury in an appropriate case, where the interests of justice require it: see the Lester Bill, clauses 14-15.  This is an area where change is undoubtedly required.

(8) And another thing….

There are other areas – some very technical – where libel reform is needed.  The development of different forms of mass communication has left the law lagging behind and there is need for a rational and workable reform to deal with those who are (and who are not) liable for “publication” of defamatory material.  Section 1 of the Defamation Act 1996 is outmoded; it does not sit easily with the Electronic Commerce Regulations SI 2002/2013 (which, implementing an EU Directive, provide protection from financial or criminal penalties for those who “host”, “cache” or are “mere conduits” in the publication process, at least, unless and until they have “notice”). Reform requires consideration of international, as well as domestic, dimensions. Secondly, the question of forum shopping – “libel tourism” – has attracted an immense (probably disproportionate) amount of attention. But the USA, at a state and federal level, has introduced legislation to remove the threat posed to its First Amendment (it is said) by libel actions in England and Wales. And thirdly, the “multiple publication” rule, which makes each “download” a new publication, with a new limitation period, causes problems for archives and the media, which continue to publish their reports online long after the original publication. All of these matters are addressed in the Lester Bill (the last by the creation of a “first publication” rule). It is to be hoped that the Government will take these areas on board in its own reform proposals.

(9) And finally – costs

Ask any media organisation about the real problem about legal issues and they are likely to give a one word answer: costs. The many and varied issues of costs in relation to defamation litigation – not least, the Report of Jackson LJ, the changes in the CPR relating to costs budgets and ATE insurance premiums, and the level of CFA success fees – are outside the scope of this paper.  But, in practice, it is not the substantive law that causes the major headache for the media – it is the costs of going to court.

Heather Rogers QC is a barrister at Doughty Street Chambers.

This is an edited extract from a paper presented to the 22nd Sweet & Maxwell Annual Judicial Review Conference on 19 November 2010.