I make the case in Part 1 of this post that there are good policy reasons why Section 1(2) of the Defamation Act 2013 (“the 2013 Act”) does not always best serve the public interest. However even if the Section 1(2) hurdle were absent, a corporate claimant whose product or business practices have wrongly been attacked is likely then to be confronted with a “public interest” defence under Section 4.

I have never understood either the wisdom or lawfulness of what prior to the 2013 Act was called the Reynolds defence, now codified as Section 4 . I will refer to both defences in the rest of this article as “the Defence”.  For years I used mount “voice crying in the wilderness” attacks on the Defence in articles for such publications as the Entertainment Law Review. Only very occasionally would much more distinguished libel practitioners than I hint that they at least to some extent agreed with me. One top libel silk described the Defence to me as “b****cks”.

As to the wisdom of the Defence, in both its common law and statutory incarnations; this is what Lord Hobhouse said in his speech in Reynolds v Times Newspapers [2001] 2 AC 127 to the then House of Lords;

“The liberty to communicate (and receive) information has a similar place in a free society but it is important always to remember that it is the communication of information not misinformation which is the subject of this liberty. There is no human right to disseminate information that is not true. No public interest is served by publishing or communicating misinformation. The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society. There is no duty to publish what is not true: there is no interest in being misinformed. These are general propositions going far beyond the mere protection of reputations.”

I agree, and therefore could not journey with the distinguished law lord along the tortuous intellectual road which he travelled to co-create the Defence the precise effect of which was to create a “human right to disseminate information that is not true.” If he is right about there being no public interest in misinformation – as he surely is – how can the public interest possibly be served by a defence the effect of which is that false statements on matters of public interest do go uncorrected; a question which I have put to many distinguished libel lawyers and for which I have still to receive a credible answer.

Two have said to me that journalists must be permitted to make mistakes. But that misstates the true effect of the Defence. What it actually does is to permit journalists to make mistakes at the expense of the innocent victims of those mistakes. How can that possibly be right where in a case such as Flood the innocent victim is a “front line” public servant (a police officer), and the errant publisher (News Corp) enjoys a turnover measured in the billions of dollars?

The Defence is unlawful

Superficially the defence is compatible with the Convention – there is a “Strasbourg version” which speaks of the “ethics of journalism”. However, as I set out below, the “ethics of journalism” as it is perceived in the UK by no means provides any justification for the Defence.

For the Defence to be lawful it must not fall foul of either Articles 8 or 10 of the ECHR. I believe it contravenes both. As to Article 8, the question arises as to whether such a defence is “necessary in a democratic society”. For the reasons eloquently cited by Lord Hobhouse, the answer must be “no”. I illustrate the mischief inherent in this defence – which should exist rather as a primary factor in the award of damages, capable of reducing them by 100% – later on in this article.

As Lord Hobhouse rightly observed; “The working of a democratic society depends on the members of that society being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society.” (emphasis added)

Applying this wisdom to Article 10 which accords to society to right to receive (true) information, Lord Hobhouse states that the working of a democratic depends on society not being misinformed. The effect of the Defence is not only that its very existence facilitates the misinforming of society, editorial decisions being informed by it; but also that when society is misled the Defence robs it of any remedy. The Defence should therefore have no application to “misinformation”. Furthermore, since its effect is to prevent society from learning when it has been misinformed, Article 10 is therefore contravened rendering the Defence unlawful.

The Defence is absurd and contravenes journalistic codes – i.e. “the ethics of journalism”

One of the other absurdities of the Defence is that both the IPSO and NUJ codes, a set of ethical principles written by journalists, stress the need the “information” that journalists disseminate to be accurate. Section 1(i) of the IPSO Code says this; “The Press must take care not to publish inaccurate, misleading or distorted information…”. The NUJ code obliges journalists to “Strive to ensure that information disseminated is honestly conveyed, accurate and fair.”

Both codes also stress the need for “misinformation” to be corrected. Section 1(ii) of the IPSO Code says this; “A significant inaccuracy, misleading statement or distortion must be corrected promptly and with due prominence…”. The NUJ Code requires journalists to do their “utmost to correct harmful inaccuracies.”

How is it then that the law has taken a directly contradictory stance in creating the Defence, supposedly “in the public interest”? As one distinguished libel silk (now on the bench) one said to me, the corporate media “hunts as a pack”. Their “free expression” rights are all too often exercised at a volume which drowns that of the infinitely greater majority of society who thereby lose their right both not to be misinformed, but also not to have damaging untruths told about them with no remedy.

The Defence has done great harm

There are a number of instances which I could cite from my own practice where the impact of the Defence has directly contravened the public interest. I will mention only one. I acted for an MEP who was an ex GP, and plainly a man of great integrity. The Sunday Times accused him of failing to declare in interest on an issue about which he was speaking in the European Parliament. The MEP sent me all the papers which proved beyond any doubt that the allegation was false.

I made a complaint for him to the Press Complaints Commission (IPSO’s equally flawed predecessor), which in an adjudication of breath-taking intellectual dishonesty, was rejected. The Defence made any libel proceedings unviable. So it was that the democratic process was undermined by a national newspaper and the Defence had robbed the MEP of his Article 8 rights and the public of the Article 10 rights, and accordingly of their democratic rights. This was the very undesirable outcome that Lord Hobhouse spoke about.

I will cite only one other egregious example to add to the Flood case; that of Colonel Campbell-James, who was wrongly accused by the Guardian of being involved in the appalling abuse of Iraqi prisoners in the Abu Ghraib jail. However not only was he not at the jail at the time, he was not even in Iraq. Not only was this a false allegation against a distinguished army office, it was also a serious allegation against his regiment, the British army and the British state, the effect of which was to place other British soldiers serving in Iraq at risk of reprisals.

To its immense shame the Guardian initially cited the Defence as its justification for refusing the retract the allegation, a defence which it presumably thought would succeed. As Mr Justice Eady observed in his judgement ([2005] EMLR 542), which merits reading in full and was damning of the Guardian; “It was not simply a matter of good journalistic practice; it was a matter of elementary human decency.”

Only grudgingly and belatedly did the paper retract the allegation, and only paid damages when ordered to do so by a court. There were two malefactors here; the paper and the Defence. The latter was probably responsible both for the publication of the article as well as the paper’s lamentable three-month long refusal to retract it.

Why the press should not enjoy the licence conferred by the Defence

If the press had agreed to and effective form of regulation which ensured the there was a viable remedy when the public was misled, then there might be some argument to justify the Defence as a complete defence to a defamation claim rather – as it should be – a primary factor in the mitigation of damages. However, the press has again wielded its power to ensure that there is a no such protection for society against its editorial hubris and mendacity.

As the full measure of the criminality at the News of the World emerged, denied to the bitter and by both News Corp and the PCC, Leveson was set up, the News of the World was sacrificed for a respectable period until it could be replaced by the Sun on Sunday, and the PCC was binned after 21 undistinguished years.

Since then even more criminality at News UK and MGN has emerged. Despite all this the press has refused to bow to the near unanimous will of parliament and the public that it be regulated by a Leveson compliant entity. Its hubristic and hypocritical refusal to be regulated by anyone other than itself robs it of the right to the new levels of protection afforded to it by the 2013 Act – which was extracted from our myopic legislature by the press by exercising is “free expression” power over our democratic bodies.

Rather than comply with the modest and reasonable stipulations of Sir Brian Leveson the press has thrust IPSO on us, its fourth incarnation of self-regulation designed to fail just as surely as its three predecessors. IPSO’s much-trumpeted right to mount investigations and levy fines of up to £1m has inevitably resulted in neither a single investigation nor fine. Its own recent report recorded that it rejected more than 90% of the tiny minority of complaints that actually made it to that stage of the process.

These adjudications took many months to complete despite section 1(ii) of the IPSO Code stating that corrections should be made “promptly”. The same provision states that that corrections should enjoy “due prominence”. They never do.

Conclusion

There will of course be small independent publishers who may be confronted by a large corporate entity against whom they have made allegations which the company disputes. This was the situation in the McLibel case cited by Mr Vassall-Adams in his article. The point there however is that the judge in that case found that the allegations were false. The public was therefore misled by them, and accordingly enjoyed the right by virtue of Article 10 to be disabused of those allegations independently of the interests of McDonalds.

The combination of a wholly inadequate an unethical press regulator, and Sections 1(2) and 4 of the 2013 Act presents large corporations who have invested substantially in products which are of immense value to society with insuperable problems if false claims are made about them.

The point would arise most critically if controversy arose over an important medicine such as a Covid 19 vaccine – as it did with the MMR vaccine. Should society thereby be misled, not only then has its collective Article 10 right been abrogated, but the more serious effect which may be may be a medical crisis much more serious than the one created by Associated Newspapers around the MMR vaccine.

In terms of the power to influence the collective thinking of society, even companies as immense as Amazon (for which I have acted) are relatively impotent in comparison with entities such as News Corp and Associated Newspapers, both of which have shown themselves to be willing to wield that power in a way which ill serves the public interest. That much-abused power has been augmented by Sections 1(2) and 4 of the 2013 Act. Some way should be found to redress this.

Jonathan Coad is the principal of Coad Law