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the legal battle: Libel law The burden of proof Susannah Downing |
Libel Law: time for change 1. The wrong balance >2. The burden of proof 3. Negligent Defamation 4. Abolishing Libel Law? |
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It is often said that the burden of proof, or if you prefer, the obligation to prove whether or not there has been a libel, falls to the defendant. That is not strictly true as the general burden falls to the plaintiff.1 The plaintiff must prove that the statement is defamatory and that the defendant published the statement. But, the plaintiff having done so, the burden then shifts to the defendant who must prove either that the statement was true, or that it was fair comment on a matter of public interest or that it was privileged. That is not to say that there is no further active part for the plaintiff to play, it may wish to attack the defences such as justification, for example, with evidence of malice or perhaps that the statements made were not of opinion but of fact. This reversal of the burden is due, in part, to the historical presumption that a man's reputation is injured by a libel. There is no requirement for the plaintiff to prove that he has suffered actual harm or damage to his or her reputation.2 He simply comes to court and says "I am wronged and I am wronged by you". This presumption of harm has resulted in the development of a legal anomaly which is at odds with the rest of the common law. Generally in tort cases it is for the plaintiff to prove that he has suffered a loss, that the loss was foreseeable and that the loss was caused by the defendant's unlawful action. The defendant can of course adduce evidence to rebut that. The standard, or threshold of proof is that of the balance of probabilities. The burden of proof is on the plaintiff. Put another way it is for the plaintiff to prove that it is more likely than not that a harm was caused to him by the defendant. In the case of a criminal proceeding that threshold is set even higher - the prosecution must prove beyond reasonable doubt that the defendant is guilty of the acts alleged against him. The development of the law of libel reflects the concerns of the lawmakers at various moments of history.3 Persons who chose to sue for libel or a slander were presumed to have the reputation that they complained of and that it had been injured. Originally truth of the words was seen as creating a greater libel, as it was believed that a person would be less aggrieved by harmful words if they were false than if they were true. The famous words of the Star Chamber were:4 "For libelling against a common strumpet is as great an offence as against an honest woman and perhaps more dangerous to the breach of the peace, for, as the woman said, she would never grieve to be told of her red nose if she had not one indeed." The Star Chamber introduced libel as an alternative to duelling; a remedy adopted with much enthusiasm and initiated by numerous writs. Libel proceedings came into their own in the 19th century as an indemnity against sullied reputation.5 The Libel Act 1843 (Lord Campbell's Act) finally introduced the defence of justification or "truth" along with a requirement that the defendant also prove that it was in the public interest that the libel be published. The burden of proof therefore has emerged with the historical development of defamation law. Few now would argue that prima facie the burden of proof in a libel case is a fair allocation of the responsibility of proving the case at trial. Professor Eric Barendt describes the burden falling to the defendant as the "presumption of falsity".6 A plaintiff comes to court, claims he has been defamed, proves publication of the libel and, it being assumed that his reputation is injured, waits for the defendant to prove his case. Now it is not that the plaintiff sits and does nothing, in fact the burden of proof can shift throughout the trial but he is protected to a great extent by the difficulties facing the defendant. Proving the truth of the words alleged may often not be possible for the defendant. It is quite one thing to prove that there is foundation for believing that the statement is true, but what a defendant believes is true is of no relevance. A defendant must prove the truth of the facts alleged. A plaintiff may know that the information required to prove truth is in his keeping alone or that the information is so difficult to obtain, or the defendant so ill-resourced that he may not have access to evidence of the allegation. The plaintiff may know that key witnesses or documents cannot be located. Jonathan Aitken sued the Guardian knowing that key allegations made against him were true. Had it been incumbent upon him to prove that the statements were not true he could not have done so. According to Barendt one argument against reallocation of the burden of proof is that it is difficult for a plaintiff to prove a negative.7 In other words it is a difficult task for someone to prove that he is not, for example, a philanderer. One could certainly see in matters of sexual impropriety that it would be difficult to prove that one had not engaged in the conduct alleged. Or similarly where someone is accused of having received an unfair benefit by virtue of their position. Yet this is certainly not impossible. For example, the burden of proof in malicious falsehood rests firmly on the plaintiff to prove that the statement was false and published maliciously. It must be remembered however that it is the plaintiff who chooses to use the court in the first place, as opposed to dealing with the allegation in some other way. Remember too that all the plaintiff has to lose in financial terms, if he loses the case, is legal costs. Nevertheless it is now the case that if there is a doubt in the minds of the jury at the conclusion of trial as to whether or not on the balance of probabilities the alleged defamatory statement is true or false, that doubt must be resolved in favour of the plaintiff. There is something quite unfair about a plaintiff occupying the moral high ground and saying "you have done me a wrong, prove that you have not", leaving the plaintiff to prove all the elements of his case. Often the argument that a man is entitled to protect his reputation from unwarranted attack is raised in the context of defamation by the media or press. This is very telling. The press are not viewed as individuals and institutions who disseminate information to the general public, for better or for worse, but a marauding gang of wasters who conspire to strip a man of his reputation. Yet not all attacks upon an individual are unwarranted. Some may be, others not. Nor are all journalists or publishers gargantuan creatures motivated by unprincipled greed with unlimited budgets behind them. Those who defend the burden of proof may say that a person's reputation is so important to them that if an attack is made, it is for the attacker to justify the conduct8, just as they would have to justify a physical assault, and that is why the burden of proof falls on the defendant. It is also said that the burden of proof operates as a disciplining measure which ensures that journalists obtain sufficient evidence of the facts and matters they allege against someone before they publish the statement which may damage that person's reputation. But the principle with which any protection of the individual's reputation is ultimately to be balanced is not that of good standards of journalism but freedom of speech. Silencing a person's critics because of presumed harm to his or her reputation is, by any reckoning, a fetter on free speech. And the "presumption of falsity" of defamatory statements is just one reason for the generally chilling effect which libel laws can have upon free speech. There are notorious examples of wealthy figures or organisations such as Maxwell, Goldsmith and the Police Federation who have used defamation proceedings as a gag upon legitimate investigation or inquiry into their conduct or affairs. These are matters about which we, members of the public, are entitled to be informed. There are people whose reputations deserve to be challenged or subject to public scrutiny. Should they not be asked to prove that the allegations made against them are untrue if they decide to take the matter to court? Preventing the examination of that reputation in the absence of concrete evidence may go beyond ensuring satisfactory standards of journalistic enquiry and may instead permit the actions of certain persons to be concealed from the public. As Lord Keith of Kinkel Derbyshire County Council v Times Newspapers observed: "What has been described as "the chilling effect" induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts to be true is not available. This may prevent the publication of matters which it is very desirable to be made public." This is not to say that anything less than satisfactory standards of admissible evidence should be met, but it does suggest that proving the elements required to discharge a defence in defamation may be more onerous than justice requires. The thing most at stake is the principle of free speech, rather than reputation. Why is it that when things are said that a man does not want us to hear the solution is less, not more, speech? Is it not a better thing that a person's reputation is questioned publicly and defended publicly in order that members of the "right-thinking" public can receive, consider and decide how the reputation of that individual shall fall to be decided? Is it a good thing that there may be matters which the public does not learn of because it would be too difficult, or expensive, for a defendant to prove? Is it unreasonable to expect a person who is in the public eye to defend their reputation if they choose to go to court on the basis that they prove the allegation made against them is not true? The overwhelming majority of defamation cases which reach trial are found in favour of the plaintiff, yet given the onerous burden placed on a defendant in defamation cases there is grave doubt that this is a reliable indication of where the truth actually lay. The burden of proof as it falls to the defendant is onerous and a fetter upon free speech. We are well reminded of the competing interests between one man's reputation and our wider concern for free and unimpeded debate with these words of Lord Inglewood in the House of Lords: "Although ... people may sometimes be less than enthusiastic about receiving unwanted publicity, it is always necessary to remember the importance of our right of freedom of expression. It is proper and necessary that the right to freedom of expression should be subject to the right of the individual not to be falsely defamed. But we would always need to exercise the utmost caution in imposing restrictions on that essential freedom."9 1 Gatley on Libel & Slander, 8th ed, para 114 Susannah Downing
The papers 1. The wrong balance 2. The burden of proof 3. Negligent Defamation 4. Abolishing Libel Law? |
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