Libel, Damages and the “Remedial Gap”: a declaration of falsity?

27 07 2013

A number of lbel cases involve substantial awards of damages against defendants who are never going to pay.  Sometimes the defendant is in a jurisdiction where a damages award cannot be enforced, sometimes the defendant has no money.

For example, in Metropolitan Schools v Designtechnica ([2010] EWHC 2411 (QB)) the claimant has been awarded £50,000 in libel damages against a US corporation protected against English libel awards by the SPEECH Act.  In Al-Amoudi v Kifle ([2011] EWHC 2037 (QB)) a court awarded £175,000 against a US based individual with no prospects of recovery.

Such damages awards are made because of the remedial inflexibility of English libel law.  In general, the only remedies available to a successful claimant are damages and an injunction.

But this is not a necessary feature of libel law.  In many European countries the primary remedy is an order for the publication of corrections or even apologies.  Sometimes the Court orders the publication of a summary of its judgment.   Remedies of this kind provide vindication without the need for substantial damages.

The Defamation Act 2013 goes some way towards filling the “remedial gap”.  When it comes into force later this year there will be an additional remedy for a claimant.  Under section 12

(1)  Where a court gives judgment for the claimant in an action for defamation the court may order the defendant to publish a summary of the judgment.
(2)  The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree.
(3)  If the parties cannot agree on the wording, the wording is to be settled by the court.

This may be of some benefit in cases where the defendant is an impecunious publisher based in England but would be unlikely to of any help in cases such as Metropolitan Schools or Al-Amoudi because they would require the US courts to enforce an English court order bearing on freedom of speech.  The prospects of such an order being made do not seem to be very good.

It is perhaps unfortunate that the Defamation Act 2013 did not further extend the range of available remedies in libel cases.  In Ireland section 28 of the Defamation Act 2009 provides for the new remedy of a “declaratory order”.  A court may make such an order if it is satisfied that

(a)  the statement is defamatory of the applicant and the respondent has no defence to the application,

(b)  the applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement, and

(c) the respondent failed or refused to accede to that request or, where he or she acceded to that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.

An applicant for such an order is not required to prove that the statement to which the application concerned relates is false and when an application for such an order is made the applicant is not entitled to bring any other proceedings in respect of the same cause of action.

Another possible remedy is a “declaration of falsity”.   The Court could make a public declaration that the defamatory allegation was false.  At present this remedy is only available under section 9 of the Defamation Act 1996 – on the summary disposal of a claim under section 8.

In Loutchansky v Times Newspapers (No.6) ([2002] E.M.L.R. 44) it was held that a declaration of falsity was not available at common law.  This decision has been criticised by Jonathan Coad in a piece entitled “The price of truth found to be too high in the new law of libel” but it was not appealed and remains the law.

A declaration of falsity was made in the case of Salman Rushdie v Evans and others in 2008.  There is a news report of the case in the Press Gazette. It is not clear whether this was made by agreement or under the summary disposal procedure.  Nevertheless, there is considerable substance in the subsequent comment of Mr Rushdie’s counsel, Geoffrey Robertson QC when he said that his client had

“pioneered a new way of reconciling the right to freedom of speech with the right to reputation – you nail the lie for all time with a court ordered declaration of falsity and you receive your legal costs, but you decline to chill free speech by putting authors and publishers to an expensive trial and making them pay heavy damages”.

A “declaration of falsity”  would provide a way of vindicating claimants without awarding damages.  A court determination of the falsity of a defamatory allegation would be placed on the record and could be relied on by the claimant to vindicate reputation.

This is often the only thing that a claimant wants – for it to be publicly declared that he or she did not engage in the conduct alleged.  If the remedy of a declaration of falsity were to be made available, the claimant could be required to prove the falsity of the allegations.  The fact that there is a “privilege” or “responsible journalism” defence in such a case would then be relevant only to costs.  The question as to whether there is such a defence is irrelevant to the truth or falsity of the underlying allegation (and to the public utility of that falsity being established).

In the absence of statutory reform any development of this remedy would be a matter for the Courts.  The time has, perhaps, come for the Lotuchansky decision to be reconsidered.


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30 07 2013
Free expression in the news - Index on Censorship | Index on Censorship

[…] Libel, Damages and the “Remedial Gap”: a declaration of falsity? A number of lbel cases involve substantial awards of damages against defendants who are never going to pay. Sometimes the defendant is in a jurisdiction where a damages award cannot be enforced, sometimes the defendant has no money. (The International Forum for Responsible Media Blog) […]

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