European Convention and Law of Defamation

Reputation is so important that the English law has made a law of defamation to protect the individual from having his/her reputation lowered in the eyes of rightful thinking members of society. What needs to be taken into consideration is whether this law is in contradiction with Article 10 of the European Convention on Human Rights (ECHR). Under this article a citizens right to freedom of expression is protected, as well as the right to “hold opinions and to receive and impart information and ideas without interference by public authority.” The purpose of this essay is to see whether the law of defamation and the European Convention on Human Rights are in line with each other. This will be seen mainly with regards to truth, value judgments, opinions, and with regard to the balancing of freedom of expression against the protection of reputation of public figures. It will also be seen how in the early stages the English law failed to recognize the ECHR but with time, slowly but surely it came to recognize it, as can be seen by the integration of the Human Rights Act 1998 (HRA). This step of integration of the HRA 1998 can be seen as an optimistic step towards the eventual cohabitation of the two. However, before we get into a discussion of the effect of the ECHR and HRA 1998 and whether or not it has achieved a proper balance between protecting the reputation of an individual and the right to freedom of speech, we will see what the law of defamation actually is.

The English law is trying to protect the reputation of an individual, which if lowered in the “rightful thinking members of society,” will give rise to a claim in the tort of defamation. There are two forms of defamation. It can be a libel, basically meaning that the statement was in a permanent form, such as in writing. It should be noted that libel is actionable per se and is a crime as well as a tort. In the case of Safeway Stores plc v Tate, [1] it was said that it should be remembered that the easier it is for a claimant to succeed in a defamation action, the more likely it is that significant inroads will be made into the protection of freedom of speech. It can also be a slander, which basically means that the statement was in a transitory form, Alexander v Arts Council of Wales, [2] and here the claimant has to show special damage. Special damage is basically damage that is quantifiable in monetary terms. It should be noted that slander can also be actionable per se but only in exceptional cases such as Hellwig v Mitchell, [3] Kerr v Kennedy, [4] Bloodworth v Gray, [5] and Jones v Jones. [6]

In order to bring a claim for defamation a claimant must prove that the statement was defamatory to an extent that it lowered the claimant in the rightful thinking members of society (Sim v Stretch) [7] and exposed the claimant to contempt or ridicule or cause the claimant to be shunned or avoided (Berkoff v Burchill). [8] The next thing to see is did the statement refer to the claimant? For this the claimants name does not have to be specifically mentioned, even a reference can be made through a fictional character. It can be seen from the case of Hulton v Jones [9] that the statement made by the defendant must be shown to have referred to the claimant. This requirement is easily satisfied where the claimant is referred to by name by the defendant. The House of Lords held that if a reasonable person understood the language of the article as being defamatory of the claimant, it was irrelevant that the defendant did not intend to defame the claimant. So in other words the intention of the defamer is irrelevant (Newstead v London Express Newspapers Ltd). [10] Now what needs to be seen is was the statement published. By publish we mean basically communication to just one person except the claimant. The defendant must publish the defamatory statement about the claimant because it is the claimant’s reputation in the eyes of others which is protected and not the claimant’s pride (Theaker v Richardson). [11] Lastly what needs to be seen is, are any defences available. There are a number of defences to defamation which provide a broad basis on which the defendant can justify publication on the basis of freedom of expression, truth or consent.

The first defence we shall discuss is justification or truth. Defamatory statements are presumed to be fallacious unless the defendant can prove otherwise (Alexander v North Eastern Railway Co.). [12] It should be noted that the defendants intention, whether wicked or not is irrelevant.

Another available defence is that of Fair comment. The purpose of this defence is to protect defendants who criticise claimants so long as they act fairly, honestly and base their comments on true facts. This clearly reinforces freedom of expression but within a limited sphere. In order to give rise to this defence there are three requirements that need to be fulfilled. The first is that the comment must be in the public interest (London Artists v Littler). [13] The second requirement is that the comment must be on true facts (Kemsley v Foot). [14] Lastly, the comment must be fair and honest (Reynolds v Times Newspapers). [15]

The last defence of concern to us is that of privilege. Privilege can be absolute or qualified. Absolute privilege is a stronger form of privilege because it provides the defendant with an absolute defence in situations where freedom of speech is of the essence, such as is the case for members of parliament (Hamilton v Al Fayed). [16] Section 13 of the Defamation Act 1996 also provides absolute privilege for reports and papers ordered to be published by either house of Parliament, judicial proceedings, fair and accurate contemporaneous reports of United Kingdom court proceedings [17] and also for communication between the higher officials of the state (Chatterton v Secretary of State for India). [18] Qualified privilege on the other hand is a weaker form of privilege because it is only available as a defence where it is felt that the freedom of expression should be protected but not where the writer is incited by malice (Horrocks v Lowe). [19]

We will now shift our focus to the main theme of this essay which is to see the impact and effect of the enactment of the European Convention on Human Rights and the Human Rights Act 1998 on the law of defamation. Firstly, we will look at Article 10 of the ECHR. Article 10 says that,

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribe d by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” [20]

It can be seen from Article 10(2) of the ECHR that the right to freedom of expression is present and can be challenged. This article has been amalgamated into English law via the HRA 1998. Section 12 of the HRA 1998 is for freedom of expression and is as follows,

“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied-

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-

(a) the extent to which-

(i) the material has, or is about to, become available to public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

(5) In this section-

“court” includes a tribunal; and

“relief” includes any remedy or order (other than in criminal proceedings).” [21]

In 2000 the HRA 1998 came into force in the United Kingdom. The main objective of the HRA 1998 was to enhance the rights and freedoms given under the ECHR. It was suggested by the Faulks committee that the aim of the law of defamation was to preserve a balance between the individual’s right to safeguard his reputation and the general right of freedom of speech. What needs to been seen is does the current law achieve a proper balance. A good example of the problem can be seen in the case of Tolstoy Miloslavsky v United Kingdom. The plaintiff in this case was able to satisfy the European court of Human Rights that libel damages of £1.5 million awarded against him by the English jury was a violation of his right to freedom of expression under Article 10 of the ECHR. [22] It should be noted that even though the UK is a party to the Convention, it has not integrated it as a part of its constitutional law. In light of this decision it can be said that it is only emblematic. However, the House of Lords in the case of Derbyshire County Council v Times Newspapers Ltd tried to generalize freedom of speech under common law principles in order to justify their decision. [23] What needs to be questioned is whether the absence of a constitutional footing will provide sufficient protection for the freedom of expression. It must be seen that even though the courts were right in not allowing the local authority the right to sue in defamation, there are several inadequate essentials in the judgment which do not resolve the problem of English law being incompatible with ECHR. Lord Keith’s view that public officials should be treated to the same standard as private citizens cannot only be said to be incorrect but also irreconcilable with Article 10. It should also be noted that other jurisdictions such as the United States and Australia have accepted the constitutional and tort law divisions in defamation. However, the English courts unwillingness to distinguish between private and political libels shows that the English law has not achieved an appropriate balance between public rights and freedom of expression.

Certain authors are of the view that the freedom of expression will put a strong check on the enforcement of an individual’s reputation being lowered due to the stress placed upon it by courts. It can be seen in the case of Lingens v Austria, [24] in which the court stated that, “freedom of expression, as secured by paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. Subject to paragraph 2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broad mindedness without which there is no ‘democratic society’.” This basically means that the right to freedom of expression should be seen as encompassing information and ideas, comments and opinions, and also objectively provable facts.

It can be seen from cases such as Goodwin v UK, [25] in which public rights have been used as an excuse to punish those who attempt to exercise freedom of expression. This can be seen mostly in cases where the press has been compelled to disclose its sources. The European Court of Human Rights held this practice to be in violation of the Convention and also held that an order to reveal sources is not in line with Article 10 unless there is a superseding public interest.

To conclude, it can be said that the English law has had various infringements with regard to Article 10 of ECHR. However, there is also clear evidence that the English law is gradually moving in the direction of better harmonization between the two. It can be seen from the decision in Reynolds v Times Newspaper Ltd, [26] in which the courts accepted the European Court of Human Rights decisions in De Haes & Gijsels v Belgium, [27] which stated that specific information which was of great political importance could be published by the press and be received by the public. A major part of the Convention has been amalgamated into the English domestic law through the Human Rights Act 1998. Section 2 of the HRA 1998 compels the courts to take into account and illuminate issues in line with the ECHR. Section 4 permits the courts to make a Declaration of Incompatibility, last but not the least section 12 sheds light on freedom of expression with explicit provisions against unnecessary restrains on the media’s right to publication. Therefore, it can be concluded that the Defamation Act 1996 has not rendered the English law fully in line with Article 10 of the ECHR but most certainly it is a positive step towards full compatibility of the two.