Last week, the civil liberties and human rights Liberty announced that it was seeking to intervene in the libel claim brought by PC Toby Rowland against Andrew Mitchell MP arising out of the so-called “Plebgate” scandal. This raises an interesting issue as to the extent to which public officials should be able to sue ordinary citizens for libel.
Liberty argues is that it is
“constitutionally dangerous in a democracy founded on the Rule of Law for police officers to be able to instigate libel proceedings against individual citizens. By holding the threat of legal action over those who disagree with the police’s version of events, the police will be effectively insulated from complaints about their actions”.
It also relies on an the fact that most individuals cannot afford to fund the defence of libel proceedings:
“Because most people have no access to libel litigation funding and police officers are likely to receive financial support from the Police Federation, Liberty argues that there would be a discriminatory inequality of arms in such circumstances”.
The Director of Liberty, Shami Chakrabarti, expands on the argument in an article originally published in the Sunday Times entitled “A policeman’s lot must include being called a liar“. She repeats the argument about the lack of funding for ordinary citizens but makes it clear that Liberty’s objection is limited to a particular category of actions by police officers:
“I am talking about disputes arising in the normal course of an officer’s duties – not, for example, the situation where I take to the internet or airwaves with bad character statements about an officer, completely unrelated to any on-duty encounter between us”.
These are powerful arguments. If a police officer, with financial support from the Police Federation, can use the law of libel to suppress public criticism of her or his behaviour then legitimate public criticism could be suppressed. The English law – in common with that in a number of other jurisdictions – prevents public bodies from suing for libel (see Derbyshire County Council v. Times Newspapers Ltd  AC 534). Why not extend this doctrine to actions by public officials in respect of matters relating to their performance of their duties?
There is also plainly an “inequality of arms” issue although the position is, at present, not quite as bad as Liberty suggests. Claims for defamation are presently exempt from the abolition of recoverable success fees and After the Event Insurance. This means that defendants can enter into to Conditional Fee Agreements with lawyers who will recover a “success fee” from a claimant if their defence is successful and can potentially insure against the claimant’s costs at no cost to themselves. This provides a measure of protection for ordinary citizens against bullying claims by police officers.
The proposal is a radical one and one which appears to be unprecedented in any legal system. There seems to be no example elsewhere in the world of the kind of prohibition on claims by public officials proposed by Liberty.
In their brief survey of libel claims against Public Bodies and Public Officials, the free speech NGO Article 19 draws attention to the fact that
“Several established democracies do not allow public bodies to sue for defamation under any circumstances, both because of the danger to freedom of expression and because public bodies are not seen as having a ‘reputation’ entitled to protection”.
However, Article 19 does not draw attention to any examples of a similar restriction on claims by public officials. Instead, it draws attention to the very well established doctrine under the European Convention on Human Rights that
“The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance” (Lingens v Austria (1986) 8 EHRR 407, ).
But the Court of Human Rights has accepted that there is a countervailing public interest: that public officials should enjoy public confidence, so it may be “necessary for the State to protect them from accusations that are unfounded” (see, for example, the recent case of Lavric v Romania  ECHR 44; and our post here).
Even in the United States – where the First Amendment provides very strong protection against libel actions – the protection against claims by public officials is not absolute. In the famous case of New York Times Company v. Sullivan (376 U.S. 254 (1964)) the Montgomery, Alabama Police Department Commissioner sued the New York Times for libel over an advertisement containing a false statement. The US Supreme held that the First Amendment protects false statements about public officials because “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” As a result, it decided that a claim in defamation would only lie against a public official where the statement is made with actual malice. The public official has to prove that the challenged statement was published by those who either knew it was false or were reckless in verifying its accuracy.
In other words, if a citizen makes a complaint about the on duty behaviour of a police officer in the United States, the officer can bring a successful action for libel if s/he can show that the citizen was malicious. This is a very difficult hurdle to overcome but does mean that, in some circumstances, police officers can bring court action against their critics.
The Liberty proposal would, it appears, not permit action even in circumstances where a police officer alleges that a complaint about her/his conduct is false and malicious. This would extend the protection of citizens beyond that which is available in the United States.
There also appear to be practical difficulties. The Director of Liberty suggests that the prohibition on bringing libel actions relates only to criticism arising out of “on duty encounters” but not to “bad character statements”. But this is a line very difficult to draw in practice. Would it mean that police officer could not sue a citizen who falsely claimed that s/he had accepted a bribe on a particular day, but would be able to sue a citizen who said that s/he was a corrupt officer who had accepted bribes (even though the citizen would then, presumably, defend the action by relying on the specific bribe)?
It is obviously important to ensure that police officers do not use libel actions to suppress proper public criticism of their actions. On the other hand, police officers – like all other citizens – have a right to their reputations, protected by Article 8 of the Convention on Human Rights. The law has to strike a balance between two important and sometimes conflicting rights. It is difficult to see how that balance can properly be struck by providing that one right must always prevail. There is a strong argument that Liberty’s proposal would, itself, be incompatible with the European Convention on Human Rights.