In English law there is an absolute bar to claims by public bodies in defamation. It is the purpose of this three part post is to explore whether this bar is justified in principle or by the jurisprudence of the European Court of Human Rights. In the second post, the present position will be compared with the current state of the law in Germany, with some references to the law in the United States of America. It will be suggested that the position there demonstrates that the right for public bodies to make such claims is useful and unobjectionable. In the third post it will be argued that in view of developments in English law as a result of the Reynolds case and in relation to remedies, it would be both desirable and possible for English law to move to such a position.
The nature of the bar
The House of Lords in Derbyshire CC v Times Newspapers Ltd ( AC 534), decided that a local authority should not be able to sue in defamation. It was a democratically elected government body, and it was very important that it ‘should be open to uninhibited public criticism’. There was no public interest that central or local government organs should be allowed to sue for libel: it was actually contrary to the public interest. The conclusion was reached on the basis of the common law, which was said to be in agreement with Art. 10 of the European Convention on Human Rights.
Derbyshire was applied to the British Coal Corporation in British Coal Corporation v National Union of Mineworkers and Another (QBD, 28 June 1996, unreported) on the basis that it was under the close control of a minister of a democratically elected government: and to political parties in Goldsmith and Another v Bhoyrul and Others ( QB 459.)
Government bodies or political parties can still sue in defamation if they can prove actual financial loss. It is very likely, however, that all the body or party really wants to do is to establish the truth. Claims can also be made in malicious falsehood, on proof of falsehood, malice (in the sense of improper motive) and actual loss Prosecution for libel is not now possible as a result of s 73 of the Coroners and Justice Act 2009 (in force from 12th January 2010).
Influence of US and South African cases
Two American cases and a South African case were cited in the Derbyshire case..
In City of Chicago v Tribune Co ((1923) 139 NE 86), it was held by the Supreme Court of Illinois, on the basis of the right to freedom of speech on the Illinois Constitution, that people criticising government bodies were completely protected against civil liability – even for malicious falsehood.
In New York Times v Sullivan ((1964) 376 US 254) the US Supreme Court held that because of the First and Fourteenth Amendments to the US Constitution a public official could not obtain damages for defamation in relation to his official conduct, unless actual malice could be proved ie that the maker of the statement knew it to be false or was reckless as to its truth.
In Die Spoorbond v South African Railways (1946 AD 999) a decision by the Supreme Court of South Africa, Schreiner JA was prepared to assume that the Crown might have a reputation when trading in competition with its subjects, but he thought fairness and convenience were against the Crown being able to sue the subject.
Justification for the bar
Two questions arise:
1 Should a public body be regarded as having a reputation?
The right to sue in defamation has been extended to cover trading corporations (South Hetton Coal Co Ltd v North Eastern News Association Ltd.  1 QB 133), and trade unions (National Union of General and Municipal Workers v Gillian  KB 81). The argument for extending protection to public sector bodies is perhaps stronger, as they also exercise important public functions. Public sector employees are often subjected to abuse and obstruction. Yorkshire Water Authority were at one stage so unpopular that staff were told that they need not wear their uniforms in public.
2 Should freedom of speech prevent claims for defamation by public bodies?
A bar to claims by public bodies in defamation is not sufficient to secure free speech. Such a bar already existed in US law because of City of Chicago, but it was not adequate to protect the press in Sullivan as the claim there was made by a public official. Art 10 of the European Convention on Human Rights gives particularly strong protection not just to political speech but also to matters of public concern or public discussion. The protection given to public officials by Sullivan in US law has been extended to embrace public figures in general (Curtis Publishing Co v Butts, Associated Press v Walker 388 US 130 )
Nor is a complete bar necessary to ensure freedom of speech. Freedom of speech cannot justify deliberate or reckless lies about public bodies, nor clearly negligent ones either.
Attitude of the European Court of Human Rights
The European Court of Human Rights has not taken the same approach as the Derbyshire case. In Lombardo v Malta, ((2009) 48 EHRR 23, Case Comment (2007) 4 EHRLR 460) modest damages had been awarded to a local council in respect of a statement by the applicants. The Court held that as elected political bodies should display a higher degree of tolerance to criticism, the award of damages (albeit small) was disproportionate. But it considered that in exceptional circumstances a measure banning criticism of an elected body could be justified by the exception in Art 10(2) of the European Convention on Human Rights relating to the protection of the rights or reputations of others. Allowing a government body to sue will therefore be within a state’s (narrow) margin of appreciation.
Raymond Youngs, is a Senior lecturer in law, Kingston University.
This is an edited version of a paper originally published in Communications Law, “Should public bodies be allowed to sue in defamation?” can be seen in Communications Law: Comms. L. 2011, 16(1), 19-26. It is reproduced with the kind permission of Communications Law and with thanks.