Defamation and freedom of speech

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English law has long recognized that a person's good reputation is something that merits protection, and that compensation should be paid by someone who impugnes that reputation. A person who is a victim of an attack on his reputation can be financially damaged, particularly if the imputation concerns his professional competence. However, in most cases it is not necessary that the victim show that he has suffered any financial loss: Libel (publication in permanent form) is actionable per se, as is Slander (publication in transient form) when it touches on a person's professional competence.

On the whole, tensions between the law of Defamation (libel and slander) and the right to freedom of speech do not arise where the imputation turns out to be true. 'Justification' (truth) is, of course, nearly always a complete defence to an action in defamantion. As Littledale J said in M'Pherson v Daniels (1829) 10 B & C 263, "the law will not permit a man to recover damages in respect of an injury to a character which he does not, or ought not, to possess". It is not necessary that the imputation be perfectly true in all particulars; it will suffice as a defence if is is substantially true (AlexanderVNorthEasternRailway1865).

Nor, for the most part, do difficulties arise where the imputation is seen to have been made out of malice, whether true or not. Only the most fervent defenders of freedom of expression will assert a person's right to defame out of spite.

The difficulty of finding the right balance between the protection of the individual's reputation, and the individual's right to freedom of speech, is shown most clearly in those cases where a person makes a statement in good faith, which later turns out to be incorrect. It is not in dispute that, in a democracy, the public interest is well served by a encouraging the free flow of information and opinion, even if the information sometimes turns out to be incorrect and the opinion ill-founded. Such a free flow of information can easily be compromised if the law that seeks to protected the reputation of the individual is too restrictive on what can be published. If, for example, I genuinely and honestly believe that Fred Bloggs is a villain, and I have evidence which I think proves it, and I honestly believe that people need to know, in what circumstances can I publish my views without attracting liability if I turn out later to be wrong? The answer, in English law at least, is that there are very few circumstances in which I can do so.

The first, and strongest, defence I might have to Mr Bloggs action in defamation is that my remarks were made in circumstances ofabsolute privilege. This defence is mostly reserved for the business of Parliament and proceedings in court, and is unlikely to avail a private individual. A private individual might be able to rely on qualified privilege, which arises where one is under a duty to publish. The scope of qualified privilege is a highly contentious matter, because it so closely concerns freedom of speech, and we will return to this later. For now, I will note in passing that qualified privilege will usually be a defence if what I say is a fair and accurate report of something that itself attracts absolute privilege (for example, I am reporting a Parliamentary debate, in which a defamatory remark was made about Mr Bloggs). In most other circumstances in which I might seek to rely on qualified privilege, the outcome is less certain.

If I cannot rely on privilege, I might be able to plead 'fair comment'. This defence is available if my imputation is expressed to be my opinion on some matter of public interest. This defence might be of some help if I claim, for example, that the Home Secretary was misguided in his approach to formulating criminal justice policy. 'Fair comment' is notoriously not available if the imputation is a testable matter of fact, whether in the public interest or not. It is also clear that 'public interest' is not the same as 'of interest to the public'. In london artists v littler (1969),Lord Denningsaid that for a matter to be 'in the public interest', it had to concern something which would affect people at large. The salacious activities of television presenters, for example, may be of interest to a large segment of the population, but it is probably not 'in the public interest' to publish them, because these activities do not have any direct effect on people's lives.

It should be clear that the defences available to a private individual, if he publishes in good faith a defamatory statement of fact, that later turns out not to be true, are very limited, almost non-existent. This has long been recognized as a problem, but the courts and the legislature have been very reluctant to change the law, for fear that the balance would swing to wildly the other way. In order to provide some protection for the individual, certain changes have been made both at common law and in statute which, while they do not change the way in which defamantion is defined or tested, do provide some measure of protection to the innocent author or publisher.

First, the courts have denied that public bodies have standing to sue in defamation at all. In derbyshire cc v times (1993), a local authority which had suffered criticism of its financial probity was prevented from bringing an action against the offending newspaper. There was no discussion of whether the newspaper's remarks were true, or justifiable; the decision was made on the basis that it should be open to the citizen to criticize the conduct of the Government without fear of a libel action. However, Lord Keith in his speech in the Derbyshire case (p550) made it quite clear that although the local authority as a body could not sue, it remained open to individual councillors to sue in their own right if they felt that they had been defamed in person. So, in fact, this decision if of limited value to a person who unwittingly defames a private individual, however prominent that individual and however public his duties. It is true that there are isolated cases where considerations of the public interest have allowed a defence in actions for defamation of a private individual. For example, in Braddock v Bevins (1948) 1 KB 580, the Court of Appeal commented that statements made in an election campaign by one candidate about another would attract qualified privilege. These isolated decisions, however, establish no obvious general principle. Moreover, when outcomes such as that in Braddock do arise, they are often put down fairly quickly. As far as Braddock itself is concerned, four years after it was decided s.10 of the Defamation Act 1952 specifically denied privileged status to remarks made by election candidates about their opponents.

The second substantial change to the law, so far as innocent publication of a defamatory statement of fact is concerned, is s.2 of the Defamation Act. This gives an opportunity for a person who is alleged to have made a defamation, to publish an apology and offer to pay compensation. It will then fall to the claimant to show that the publication was malicious, that is, made in full knowledge that it was defamatory of the claimant. This helps the innocent defendant by discouraging the claimant from airing his greivances in open court; because the claimant would have to pay the defendant's costs if he lost the action, there is a very strong incentive for the victim of an innocent defamation to accept the apology.

Neither of these two provisions changes whether a person is guilty of a defamation or not, nor does either change the meaning of defamation or create a new defence. The provisions merely discourage the victim of an innocent defamation from having his day in court. It remains overwhelmingly the case that English law favours the protection of reputation over of freedom of speech.

Unlike the law of defamation, there are no specific provisions in English law safeguarding freedom of speech. Such rights to freedom of speech as their are have been recognized, at least until recently, as 'residual' rights. That is, English law accepts that the individual has a right to do anything that is not specifically forbidden. It can be argued that Article 10 of the European Convention on Human Rights, now given statutory recognition by the Human Rights Act (1998), creates increased protection for freedom of expression. However, there are two problems with such an argument. First, Article 10(2) specificially recognizes that the right to freedom of expression can legitimately be curtailed where it is necessary to protect an individual's reputation. Second, the European Court of Human Rights has not, on the whole, interpreted the Convention so as to protect the individual from the consequences of making false statements of fact, even with the best of motives. Lingens v Austria (1986) 8 EHRR 407 is a case in point. A journalist accused the Austrian Chancellor of protecting former Nazi SS members, and the ECHR upheld his right to do so after he had been prosecuted under Austrian law for criminal libel. But Lingens does not establish that political figures are acceptable targets for defamation -- indeed, the facts on which Mr Lingens relied in his article were undisputed. The ECHR was upholding his right not to have to prove the truth of the opinions he formed from those facts. In the UK, Mr Lingens might well have had a defence under the 'fair comment' provisions, and recourse to the Convention might have been unnecessary. Similarly, in the case of Thorgeirson v Iceland (1992) 14 EHRR 843, the fact that Mr Thorgeirson was held to have the right to accuse the police of brutality is of no great relevance to UK law. Thorgeirson's article was directed at the police as a public body, not at any individual police officer. Consequently, he may have escaped liability on the basis of Derbyshire v Times. The reality is that although the ECHR has upheld the right of an individual to express value judgements and opinions, it appears never to have sanctioned the making of incorrect statements of fact, however innocent and well-intentioned. In Lingens the court drew a sharp distinction between testable matters of fact and value judgements. The fact is that Convention jurisprudence offers virtually no assistance to a person who makes a defamatory, incorrect statement of fact in good faith. In such circumstances, the defendant may have no choice but to rely on the defence of qualified privilege which, as mentioned above, operates within rather narrow limits, although attempts are regularly made to widen them.

In the case ofreynolds v times (1999), the HouseOfLords was invited to widen the scope of qualified privilege to encompass all acts of political journalism carried out in good faith and in the public interest. It unanimously declined to do so, for various reasons. A particularly prominent reason was that expressions of fact, unlike expressions of opinion, cannot easily be judged by the reader as to their accuracy. If a newspaper claims that the Home Secretary is doing a bad job, the reader can judge this opinion against what he or she knows of the Home Secretary and the reports of other commentators. However, if a newspaper reports, for example, that the Home Secretary misled Parliament on some particular matter, this is not something of which a reader can easily judge the veracity. If such reporting attracted privilege, the victim would have to prove malice -- no easy task in general, and particularly difficult against newspapers, which have become very good at protecting the sources of their information.

The second prominent reason for not allowing qualified privilege for political reporting was, sadly, that newspapers could not be trusted to put their respect for the truth ahead of their commericial motivation to sell copies.

At the same time, none of the judges were prepared to hold that political reporting could never attract privilege; each case would have to be decided on its own facts. On the facts of Reynolds the decision by a bare majority was that it should not attract privilege.

In short, English law is very reluctant to extend the defence of qualified privilege to new situations. The resistance with which suggestions to that effect are greeted by the courts might lead one to believe that to do so would signal the end of civilisation. That it would not have any such effect can readily be determined by examining the corresponding legal systems of other common-law jurisdictions.

The USA has probably gone furthest in promoting the freedom of speech over protection of the individual reputation. The landmark case of New York Times v Sullivan (1964) 376 US 254 interpreted the US Constitution to the effect that a 'public official' cannot maintain an action in defamation with respect to his official conduct unless he can prove malice. This is a very, very long way from the position in English law. Commenting on Sullivan in the 1991 Report on Practice and Procedure in Defamation, the Supreme Court Procedure Committee said:

Standards of care and accuracy in the press are, in our view, not such as to give any confidence that a 'Sullivan ' defence would be treated responsibly. It would mean, in effect, that newspapers could publish more or less what they liked, provided they were honest...

It was also argued in Reynolds that the effect of Sullivan_ was to create a separate class of citizen -- 'public officials' -- whose rights and obligations were different from those of other people. However, the Sullivan principle has survived for 40 years in the USA, and it is doubtful that their newspapers are overwhelmingly more meticulous than ours.

In Rajagopal v State of Tamil Nadu (1994) 6 SCC 632, the Supreme Court of India held took essentially the same line as the USA, holding that a public official can sustain an action in defamation only if he can show that the publisher acted with 'reckless disregard for the truth'.

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 The High Court of Australia held that qualified privilege exists for the dissemination of 'information, opinions and arguments' concerning government and political matters of public interest, subject to the publisher proving 'reasonableness of conduct'. In Reynolds the House of lords suggested that, in general, defendants that failed to establish qualified privilege under English law would probably fail to eastablish 'reasonable conduct' under Australian law, so in practice the Australian position was not that different from English law. However, it is different in principle, in that it does not require the defendant to show that the reader had a right or duty to receive the information he published.

South Africa and New Zealand have taken a similar line to that of Australia, although Canada has largely followed the English approach.

In summary, there is no compelling reason to believe that great injustice would be done if the English legal system moved in the direction of other common-law jurisdictions, and protected freedom of expression with greater vigour, and indivdiuals' reputations with less. At the same time, the UK is surely right to appreciate -- as some other jurisdictions have not -- that expressing a defamatory opinion of somebody is a very different matter from making a defamatory factual allegation about that person. This distinction is in line with Art. 10 of the European Convention on Human Rights, and has been upheld by the European Court of Human Rights. In the end, a line has to be drawn somewhere; and although it can be argued that English law has drawn it in the wrong place, the arguments are not particularly compelling.