the legal battle: Libel law

The wrong balance

Helen Searls

Libel Law: time for change
The papers

>1. The wrong balance
Helen Searls

2. The burden of proof
Susannah Downing

3. Negligent Defamation
Jon Holbrook

4. Abolishing Libel Law?
Daniel Lloyd

It is often argued that defamation law balances the right to free speech against the rights of individuals to protect their reputation. Across the globe legislators and judges have attempted to strike a fair balance between these apparently competing interests. It is my view that the right balance is rarely found. This is particularly striking in Britain where the law is weighted heavily in favour of those who seek to defend their reputation and against the right to free speech.

When Judge Cory of the Canadian Supreme Court presided in the 1995 libel case of Manning & the Church of Scientology v Hill, the problem at the heart of libel law the world over was sharply posed. How could the right of freedom of expression be weighed against the rights of the defamed? In examining these competing interests he stated that:

"It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions."

On the other hand he went on to say:

"to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. ...The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty."

He concluded that:

"the protection of a person's reputation is indeed worthy of protection in our democratic society and must be carefully balanced against the equally important right of freedom of expression."

Judge Cory's conclusions are endorsed by many. The right to defend one's reputation and the right to free speech are understood as competing rights in a democratic society. But exactly how are these rights in competition? And should they be judged as 'equally important'? For individuals is the right to protect one's reputation as important as the right to free speech? And are both rights equally important for the workings of a democratic society? These questions, which lie at the heart of libel law, need to be answered before we can explore the merits or failings of the law as it currently stands.

Equal Rights?

Individuals have long sought means to defend their reputation. Shakespeare made a great play of the importance of reputation in Othello. He tells us that:

"who steals my purse steals trash
'tis something, nothing; ...
But he that filches from me my good name
Robs me of that which not enriches him,
and makes me poor indeed"

In the distant past matters of reputation and honour were resolved violently as in the aristocratic ritual of duelling. Since Parliament introduced a defamation act, individuals have tended to used the courts to resolve these matters.

The law recognises that defamation is a serious matter for those who are defamed. As far as the law is concerned people live by their reputations and it acknowledges that a damaged reputation can have a profound impact on an individual. The law recognises that such damage can cause an individual to suffer hatred and ridicule. The defamed may also be shunned or avoided by others. It can lead to the loss of status and friendships.

While no doubt all of this is true, the legal dis-cussion of reputation is, at times, a little archaic. Reputation is frequently treated as though it were an individual's private property - something that he himself has struggled to create and nurture. In reality what we describe as an individual's reputation is more complicated than this. An individual's reputation is created in a number of different way. The media itself makes many reputations. What is more, reputation is not always based on merit. It seems ironic that a talentless soap star, whose celebrity status is entirely created by the media, can sue its 'maker' when their celebrity status is damaged by the media. The legal basis of reputation is therefore not entirely unproblematic. (For an interesting discussion of this problem see for example 'Defamation reconsidered', Tom Gibbons, Oxford Journal of Legal Studies, Vol 16. 1996.)

But whatever the failing of the legal definition of reputation it is undoubtedly the case that individuals can suffer greatly when the media lies about them. This problem is particularly striking at present when the media seems to be adopting a moral tone to much of its reporting. For example an individual like former Tory MP Neil Hamilton was turned into a pariah by the media in 1996-7. Such was the moral reaction to Hamilton's alleged misdoings, he was persecuted by the British press. Whatever the rights and wrongs of this particular case, everyone agrees that the allegations destroyed much of his life.

Certainly individuals can suffer at the hands of the press. But does defamation create a broader problem for society? Some argue that it does. They argue that defamation law is in the broad public interest. If defamers go unpunished, they argue, public debate and discussion suffers. Lies and half truths can then freely 'pollute' public debate. This make it hard for those who wish to defend their reputations and is bad for society as a whole.

Judge Cory indentified both problems when he resisted liberalising the Canadian libel laws in line with changes that had occured in the USA as a result of New York Times v Sullivan. He stated that:

"The New York Times rule thus countenances two evils; first the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avioded with a reasonable effort to investigate the facts."

The pollution argument is frequently used by those who defend restrictive libel laws but in my view it is deeply flawed. The defamation laws are not effective in preventing the so-called pollution of public debate. The peculiarity of the law means that they fail in three fundamental ways. This is not simply due to failings in the law. Rather, the whole ethos behind the pollution argument is fundamentally wrong.

Firstly, only the privileged and wealthy have access to the libel courts. There is no legal aid provision in libel cases and such is the expense of libel actions, only a tiny minority of individuals have access to the libel courts as either defendants or plaintiffs. The result is that lies about the not-so-rich go unchallenged and defendants of more modest means, who speak the truth, rarely have an opportunity to put their case in court.

Secondly, it should not be assumed that the court, in operating the law, always ensure that the truth comes out. The entertainer Liberace for example won damages in court when the Daily Mirror dared to imply that he was a homosexual. It is now known that this allegation was true but the libel courts found in the plaintiff's favour - so allowing the truth to be silenced.

Thirdly, where is the evidence that those countries with more liberal libel laws suffer a more polluted public debate? The United States of America have relatively relaxed libel laws. It may be that some high profile individuals feel badly treated by the likes of the National Enquirer but it cannot be fairly said that public debate is more polluted than in this country. The American press has a tradition of investigative journalism second to none. It would have been well nigh impossible for journalists to expose public scandals such as Watergate and the Iran-Contra affair if they faced the restrictions imposed by British defamation law. The case that weak libel laws make for poor public debate is hardly supported by the example of the country where those laws are weakest.

Forthly, and most importantly, the claim that weak libel laws will hinder those who search for truth is wrong because it is based on a profound misconception of how society arrives at the decision of what is and is not true. Normally we arrive at such a decision through a thorough process of debate and discussion. In so doing no viewpoint can be ruled out of order - even it is wrong - since argument and debate serve to clarify the truth. For instance, in the natural sciences the laws of nature are discovered through a rigorous process of testing and counter testing different hypotheses. The same process should be the norm in other spheres.

This process can be seen in the realm of politics. In the Watergate scandal, for example, the truth emerged only slowly through a long process of public inquiry. Numerous allegations were made. Arguments and counter-arguments were publicly aired and scrutinised. It is difficult to see how a libel action would have assisted this process. Once criticism and allegations become the subject of a libel writ full discussion is severely curtailed. The media fear discussing matters that may land them in the centre of an expensive law suit. Added to this the plaintiff can, with justification, remain silent in the wake of public demands for explanations. The normal process of public scrutiny and investigation is stunted.

It could be argued that every time a person tells a lie about the state of the economy this pollutes public debate. Should the law prevent and punish the publication of such lies on the grounds that public debate is polluted? Of course not. As the eminent 19th-century writer and civil libertarian, John Stuart Mill, put it:

"We can never be sure that the opion that we are endeavouring to stifle is a false opinion; and if we were sure stifling it would be an evil still. ...Complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action."

So while we can agree that individuals can suffer when their reputation is damaged, it is difficult to claim that defamation damages society as a whole. The same however can not be said about restraints upon free speech.

Why Free Speech Matters

Some journalists defend free speech as though it is merely about their own right to do their jobs unhindered. The right of defending one's reputation and the right of journalists to write what they want are then reduced to the competing interests of two distinct sets of individuals. This approach seriously unvalues the importance of free speech.

Free speech is not simply important to those who wish to speak. It is important for the whole of society and is fundamental to democratic society. The right is enshrined in article 19 of the UN Universal Declaration of Human Rights 1948. At the very first session of the UN it was stated that this right was to be valued as "freedom of information is a fundamental human right ... and the touchstone of all the freedoms to which the United Nations is consecrated." In the United States the right to free speech is established in the First Amendment. It is given a privileged position. The Supreme Court stated that freedom of speech was "the matrix, the indispensable condition of nearly every other form of freedom". (Cardozo J., Palko v Connecticut)

So what is it about free speech that makes it so valued by humanity?

Free speech matters. A society that bans the right to speak bans freedom. Free speech is needed in politics if we are to have any possibility of calling our political leaders and representatives to account. Government is less likely to become corrupt if it lacks the power to punish those who criticise. Free speech also aids good government since society is more likely to discover good rather than bad policies if political discussion is free and uninhibited. As Ronald Dworkin, professor of law at Oxford and New York Universities, stated "free speech is based on a national endorsement of a strategy, a collective bet that free speech will do us more good than harm over the long run." (Freedom's Law 1996 p200)

But the importance of free speech is not confined to the realm of politics. Free speech is important for the advancement of all knowledge as we have already discussed with regard to the natural sciences. As J.S. Mill contended enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one's own conclusions against opposing views. Therefore, all points of view - even those that are "bad" or socially harmful - should be represented in society's "marketplace of ideas."

Free speech also matters because a society that allows its citizens to speak freely on all matters is a society that treats its members as full adult citizens. Each is assumed to be capable of making morally responsible decisions. We can make up our own mind about what is good and bad or right and wrong. Without free speech a third party like the judiciary or government acts as the censor decreeing what individuals cannot be trusted to hear. This is an insult to all adults in a free society. As Dworkin argues no-one "has the right to withhold an opinion from us on the ground that we are not fit to hear and consider it." (Freedom's Law 1996, p20)

Free speech has to include the right to comment on the behaviour and conduct of others. It also has to include the right to be wrong. Once society bans selected speech for whatever reason the right is damaged for all. The right to free speech is an indivisible right. If only certain words are free or only certain individuals can speak their minds then the right does not exist as a right. Freedom for all is then replaced with repression and inequality since it is assumed that there is some institution in society that decrees what can and what cannot be said.

So if a balance has to be struck between the rights of the defamed and the rights of all to free speech then it is in the interest of society as a whole that this balance should be struck in favour of free speech. It is my view that to do otherwise would mean that the interests of the society as a whole are forsaken for the interests of a select group of individuals. If the interests of society at large are to be curtailed then it must surely be in the most exceptional of circumstances.

The English Way

English libel law takes a different view of things. An examination of the law demonstrates that in the normal course of events the defence of an individual's reputation is given far greater importance than free speech. The very existence of libel actions mean that speech is no longer free. Those who exercise their right to free speech can be punished by the courts, if that speech is found to have wrongly lowered the reputation of the plaintiff. The courts are therefore empowered to routinely take what ought to be the extraordinary step of punishing speech. But serious though this violation is, very little consideration is given to the violation of free speech in court proceedings.

This imbalance is evident in a number of ways. The meaning that is put on the words complained of is not their normal or most likely meaning but a meaning or innuendo that the words are "capable" of conveying to an ordinary right-thinking person. This measure alone widens the scope of what speech the courts can punish. For example in 1986 Lord Gowrie recovered 'substantial' damages from the Star newspaper which he claimed had implied that he was on drugs. Lord Gowrie had told the press that he was leaving the cabinet because he could not bring up his family on his ministerial salary. The article stated:

"There has been much excited chatter as to why dashing poetry scribbling minister, Lord Gowrie, left the cabinet so suddenly. What expensive habit can he not support on a salary of £33 000? I am sure Lord Gowrie himself would snort at the suggestion that he was born with a silver spoon round his neck."
(Cited in Scott-Bayfield, Defamation: Law and Practice, 1996)

Lord Gowrie claimed that references to 'snort' and a 'silver spoon' round his neck implied that he had taken drugs. The court agreed that such innuendo could be read into the article. Lord Gowrie won his case.

Nor does the importance of free speech figure very highly in the defences that are available to defendants. Things are considered a matter of free speech or what is known as 'absolute' or 'qualified privilege' only in a very narrow set of circumstances. Statements in Parliament and in courts, and reports of them by journalists are examples of 'privileged' speech which are difficult to attack in court even if they contain untrue and damaging statements about individuals. Here the importance of free speech is recognised and unrestrained speech is given priority so that Parliament and the courts can work properly and the public can freely monitor and assess their workings.

Elected bodies like County Councils are also unable to resort to libel writs if their reputation is wrongly damaged. This was established by the House of Lords in Derbyshire County Council v Sunday Times. More recently it was held that political parties face a similar restriction. In Goldsmith v Bhoyrul the judge stated that in the instance of a political party suing for defamation "the public interest in freedom of speech was sufficiently strong and should clearly not be fettered." (Times 20 June 97)

These circumstances however are exceptional. In the normal course of events the public interest in free speech is not deemed to be sufficiently strong so as to serve as a defence in libel proceedings concerning anything which is, or appears to be, a statement of fact. So for example, when the Guardian claimed in Bennett v Guardian Newspapers [1995] that the "public figure defence" (not liable unless knowingly or recklessly false) should be available in respect of their reporting of allegations against police officers, they were turned down flat. The right to full public criticism of public figures was deemed to be less important than the right of public figures to defend their reputation through the courts.

Individual politicians, the police, multinational companies, celebrities and major corporations have the same right to sue in libel cases as the rest of us. The courts pay no heed of the fact that society needs to know what such figures are up to for the democratic process to be fair and free. As far as the British courts are concerned the need for full and frank debate on matters of public interest relating to all of these powerful and influential figures is not sufficiently strong to justify restraining the use libel writs which silence discussion.

The burden of proof also favours the rights of the plaintiff above the rights of those who speak freely. The plaintiff has to do very little to take away the cherished right of the defendant to speak his mind. As the law stands the plaintiff merely has to prove that the defendant's words are capable of damaging his reputation. Once this is established the burden of proof shifts to the defendant. The defendant then has to prove that the words were either true or fair comment - that is his honestly held opinion based on true facts on a matter of public interest. If he cannot prove this then the plaintiff wins. If there is doubt in the minds of the jury they have to find in the plaintiff's favour even though it is the defendant who will be punished for the action. Normally in English law the person who stands to be punnished has to have the case proved against them.

Libel laws therefore take little heed of the important right to free speech The law is weighted in favour of the plaintiff. One survey of notable libel actions found that in the ten year period up to 1996 the defendent won only 20 out of 200 cases that were tried. (See Scott-Bayfeild, Defamation law and practice, 1997) This is a truly shocking statistic when one considers the fact that defendants will only fight the cases that they feel they have a reasonable chance of winning. The law has little regard for the fact that it punishes those who are simply exercising the most cherished of rights - namely the right to free speech. A reform of the law is urgently needed. A society that allows the rich and powerful to silence and punish their critics can no longer call itself democratic.

It is time to look for a new remedy to the problem of defamation. That is the subject of this briefing. In my view it is time that we ceased seeing the right to defend one's reputation and the right of free speech as competing rights. Society arrives at the truth of a matter through free and uninhibited debate. The same approach should be adopted for those who wish to defend their reputations. As Judge Louis Brandeis of the US Supreme Court argued in Whitney v California (1927):

"If there be time to expose through discussion the falsehood and the fallacies to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression."

There is remedy for defamation here. Instead of punishing those who speak, why not reply in kind and let those with the more convincing arguments win through?

Helen Searls
Legal co-ordinator of Informinc

The papers

1. The wrong balance
Helen Searls

2. The burden of proof
Susannah Downing

3. Negligent Defamation
Jon Holbrook

4. Abolishing Libel Law?
Daniel Lloyd

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