Freedom of Speech in Actions of Defamation

Common law has provided protection to reputation through the law of defamation. It has been recognized for a long time that protection of reputation can conflict with freedom of expression. This is the main reason why the relationship ‘between the protected interest in reputation and the competing interest in freedom of expression’ [1] has begun to change. Freedom of expression is no longer ‘to be regarded as a residual personal right, but is interpreted as a positive right reinforced by the public interest’ [2] . One of the most important case of Reynolds v Times Newspapers [3] explains freedom of expression in terms of the public interest ‘in receiving and imparting information in the context of a democratic society’ [4] .

The common law distinguishes two torts under the defamation law: 1) libel that takes permanent form, for example, an article or a photograph published in a daily newspaper or even a waxwork [5] ; 2) slander that is temporary form, for example, spoken words or sounds or gestures made to a crowd – it is generally suggested that ‘sign language would be treated as slander’ [6] . Slander is a defamatory statement in a transient form. The permanency of libel makes it more serious because more people will usually see it and it will not be forgotten. Damage is presumed that is ‘compatible with Article 10 of the European Convention on Human Rights Act’ [7] and therefore libel is actionable per se (without proof of damage). Slander requires proof of special damage that can be proved by evidence of financial loss or any other material that could help estimate the loss in financial terms.

Some statements are recognized to be so important that they ought to be made with full confidence that they are beyond the reach of an action in defamation. These statements are ‘protected regardless of truth or falsity, despite their inclusion of factual assertions’ [8] . These statements are protected by absolute or qualified privilege. There are certain occasions on which the law regards freedom of speech as essential, and provides a defence of absolute privilege which can never be defeated, no matter how false or malicious the statements may be. Absolute privilege examples are: statements in Parliament, statements made in the course of judicial proceedings and fair and accurate reports of judicial proceedings [9] . Statements that attract qualified privilege can only be the subject of proceedings in defamation if it can be shown that ‘they were made with express malice’ [10] . Qualified privilege is defined by a statute – ‘section 15 of the Defamation Act 1996 specifies that the reports and other statements mentioned in Schedule 1 to the Act are protected by qualified privilege’ [11] .

The leading statement on qualified privilege at common law was made by Lord Atkinson in Adam v Ward [12] where he stated that ‘a privileged occasion is….an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.’ [13] In this short, but widely accepted statement of principle Lord Atkinson ‘emphasizes both sides of a relationship……and goes so far as to underline the reciprocity is essential’ [14] However, this simplicity was altered some time later by the one of the leading cases on qualified privilege Reynolds v Times Newspaper [15] . Reynolds established that common law qualified privilege could apply to publications in the media and ‘that the traditional duty and interest requirements could be satisfied by media publications because the public had a right to know in all the circumstances’ [16] . The House of Lords did not create a new category under qualified privilege because ‘it would create insufficient protection to individual reputations’ [17] . With a general approach, all such media publications would be protected unless claimants proved malice. Under the European Convention on Human Rights Act ‘journalists’ confidential sources are accorded very strong protection in England, which makes it extremely difficult to prove malice. Also the House of Lords concluded that common law qualified privilege should focus on the publication’s public interest qualities’ [18] . In the leading judgment, Lord Nicholls listed ten factors relevant to whether publication occurred on an occasion of qualified privilege: ‘(1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed…. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid…. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff…. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiffs’ side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing.’ [19] Although qualified privilege failed on the facts in Reynolds mainly because the publisher had failed to tell Reynolds’ side of the story when making serious allegations of misconduct by a political leader, Lord Nicholls suggest that the defence should be useful to the media, he said that: ‘above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.’ [20]

Post-Reynolds the courts have subsequently used the ten factors as a checklist and focused on the idea of responsible journalism. In the Loutchansky v times Newspapers Ltd [21] Court of Appeal stressed that the Reynolds test was the one of responsible journalism. The court also stressed that ‘if the newspaper could satisfy the Reynolds criteria and demonstrate that it had acted responsibly, the defence of qualified privilege would apply.’ [22] The Court of Appeal also noted three matters of ‘individual and public concern that would be predominant in the mind of courts in determining the public interest: i) if qualified privilege was allowed, then, to all intents and purposes, the publisher would have a complete defence and the claimant would be denied a remedy; ii) setting the standard of journalistic responsibility too low would inevitably encourage too great a readiness to publish defamatory matter; and iii) setting the standard too high would deter newspapers from their proper function of keeping the public informed’. [23] In Bonnick v Morris [24] Lord Nicholls stated that ‘a flexible approach should be adopted where the words used were ambiguous and could have conveyed either a defamatory and non-defamatory meaning to the ordinary reasonable reader.’ [25] In the recent case of Jameel v Wall Street Journal Europe SPRL (No.3) [26] the House of Lords found that ‘the lower courts were interpreting the Reynolds defence in an unduly restrictive manner and that it was necessary to restate its principles’. [27] The Court of Appeal in this case had rejected the defence of qualified privilege duo to the failure of the newspaper to delay publication to allow the claimant to comment. This rejection was one of the factors why the House of Lords stressed that ‘the ten (Reynolds) factors are not hurdles, but merely pointers towards the correct approach to adopt.’ [28] The House of Lords also identified two questions to be addressed in cases of media qualified privilege: ‘1) that the subject matter of the article, taken in context and as a whole, was in the public interest; and 2) that the publication met the objective standard of responsible journalism’. [29] The House of Lords stressed the need to apply the Reynolds test more generously and with greater flexibility. Lord Hoffmann stated that ‘the fact that judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence’. [30] This statement is clear indication that it should be easier for the media to establish this defence in the future.

Before Reynolds, English defamation law tracked the common law and was very protective of reputation. In order to publish, ‘the media needed to be able to prove the truth of the matter asserted or to bring the article within the scope of a recognized privilege. In many instances, the media opted not to publish for fear of liability’ [31] . Post-Reynolds, most media organizations are able to publish articles that they would not previously have been able to publish. However, despite its positive effect, the English media have concerns regarding the Reynolds version of qualified privilege. Among the major concerns, ‘the media remain uncertain about how Reynolds’ multi-factor analysis will be applied. Because there are so many factors, and because there have been so few judicial decisions interpreting and applying Reynolds, the media do not know how to weigh and evaluate the factors. Must the media always seek a response from the subject of an article? If not, when is it permissible not to seek a reply? If the media satisfy some of the Reynolds factors but not others, will it be enough?’ [32] Hopefully this concern will be resolved over time as the courts render additional decisions.

Reynolds appears to be a positive and hopeful development in English defamation law. Before Reynolds, English defamation law ‘was particularly draconian and tended to inhibit the publication of important information. [33] In the post-Reynolds era, the English media are able to report more freely. While Reynolds ‘may not have found the perfect balance between speech and reputation (assuming that such a perfect balance exists), it constitutes a positive and worthwhile addition to English jurisprudence. [34]

2(2) Only the very rich can afford to have a good reputation

Reputation is protected by the tort of defamation, which ‘creates liability for untrue statements which diminish the claimant’s reputation in the eyes of right-thinking members of society.’ [35]

In Reynolds v Times Newspapers [2001] 2 AC 127, much emphasis was placed on protection of reputation as a matter of public interest which now allows the interest in reputation to compete on a wider ground with freedom of expression. Lord Nicholls stated: ‘reputation is an integral and important part of the dignity of the individual. It also forms basis of many decisions in a democratic society which are fundamental to its well-being. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law [36] and are necessary in a democratic society for the protection of the reputations of others.’ [37]

Mechanisms other than the Civil Procedure Rules 1999, Alternative Dispute Resolution, and Community Legal Service, to promote the private funding of legal proceedings have also been advanced in recent years [38] .

Conditional fee agreements ‘(CFAs) are defined in s. 58 of the Courts and Legal Services Act 1990 as amended by s. 27(1) of the Access to Justice Act 1999. The importance of CFAs has significantly increased, since it is now a principle that public funding of litigation through Community Legal Service should not be provided in cases where alternative funding (including CFAs) is available.’ [39] Conditional fee arrangements allow solicitors to take a case on the basis that, if the case is lost, they will not charge their clients for all or any of the work undertaken, but if the case is successful, the solicitor can charge a success fee which should be no more than 100% of the normal fee on top of the normal fees, to compensate for the risk the solicitor has run of not being paid all or some of her fees.

Historically, ‘it was said that libel actions were the preserve of the rich or the mad. There was no legal aid available for libel and few could afford to take on a media publisher. [40] The introduction of conditional fee agreements (CFAs) in libel cases meant that people of modest means could contemplate taking a libel action.

Ruling in Campbell v MGN Ltd [2005] UKHL 61, the House of Lords said that ‘irrespective of a client’s financial circumstances and despite concerns about freedom of expression, they should be able to pursue a case under a CFA, and that solicitors should still be able to claim up to 100% success fees even if their clients could have funded the case through other methods.’ [41] The appeal over costs arose after supermodel Naomi Campbell’s solicitors acted under a CFA and charged a 100% success fee, amounting to almost £300,000. Ms Campbell received just £3,500 in damages. The defendants argued that ‘rich clients were taking advantage of CFA legislation designed to provide access to justice for people who could not otherwise afford it, and that success fees should be disallowed in those cases.’ [42]

However, there is another side that if a claimant loses a case under a CFA he may not pay his own fees, but he is liable for his opponent’s costs, which will be substantial at the end of a contested action. Another risk is that, unless the claimant wins, his solicitors do not get paid. A fully defended libel action can involve a team of lawyers working for up to three years. If, at the end of that, the client loses, the financial impact on the firm will be significant.

Britain’s cost rules have a significant effect on the media. At the very least, the rules ‘encourage the media to settle and to make amends when faced with the threat of defamation litigation. As a BBC official states, Britain’s cost rules are a “great problem” that can have a huge effect on pre-publication decisions. An editor at The Guardian admits that its coverage could be affected by the threat of litigation from a fabulously rich person who could afford a blistering array of legal attacks. As a result, the newspaper might not publish everything that it could publish about such an individual. The Guardian’s editors clearly indicated that costs are a significant factor when it decides to publish or withhold a story from publication. [43] Because of threats, The Guardian does not publish all that it can in some cases.