‘Free comment on private lives under the Defamation Bill’? – Gavin Phillipson

Comment is free; facts are sacred runs CP Snow’s famous aphorism; a perusal of the comment section of blogs and online newspaper articles would suggest that there is usually greater enthusiasm shown for the expansive first part of this noble sentence than for its more sober and demanding second part.

The defence in defamation law of ‘fair’ or ‘honest comment on a matter of public interest’ seeks to encapsulate both of its parts, by allowing for liability-free expressions of honest comment, provided that there is some even rough-and ready factual basis that could be seen to support it. But should comment be as legally free on people’s private lives? And what difference will the forthcoming Defamation Bill 2012 make to this issue?

The Government has recently made its formal Response to the Report of the Joint Committee on the draft Defamation Bill (Government’s Response to the Report of the Joint Committee on the Draft Defamation Bill’ (Feb 2012) Cm 8295; hereafter “Response”). On the whole, the Government has gone with the more sensible suggestions of the Joint Committee, rightly resisting some of its less balanced suggestions. But in one respect, this post argues, the Government has endorsed a serious mistake by the Committee, one that would raise a serious question about the new law’s compatibility with Article 8 ECHR. This relates to the requirement that for opinion to benefit from the new statutory defence of ‘honest comment’, it must relate to a matter of public interest. Teasing out the implications of this change is a matter of some complexity – and it appears that neither the advocates of the change nor the Government has recognised this, or the now serious probability of a breach of Article 8.

Clause 4 of the Draft Bill is one of the mixed provisions of the Bill, which partly codifies and partly reforms the previous common law defence.  It provides, in part as follows:

 “4 Honest Opinion

The suggestion by the Joint Committee then, was simply that condition 2 – requiring the comment to be on a matter of public interest – be ‘dropped’ as ‘an unnecessary complication,’ a change strongly supported by the Libel Reform Campaign and now accepted by the Government (Response at para. 32)  JUSTICE, in its evidence to the Commitee, also supported this proposal:

We can see no good reason why the freedom to express one’s opinions, honestly held, should be constrained by a requirement to demonstrate that the opinion relates to a matter of public interest. We note that Lord Phillips in Spiller v Joseph also doubted the need for this requirement…Any article 8 concerns are properly the subject of the law governing privacy, not defamation.

Similarly, The Media Law Resource Center urged the dropping of the public interest requirement, noting in relation to the Government’s Article 8 concerns:

We strongly urge that concerns for respect for private life not be imported into defamation law. Defamation law is designed to protect reputation in the community and should not be blended haphazardly with concern for privacy rights which are subject to different legal theories and defences.

Such comments evince the desire of many pro-media advocates of libel reform to keep Article 8 out of libel law. Now JUSTICE may simply have meant that if an objected-to comment on private life is made, then the remedy should appropriately be sought under the law of misuse of private information, not under libel law. This is what the Joint Committee seems to have had in mind in stating that

“The law’s protection of the right to personal privacy and confidentiality…can be used to prevent people from expressing opinions on matters that ought not to enter the public domain”.

Similarly, the Libel Reform Campaign argued on this point that, ‘privacy law covers publication on matters of a private nature (medical records etc).’ However, such comments fail to appreciate the complexity of this area. A number of different scenarios concerning comment on private matters logically arise and must be taken in turn.

The first is the scenario in which private facts about an individual have previously been published and given rise to liability under the new extended action in confidence/tort of misuse of private information; is adverse comment on those facts permissible under defamation law? The Media Law Resource Centre addressed this scenario, saying:

In the Max Mosley privacy case the High Court held that reports about Mr. Mosley’s… S&M sessions did not involve a matter of public interest. It would be ludicrous to carry this forward and hold that opinions about his conduct are defamatory and not to be uttered because the conduct involved a private matter.

However, it is not at all clear that such a finding would be ‘ludicrous’. The Bill will rightly not protect ‘bare opinions’, regardless of whether there is a public interest requirement or not: there must be at least some factual basis for defamatory comment. In this scenario, newspaper commenting adversely on Mosley’s private life would be relying on the facts being generally known to the public (famously, no injunction was granted in Mosley’s case). However where the facts should have never have been revealed to the public, because doing so involved a breach of Article 8, it would appear to be arguable that the same or another media body should not be able to rely on the legal wrong of another in publishing those facts, in order to be able to use them to render their defamatory comments immune from liability. The counter-argument would be that, once the facts are generally known, it would be futile to try to prevent others commenting on them; the analogy would be the view the courts take that, once confidential information has been widely published – even if wrongly – it would be pointless and therefore disproportionate to seek to enjoin further publication of those facts, since the ‘ice-cube’ of confidentiality has melted and the damage to privacy done.

If this argument were accepted, the result would be that defamatory comment on private matters would be permitted in such circumstances except where publication of the relevant facts had been enjoined. (Where there was an injunction, the commentator might breach it if they published the relevant facts or would at least risk incurring liability in damages). However, if the ‘public interest requirement’ of the honest comment defence were removed, then the message sent to courts would be that comment, including on private matters, was always permitted, provided that some facts existed that could lead an honest person to hold the relevant opinion. Thus the removal of this requirement would put defamation law in tension with privacy law: disparaging opinions on private life lacking a public interest would be lawful when the disclosure of the related private facts would not.

Second there is the scenario in which a newspaper expresses a defamatory opinion about a person’s private life without relying on previously stated facts; consider, for example,  of a prominent, married QC: ‘she may be a good advocate but her private life is totally immoral’. It is too hasty to say, as the Joint Committee and others above do above, that such statements could be dealt with by privacy law. The above is a defamatory opinion, not the disclosure of private information. The tort of misuse of private information is concerned with the latter, and so seemingly could not capture publication of such an opinion. (Though there could be a remedy under the Data Protection Act 1998; under the Act ‘personal data’ ‘includes any expression of opinion about the individual’ (s 1(1))).  So in this scenario the privacy tort could not in fact help. The issue in defamation law would then turn on whether any facts could be adduced in support of the action. If no facts existed then the opinion would be a ‘bare one’ and there would be liability in defamation, regardless of whether there was a public interest requirement or not.

However, if the commenter were able to produce facts that could give rise to the opinion then we would be in a third scenario. It must be noted that, under the Bill, the facts do not need to be referred to in the article. In this case, suppose the facts relied on were the commenter’s knowledge that the QC had an ‘open relationship’ with her husband, whereby both parties occasionally had sex with other people, with their spouse’s full knowledge and consent. One course here would be for a judge to hold that, where the facts relied on to support the opinion could not be stated without violating Article 8 and incurring liability under the privacy tort, then they should be held to be legally ‘inadmissible’ for the purposes of supporting the honest comment defence in defamation.

The argument would be that the defendant could not rely on their own legal wrong of publishing private facts in order to render protected their otherwise defamatory opinion. It would follow that, since the supporting facts could not adduced in court, the comment would be treated as a ‘bare one’ and thus not protected by the ‘honest comment’ defence; liability under defamation would therefore arise. But such a line of reasoning depends on the current requirement that the opinion must be on a matter of public interest. If this requirement were removed, a court would presumably have to take the view that there was simply no question of any opinion supported by some facts incurring liability on the grounds that it concerned private life. The result of this would be to allow a form of circumventing of the private facts tort through the publication of disparaging and damaging opinions on private life: these cannot incur liability under the private facts tort (since that requires publication of private information); but nor (on this reading) would they incur liability in defamation, because opinions – even on private matters – would be protected, provided they were honestly held and had some factual support.

It is for this reason, then, that the requirement of public interest should not be dropped from the public interest test. This also, it may be noted, provides an argument against the Bill dropping the common law’s current requirement that the defendant must refer to the relevant facts in the defamatory publication. If the defendant were required to state the relevant private facts when advancing their disparaging opinion then the publication (assuming it lacked a public interest) would necessarily disclose private information; in such a case, it could be remedied under the private facts tort and the possible loophole in common law protection would be closed.

Finally, it is contended that to provide for liability in relation to disparaging comment about a person’s private life would better reflect the Strasbourg approach. Strasbourg has held that states may justifiably punish such comment in order to uphold the Article 8 rights of those disparaged: Tammer v Estonia (2003) 37 EHRR 43. Moreover, the requirement that, to benefit from Article 10 protection, speech should concern a matter of public interest, is very firmly established in the Strasbourg case-law. As the Court said in its seminal Von Hannover judgement:

the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the [publication] make to a debate of general interest. ([2004] E.M.L.R. 21 at [76]).

In a recent libel case concerning disparaging comments made by Katie Price about whether her ex-husband, Peter Andre, really loved one of his children, H, unconditionally, Tugenhadt J expressly considered whether the requirement that comment must be on a matter of public interest was compatible with Arts 8 and 10 (Andre v Price [2010] EWHC 2572 (QB)). Although he flagged a cautionary note on this point (at para 82), his conclusion was strongly that it was compatible: noting the Von Hannover case, Tugendadt J concluded that a celebrity’s Art 8 rights included the right not to be subject to ‘comment…about their private life’ and that in this case  the Art 10 rights of Price did not outweigh the Art 8 rights of Andre and the child.’ (at para 92).

Thus, where speech is primarily concerned with a critique of someone’s private life, it will generally be seen as of decisively lower value, easily outweighed by reputational or privacy interests. Defamation law should recognise this by requiring that defamatory comments should be on a matter of public interest in order to attract protection under the ‘honest comment’ defence. This would ensure that both defamation and privacy law continue to develop in a harmonious way that answer to the relevant Article 8 and 10 values. Otherwise the result will merely be complex litigation in which newspapers seek to use ‘comment’ as a way of dragging peoples’ personal lives into disrepute in circumstances where to make the factual allegations that could justify the opinion would clearly incur liability under  the tort of misuse of private information. Encouraging the publication of derogatory opinions about people’s private lives, where the relevant facts cannot be published without liability, is scarcely an aim that is in harmony with Article 8 – or indeed Article 10.

It should finally be noted on this point that, if Parliament does not include the ‘public interest’ requirement’ in the honest comment defence, the courts might ‘read it back in’, using section 3 HRA, in reliance on the Article 8 arguments canvassed above. But this would (a) require litigation; and (b) result in the statute’s prima facie meaning diverging from its judicially-interpreted meaning. Such outcomes would detract from the Bill’s key aim of enhancing defamation law’s clarity and accessibility.

The above leads onto a final issue which Hugh Tomlinson has raised previously in previous posts on this blog: whether, as Tugenhadt J put it in the Terry case, it should remain the case that, in defamation law, ‘the defendant is free to [disclose any facts that are] true, however harmful or distressing, even if there is no public interest or public benefit.’([2010] EWHC 119 (QB), at [80]). The opposite of course is the case in privacy law. This raises the question whether, rather than removing the public interest requirement from the ‘honest comment’ defence, it should be added as a requirement of the Truth defence to the publication of defamatory factual allegations. Tomlinson, amongst others, has advanced the view that the absolute nature of the truth defence may not be compatible with Article 8.

The relevant issue is not where the facts disclosed relate to private life: even though true, such disclosures could be remedied under the privacy tort. Rather it concerns disclosures of fact that, although not concerning a person’s private life, are so damaging that they affect the claimant’s personal integrity, thus engaging Article 8. An example might be the public exposure of dishonesty or gross incompetence in a hitherto non-public figure in circumstances where the publicity had a devastating effect upon them. Is the mere truth of such allegations, with no broader public interest in them, sufficient to justify the damage to their Article 8 rights? No opinion is offered on that issue here, but it illustrates the point that the removal of the public interest requirement from the honest comment defence could take the law in the wrong direction – away, rather than towards the values underpinning Article 8.

Gavin Phillipson, is a Professor of Law at the University of Durham.  He was the academic member of the Ministry of Justice Working Group on Libel Reform.

The above is draw from an article by the author, entitled, The ‘global pariah’, the Defamation Bill, and the Human Rights Act’, which is about to appear in the Northern Ireland Legal Quarterly: (2012) 63(1) NILQ 149-86.