Law of Defamation and Human Rights

The need to protect someone’s reputation is so important that under the English legal system there is a law of defamation. It is in place to protect an individuals’ or a group’s reputation from being lowered in the eyes of the right 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 particular article an individual’s 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 analyse whether the law of defamation and the European Convention on Human Rights are in line with each other. It will also be seen how in its primitive stages the English law failed to recognise the ECHR but with the passage of 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 his/her right to freedom of expression, we shall 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 held 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 eyes of rightful thinking members of society Sim v Stretch [7] and exposed the claimant to contempt or ridicule or caused the claimant to be shunned or avoided Berkoff v Burchill. [8] The next element is to gauge whether the statement refers 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. 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] The next requirement is whether the statement was published? By publish we mean communication being made to any 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 the law wants to protect and not the claimant’s pride Theaker v Richardson. [11] Lastly; what needs to be seen is whether there are any defences available.

There are a number of defences to defamation which provide a broad basis on which the defendant can justify publication. 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 intentions, whether malicious or not are 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 motivated by malice Horrocks v Lowe. [19]

Now we shall focus on the main theme of this essay which is to analyse 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 prescribed 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]

We can clearly see after reading the language of 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 through the HRA 1998. Section 12 of the HRA 1998 is on 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 expression. What remains to be seen is whether the current law strikes a proper balance and creates a state of equilibrium. 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 the aforementioned decision it can be asserted that it is only symbolic. However, the House of Lords in the case of Derbyshire County Council v Times Newspapers Ltd attempted to generalise freedom of expression 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 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 intellectual inadequacies 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 Canada, America and Australia have accepted the constitutional and tort law divisions in defamation. However, the English courts are still unwilling to distinguish between private and a political libel which certainly shows that the English law has not struck an appropriate balance between public rights and freedom of expression.

Academic commentators 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 ascertainable facts.

It can be gauged 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 an overarching public interest.

It can be concluded that the English law has had various infringements with regard to Article 10 of the ECHR. However, there is also clear evidence that the English law is gradually moving in the direction of better harmonisation 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 decision 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 compliance with the ECHR. Section 4 permits the courts to make a Declaration of Incompatibility, and 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 compliance with Article 10 of the ECHR but most certainly it is a positive step towards full compatibility of the two. Perhaps it is harder for states like the UK who have a dualist constitution to achieve compliance with the Convention rather than states like France who possess a monist constitutional form.

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