The History of Defamation

The recent history of defamation is marked by continuing conflict between the need to protect the character and privacy of individuals, on the one hand, and the right to freedom of expression, on the other. The intensity of this conflict has naturally been heightened with the enactment of the Human Rights Act 1998, bringing with it formal rights to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). As can be observed by the decision of the House of Lords in Derbyshire County Council v Times Newspapers [1] in 1993 where Lord Keith said “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech”. Thus the need to protect someone’s reputation has been given great importance under the English legal system. The law of defamation is in place to protect our 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 compliance with Article 10 of the ECHR and if it is; then to what extent?

The objective 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 adequately recognise the ECHR but with the passage of time and with the advent of the Human Rights Act 1998 (HRA) things started to move in the right direction. 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 the right balance has been struck between protecting the reputation of an individual and his/her right to freedom of expression, we shall briefly see what law of defamation entails. We understand that the English law is trying to protect the reputation of an individual, which if lowered in the eyes of right thinking members of society, will give rise to a claim in the tort of defamation. However it is also imperative to comprehend that there are two forms of defamation. It can be a libel, meaning that the statement was in a permanent form; such as a waxwork. It should be noted that libel is actionable per se and is a crime as well as a tort, and in the case of Jameel (Yusuf) v Dow Jones [2] it was held that the presumption of damage in a libel claim is not an infringement of Article 10 ECHR.

In the case of Safeway Stores plc v Tate, [3] it was held that it should be borne in mind 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 expression. The second form of defamation is a slander, which means that the statement was in an oral or temporary form, Hellwig v Mitchell, [4] and here the claimant has to show special damage unless his claim falls under one of three exceptions that are not significant for the purposes of this discussion.

So ultimately a claim for defamation 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 [5] and exposed the claimant to contempt or ridicule or caused the claimant to be shunned or avoided Berkoff v Burchill. [6] The next step 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. The next requirement is whether the statement was published or not and mind you by publish we mean communication being made to any person except the claimant. The rationale embodied in this rule is simple, 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 aims to protect and not his/her pride Theaker v Richardson. [7]

Now we shall focus on the salient issues that form the core of this discussion, we need 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. Our focus is on the wording of the law as that is what the courts do at least more often than not; let’s look at Article 10 of the ECHR.

“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.” [8]

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.

At the beginning of the 21st century the HRA 1998 came into force in the United Kingdom. The main objective of the HRA 1998 was to enhance the rights and freedoms endowed under the ECHR. Law Committees made recommendations for example the Faulks Committee opined that the aim of the law of defamation was to strike 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 and if it does; to what extent? A paradigm example of this balancing exercise the courts indulge in can be seen in the case of Tolstoy v United Kingdom [9] . Here the plaintiff was able to satisfy the European Court of Human Rights that 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. [10] 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. The House of Lords in the case of Derbyshire County Council v Times Newspapers Ltd [11] attempted to generalise freedom of expression under common law principles in order to justify their decision. 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 the ECHR. Curiously it seems astounding to read Lord Keith’s view that public officials should be treated to the same standard as private citizens; this can not only be said to be inaccurate or rather misleading but also incompatible with Article 10. It should also be noted that other jurisdictions such as Canada and Australia have accepted the constitutional and tort law divisions in defamation. However, the English courts persist being unwilling to draw a distinction between private and political defamation which certainly shows vulnerabilities that exist in English law as it has not been able to maintain a satisfactory balance between public rights and freedom of expression.

Many academic commentators in this area espouse the view that the freedom of expression will place a strong check on the enforcement of an individual’s reputation being lowered due to the great importance given to it by the judiciary. For example in Lingens v Austria, [12] in 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. 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 surely means that the right to freedom of expression should be seen as encompassing information and ideas, comments and opinions, and also objectively ascertainable facts. Perhaps this suggests that our legal system ought to regard primacy to freedom of expression more than the contemporary case law in this area shows.

It can be gauged from cases such as Goodwin v UK, [13] 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 media has been forced to provide full disclosure in relation to the sources they employ to acquire information. 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 Financial Times Ltd v United Kingdom [14] . It should also be noted that apart from the aforementioned decisions of rather limited scope, the English courts have persistently held defamation law to be broadly compatible with Article 10 of the ECHR. Furthermore, in Campbell v MGN, [15] the House of Lords held that there was no presumption that the Article 10 right to freedom of expression should trump any competing interests, such as the Article 8 right to respect for privacy.

It can be asserted 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, [16] in which the courts accepted the European Court of Human Rights decision in De Haes & Gijsels v Belgium, [17] which stated that specific information which was of great political importance could be published by the media 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 complete harmonisation. Perhaps it is harder for states like the UK who have a dualist constitutional form to achieve compliance with the Convention rather than states like France who possess a monist constitutional form. I assert this in purview of the case law that has been the subject of pungent criticism by the Court of Justice of the European Union in relation to the United Kingdom.

The European Union as a new legal order has much more to contribute in this area than one might contemplate. We can certainly hope for a new EU Directive or Regulation in this important area with the passage of time in order to address the aforementioned inadequacies & issues of significant importance within the European Union as the notion of EU Citizenship develops. It should be noted that since the Treaty of Lisbon has come into force in the European Union; it has also made the Charter of Fundamental Rights binding on all EU institutions and Member States. For the purposes of our discussion this adds a new dimension as the wording of Article 11 is as follows: paragraph 1 says – 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. Paragraph 2 – The freedom and pluralism of the media shall be respected. This clearly shows that primacy is being given to freedom of expression under the Charter and one can appreciate the changes brought about through the Treaty of Lisbon. This will certainly go some way in allowing courts of the contracting states like UK to achieve and sustain an adequate balance between protecting reputations and freedom of expression.

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