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Diploma Law Enforcement – Defamation : Tort Law

By April 23, 2021No Comments

Whether the current English defamation law strikes a balance between the effective protecting of reputation and upholding freedom of speech. 

Prior to the enactment of the Defamation Act 2013, the United Kingdom was known as the ‘libel capital of the world’. One may say that this is attributable to the UK’s particularly claimant-friendly defamation law that protects reputation fiercely. This position arguably threatened freedom of speech and expression, particularly of the press. Following a decade-long protest against the one-sided pro-reputation law in England, Parliament has sought to balance the scale in favour of protection of the right of free speech, or arguably so, through the passing of the Defamation Act 2013. This essay seeks to evaluate impact of this 2013 Act and to evaluate the extent to which it has achieved a better balance between the protection of reputation and the protection of freedom of speech. In this discussion, the candidate will first outline the changes brought by the 2013 Act and then proceed to evaluate in light of the Article 10 EHCR right of free speech and expression. 

The Defamation Act 2013 which came into force 1 January 2014 has its origins in common law, and yet one could say that the Strasbourg jurisprudence in relation to Article 10 ECHR has had its fair share of influence on the new Act. Such influence can be seen in the introduction of a new requirement of ‘serious harm’, the enhancing of old common law defences, the introduction of new defences, and changes to procedural aspects of defamation lawsuits, including the adopting of the single publication rule, the jurisdiction of the court to hear claims against defendants not based in the UK and the removal of the presumption of a trial by jury. The candidate will discuss these changes and review the same in light of Article 10 ECHR. It is the candidate’s preliminary view that the overall changes made by the DA 2013 do appear to embrace greater protection of freedom of expression although the scales cannot be said to be equally balanced yet.

English defamation law classifies defamatory statements as either libels or slanders. Libels are statements that are regarded as more permanent and thus more damaging. Libels therefore enjoy a presumption of damage, in that a claimant claiming in respect of a libel does not have to prove damage. Examples of libels include printed publications, films (Youssoupof v MGM (1934)) and even statues in a wax museum (Monson v Tussauds (1894)). Slander, however usually refers to spoken defamatory statements, and generally include statements that are less permanent and more fleeting in nature. Slander types of statements are considered less damaging because they are more temporary in nature. Thus, when a claimant sues for a slander, since the law doesn’t regard it as a serious form of defamation, the claimant is required to show damage suffered, in order to succeed against the defendant. Previously, four types of slander would be exempted from the requirement of proof of damage, namely slanders than impute: (i) that a woman was unchastely or adulterous, (ii) that a person has a contagious disease, (iii) that a person is incompetent in his profession; and (iv) that a person has committed an offence punishable by imprisonment. In these four instances, slanders are actionable per se.   

The distinction between libel and slander was said to discriminatory and unfair. The problem was said to lie in the presumption of damage enjoyed by libels. It was argued that libel claims had a higher chance of success, just because proof of damage was not required in libel cases, and this was said to be discriminatory and unfair because in reality, the given libel in a given case would not have caused any actual /real harm to the claimant’s reputation and yet the claimant would have successfully sued and suppressed the defendant.  This was argued to be unfair as it leaves a ‘chilling effect’ on responsible journalism, stifles legitimate debate, encourages ‘libel tourism’ and infringes Article 10 ECHR. Parliament took notice of this “chilling effect” and introduced the requirement of ‘serious harm’ in Section 1 DA 2013 to combat this problem by asserting that a statement is not defamatory unless it has ‘caused or is likely to cause serious harm’ to the claimant’s reputation. For companies, ‘serious harm’ is equated to ‘serious financial loss’. Section 1 is said to minimise the “chilling effect” that flows from the presumption of damage for libels. Arguably, although a claimant in a libel lawsuit today still does not need to prove damage to establish a successful claim, he/she will at least have to show that the statement published by the defendant either caused some serious harm or is likely to cause some harm, failing which the defendant’s right to publish and his freedom of speech and expression will prevail. 

Before Section 1 DA 2013 was enacted, in Jameel v Dow Jones [2005] (CA) and Jameel v Wall Street Journal [2006] (HOL), it was held that the presumption of damage for libels was not rebuttable and that it did not infringe Article 10 ECHR. However, judges did point out that the question of “harm/extent of harm” was relevant in assessing how far judges should go in determining the remedy to be given to a successful claimant. It was suggested, where the publication does not do substantial harm to the claimant’s reputation, any award of damages or the grant of injunction should not punish the defendant too heavily. Further, inThornton v Telegraph Group Media [2011], the HOL held, for a libel to be counted as defamatory the statement must pass a certain threshold of seriousness. It had become apparent that although English common law would not outright remove the distinction between libels and slander by removing the presumption of damage for libels, it acknowledged the unfairness in libel laws and began to demand something more of libel claimants: to justify their claim and to justify robbing defendants of Article 10 rights. 

In proving defamation, one of the requirements to be established by the claimant, is that the statement did carry some defamatory meaning. This was usually judged by looking usually at the natural and ordinary, literal meaning of words (Lewis v Daily Telegraph (1964)) or by looking at whether the statement carried some defamatory meaning by innuendo (Tolley v J.S. Fry (1931); Baturina v Times Newspapers [2011]). In the words of Lord Atkin in Sim v Stretch (1936), a statement would be defamatory in meaning if it “lowered the plaintiff in the minds of right-thinking members of society, that it causes him to be regarded with feelings of contempt, hatred and ridicule”. It is submitted that this approach is somewhat outdated, complicated, vague, impractical and difficult to apply. It may not always reflect the reality of whether a statement did truly defame the claimant as it is decided hypothetically by a jury based on possible biases, prejudicial influences and the sway of emotions. 

It is submitted that this approach meant that a finding of ‘defamatory meaning’ by the jury was very possible even where in truth and in reality, the publication may not indeed have defamed or damaged the claimant’s reputation at all as far as his everyday life goes. He may have suffered no consequence as a result of the publication, but still succeed in court, because the jury is likely to judge a statement as lowering the claimant in their eyes. This approach in common law too can be said to be pro-reputation, giving the benefit of the doubt to the claimant more often than not. Following the S1 serious harm requirement, however, it is submitted, that judges no longer need to apply the vague and uncertain approach in common law, and instead decide by reference to the threshold of serious harm to determine whether a statement is after all defamatory in meaning. This, arguably would be fairer to defendants, and thus tilt the scale further in favour of protecting freedom of speech. 

Section 1 however lacks detail as to what would amount to serious harm for individuals, and it allows for claims founded even on the likelihood of harm (presumably where harm has not yet been caused). Since ‘the real devil, often lies in the detail’, this lack of detail and clarity in Section 1 is unsettling. It is argued that it could lead to “satellite litigations” for interpretative judgements in the foreseeable future. The fact that Parliament has left the definition of ‘serious harm’ is problematic. Apart from uncertainty in definition, one is left to wonder how long a claimant should wait before suing. Should he wait until some harm has been sustained? And if he intends to sue before any serious harm has been sustained, how would a Judge decide whether a serious harm is likely? 

Applying the new provision in Cooke v MGN [2014], the learned Judge found that the Claimants had not overcome the serious harm threshold in Section 1(1). Bean J held that “the serious harm requirement is capable of being satisfied by (inference), based on the gravity of the imputation and the extent and nature of its readership or audience”. Later in Lachaux v Independent Print Limited & Ors [2015], Warby J held that “in enacting s1(1) Parliament intended to do more than just raise the threshold for defamation from a tendency to cause ‘substantial’ to ‘serious’ reputational harm. The intention was that claimants should have to go beyond showing a tendency to harm reputation. It is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of… The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication.” As to timing of an action, Ward J opined, at the material time when the claim is being decided, the court will look at whether there is evidence of serious harm or evidence that it is likely in the future: “A cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable.” These cases show that Section 1 of the Act does indeed represent a “raising of the bar” making it more challenging for all claimants today (libel or slander), and thus, offering better protection of the defendant’s right of free speech. 

DA 2013 has also modernized the law of defamation by simplifying old common law defences and introducing new ones to meet newer trends and channels of publications. Firstly, the old defence of justification was renamed the defence of truth under Section 2 DA 2013. In essence, this defence appears to merely codify existing principles on the previous ‘justification’ defence. Indeed, it is submitted that the new Act has made only a minimal change – Section 2 makes clear that neither the detailed truth of a statement nor the truth of the entire publication needs to be proven true. The defendant only needs to prove the substantial truth of the publication, and if the publication contains more than one defamatory imputation, the defendant only needs to prove the truth of the more damaging imputation for the defence to succeed. It is submitted that the change of name makes the defence easier to understand for laypersons and the forgiving standard of ‘substantially true’ affords the defendant a viable defence. However, the basis of this defence is the presumption that the statement is untrue which admittedly favours the claimant and the protection of his reputation.

Another old common law defence which was renamed and somewhat simplified by DA 2013 is the old defence of ‘Fair Comment’, now known as ‘Honest Opinion’ in Section 3. The provisions contained in this section are said to be built upon the views of the Supreme Court case of Joseph v Spiller [2010] and based upon one’s common law right to hold an opinion and express the same. Hooper, Waite and Murphy commented that although DA 2013 had not significantly changed the law, it had cut away some of its complexities. Following the ruling in Joseph, some complexities were cut away such as (i) the requirement of public interest and (ii) the need to state facts on which one’s comment was based. The conditions to satisfy for this defence as it stands today are firstly, the statement must be an opinion; secondly, that only the basis for the opinion needs to be indicated, and finally, it must be honest. The Explanatory Note to DA 2013 embraces the requirement established in Cheng v Tse Wai Chun [2000] – the statement must be recognizable as a comment and not one of fact. The Note also indicates that the test is what an ordinary person would understand it to be. As for the second condition, the current position is the test laid down in Joseph and reflected by Section 3(3) which provides that the basis of the opinion should be ‘indicated, whether in general or specific terms’. The condition of ‘honesty’ removed the malice factor under the old law – if the opinion was honestly held, the defence would not be defeated, however biased the opinion. It appears the words and intent expressed by Lord Philips in Joseph have been heeded in particular that: “Today the internet has made it possible for the man in the street to make public, comments about others in a manner that did not exist when the principles of the law of fair comment were developed … Millions take advantage of that opportunity.” The new Section 3 does indeed strongly promote the freedom of speech and expression.

Before DA 2013, in Adam v Ward (1917), the common law defence of qualified privilege was established by judges, to deal with situations in which the maker of a statement had a moral, legal or social duty to make a statement and the recipient of the statement had a corresponding interest in receiving the statement. The effect of the ‘Adam v Ward common law qualified privilege’ was to protect defendants who were able to show that a statement had to be made to another, even though it would defame the claimant. Such protection however would be lost if there was malice in the making of such statement. Later, in Reynolds v Times Newspapers [2001], Albert Reynolds (former Irish Prime Minister) claimed against Times Newspapers for publishing that he misled the then Irish Parliament, the same publication leading to his resignation. Times Newspapers argued that the Adam v Ward qualified privilege should cover their publication, on the basis that they had a duty to publish and the public had an interest in knowing. It was argued that alternatively, political publications should especially be privileged, and a new category of qualified privilege should thus be created to cover political reporting.

The House of Lords declined to develop political information as a new subject matter category of qualified privilege, and were not prepared to extend the Adam v Ward defence in its traditional sense to the type of publication in Reynolds. Nonetheless, Lord Nicholls recognised the “high importance of freedom to impart and receive information and ideas” and noted the “press discharges vital functions as a bloodhound as well as a watchdog“. His Lordship also opined that “the elasticity of the common law principles enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.” Acknowledging the importance of the media’s freedom of speech and its role in creating awareness on matters concerning the public, the HOL was prepared to extend privilege to publications that cover a matter of proper public interest and where the publisher had acted responsibly in publishing the information. Whether or not such a privilege would be extended to a particular publication, judges would look at several factors relating to the publication (such as the seriousness of the issue published, the nature and status of the information, whether the claimant was interviewed for his side of the story and whether the claimant’s side of story was published, and the timing of the publication). This defence became known as the ‘Reynolds Defence of Qualified Privilege’. Ultimately, the House of Lords concluded that the article was of public importance, and would attract qualified privilege. However, because the article did not contain a response by Mr. Reynolds concerning the allegations made against him, the House of Lords held that Mr Reynolds had been treated unfairly and privilege was lost. The Reynolds Defence failed here. 

The Reynolds Defence gained favour in later cases such as Jameel (discussed above). In Jameel, the House of Lords upheld the Reynolds Defence in favour of the defendant media, with Lord Hoffmann, delivering the leading judgment, stating that as long as the journalist did behave fairly and responsibly and the information was of public importance, the fact that it contained relevant but defamatory allegations against prominent people would not such prominent people to win to win libel damages. Lady Hale went on to state, “we need more such serious journalism in this country and defamation law should encourage rather than discourage it.” The same sentiment was echoed in Flood v Times Newspapers (2012) in which the Supreme Court upheld the Reynolds Defence, stating that a publication about a public figure receiving a supposed bride from a Russian oligarch was in public interest and should be privileged.

It is clear from these decisions that even before the DA 2013, the judiciary had begun upholding Article 10 rights with greater force. They were clearly trying to offset the chilling effect on responsible journalism generated by the presumption of damage for libels, by allowing the Reynolds public interest defence. Nonetheless, in some instances the Reynolds defence was found to be uncertain in terms of application outside the context of mainstream journalism had been criticised as being difficult to rely on. Parliament responded by abolishing the Reynolds Defence altogether and in its place, enacting a new public interest defence in Section 4 DA 2013.The new Section 4 is said to be significantly different as it makes no reference to ‘responsible journalism’. This this new provision is wider than the Reynolds defence, is more flexible and goes further. 

DA 2013 also introduced a new head of qualified privilege, which is subject to two conditions – the statement must relate to a scientific or academic matter, it must be reviewed by the editor and an expert and must be made without malice. This new defence is known as the defence of ‘peer-reviewed statements in scientific and academic matters’, and is contained in Section 6 DA 2013This provision was enacted in response to cases such as British Chiropractic Association v Singh [2006]. The case concerned a publication by one Mr. Simon Singh, stating that representations made by the BCA about chiropractic treatment and its benefits was not substantiated with evidence. BCA sued for defamation but the court held that such publications such be privileged given their educational importance and value to society. The candidate submits that this too is a new development via the DA 2013, which does appear to tilt the scale further in favour of freedom of speech.

Apart from these developments, DA 2013 also features another new defence, which is a defence for website operators, found in Section 5. It is submitted that while this section does not necessarily affect greater protection for freedom of speech, it is a welcomed development as it effectively codifies the common law position that website operators, search engines and server hosts are merely passive publishers and cannot be found liable unless the claimant is unable to locate the author of a particular defamatory statement on the internet, and contacts the website operator to assist in taking down the statement, but the website operator takes no action within a reasonable span of time. Apart from these defences, the Act also carries forward older statutory and common law defences such as the defences of absolute and qualified privilege relating to official government and judicial publications, documents and reports. This defence is found in Section 7.  Section 10 on the other hand contains the defence of innocent dissemination, which takes after the old version found in the 1952 Act.  It is submitted, however that the position of these defences in the DA 2013 are neutral as to freedom of speech and do not affect the position of English defamation law on Article 10.

The new Act also introduced some procedural changes that will now affect the proceedings of defamation lawsuits. Section 8 introduces the new ‘Single Publication Rule’. This section abolishes the rule that every subsequent publication of the original defamatory work by the first publisher gives rise to a fresh, new cause of action against the original publisher, no matter when the subsequent publication takes place, and irrespective of who republishes it. This rule was applied in cases such as Slipper v BBC (1990), and followed in McManus v Beckham [2002] in which it was held, that the defendant could be liable where the defamatory statement is published in such circumstances where it is reasonably foreseeable to the defendant that it would be repeated by another. Later, in Loutchansky v Times Newspapers this principle was followed where the claimant sued because Times Newspapers had, after being injuncted in respect of a defamatory article in a paper publication, proceeded to publish the same defamatory article online, making in publicly accessible in its archive on its website. It was held that every hit of the article would amount to publication and since there was no such thing as a single publication rule in common law, the defendant could be liable over and over every time the article was published (or clicked on online).  However, it was also suggested in this case that it was time for a change. The old multiple publication rule was clearly becoming more and more untenable in modern times where publications are now made online. The idea of ongoing liability for multiple publications is contrary to free speech, unfairly prejudices defendants, and had to go. 

With Section 8, however, only subsequent publications of the original publication (or those that are substantially the same as the original publication) published within a year of the original publication are actionable. It should be noted that the court’s discretion under the Limitation Act 1980 to extend the time limit remains. It is submitted that Section 8 is not truly a ‘single’ publication rule. It merely manipulates the one-year limitation rule to cut down on ongoing liability but still allows for multiple causes of action within the one-year period. While the law in this area is now more in sync with Article 10, there is much to be improved upon.

In order to combat UK’s reputation as a well-known and preferred libel lawsuit destination, Parliament has also introduced the new Section 9 which seeks to address the problem of ‘libel tourism’ in England. It provides that if a defendant is not domiciled/resident in the UK or the EEA, a defamation action cannot be brought against him, unless the court is satisfied that the UK is clearly the most appropriate place to bring the action. This section helps to promote freedom of speech better as it discourages those with trivial claims, including those from all over the world to take advantage of England’s pro-claimant libel laws. Another point to be noted is Section 11’s removal of the presumption in favour of a trial by jury. Although this provision is merely a reflection of the increasing reluctance of courts to permit jury trials over the last five years due to higher costs of jury trials, it is submitted that generally juries rely on emotions while judges, on reason. This, therefore, might be a good change for better balancing of the freedom of speech and protection of reputation, as juries arguably lean in favour of protecting reputation, often putting themselves in the shoes of the victim, and sympathising with claimants.

In light of the above, it is submitted that the introduction of Sections 1, 2, 3, 4, 6, 8, 9 and 11 DA 2013 in particular, do somewhat take steps forward towards more effective protection of freedom of speech. The central issue in defamations laws is the balancing of the freedom of speech and the protection of reputation, both of which are fundamental rights protected under the ECHR and incorporated into the domestic laws by the Human Rights Act 1998. The regulation of public expression through defamation laws inevitably results in the curtailment of free speech which may infringe Article 10 ECHR. However, Article 10.2 also recognizes that the right of freedom of expression cannot go unchallenged. Excessively loose regulation of free speech may in turn be dangerous as that could severely jeopardize protection of reputation, without due justification. The enactment of the Defamation Act 2013 seems to suggest that English defamation law is leaning towards the protection of freedom of expression as the changes discussed above shows. It is submitted that the Defamation Act 2013 will result in fewer successful defamation lawsuits cases as laws shift from favouring the claimant to the defendant. However, the extent to which the 2013 Act truly succeeds in the aim of achieving better balance, does greatly depend on interpretation and application of the provisions of the Act in courts. Parliament has been silent and somewhat vague on some of the sections, as far as applicability and definitions go. It remains to be seen whether these gaps will effectively be filled by judges to truly ensure a fair balance in the law.

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