Libel law is intended to protect a person's reputation. Few would
doubt that it does this very effectively. And many would argue
that it is so effective at silencing criticism that a lot of fair
comment goes unreported. What Lord Keith described as the chilling
effect of a libel writ1 was frequently illustrated by Robert Maxwell. But Maxwell was
not unique; he was merely the most notorious exponent of the art.
The recent action brought be Jonathan Aitken failed, two weeks
into the trial, owing to a chance discovery of key evidence. Without
it Aitken may have succeeded in lying his way to a victory against
There are many criticisms that can be made of libel law. First,
the plaintiff can put an imaginative interpretation upon the words
used. To go before a jury the offending words need only to be
'capable' of being defamatory. A more balanced approach would
require that the statement was 'likely' to be defamatory. Secondly,
the plaintiff does not have to prove that the defamatory words
were false: this is an issue for the defendant to prove. In other
words any uncertainty held by the jury, and few cases that reach
trial are cut and dry, will result in victory for the plaintiff.
A general feeling of unease about libel law has led to several
inquiries since the War: the Porter Committee reported in 1948,
the Faulks Committee reported in 1975 and six years ago the Neill
Committee delivered their report. Many reforms have followed these
inquiries; the most recent ones are contained in the Defamation
Act 1996. Yet over the years little attention has focused on the
most significant feature of libel: it permits of no mistake by
the defamer no matter how reasonably or genuinely he acted.
The journalist who diligently researches an article but, through
no fault of his own, gets his personal indictment wrong is penalised
to the same extent as the defamer who simply did not care. Moreover,
this innocent mistake can be visited with a huge financial punishment
comprising of legal costs and damages. And, as the McLibel 2 have
discovered, a libel action can consume many years of the defendant's
Our desire to prevent deaths on the operating table does not cause
us to penalise the diligent surgeon whose patient happens to die
on the operating table. In most walks of life a person is not
liable unless he acts negligently, or to put it another way, if
he acts unreasonably having regard to an objective standard. So
the driver who skids on black ice through no fault of his own
is not liable to the person he seriously injures. The surveyor
who advises the purchaser that the house is structurally sound
is not liable for failing to spot a latent defect.
In these areas of activity there are sound reasons for making
negligence central to a plaintiff's ability to succeed. The concept
recognises that anyone can make a mistake no matter how careful
he is. If mistakes were always visited with financial penalties
running into six figures then individuals would become too cautious
to act. This would be damaging to social progress. But, by penalising
the negligent actor, standards are set to which individuals should
aspire. The concept of negligence can therefore help to raise
individual and social standards.
If negligence was transported into defamation law then the plaintiff's
success would depend on the defendant's actions. Did the defendant
take notes or make recordings of the reports he received from
his sources? Did he seek and obtain any documentary evidence that
would tend to support what his sources told him? Were other sources
sought? Was the defamed given an opportunity to comment?
As with any negligence action no one in particular is likely to
be decisive. And the standard to be expected of the professional
journalist would be higher than that required of the High Street
activist. But at the end of the day the jury would have to be
satisfied that the defendant did not take reasonable steps to
check the truth of his story. If he did take reasonable steps
then although the story may have been wrong the plaintiff's action
Against this argument it may be said that reputations are different:
they are of such importance that they should not be lowered unless
the defamer can prove that he was right. But it is implicit in
this argument that reputations should be given greater protection
than life or limb. It is bizarre to enable a plaintiff to succeed
with an action in respect of a reputation that was reasonably,
albeit falsely wounded, whereas he would fail if he was crippled
The issue of negligence is not completely alien to defamation
law. In Quebec a plaintiff cannot succeed unless the defendant
has been at fault. The High Court of Australia recently ruled
that a plaintiff could not succeed in respect of a comment relating
to a 'government or political issue' unless the defendant has
The Australian decision raises the issue of whether the concept
of negligence should be restricted to a certain type of defamatory
comment such as those relating to a 'government or political issue'.
At a practical level the meaning of such a restriction is uncertain.
But in principle the restriction is wrong. There is no reason
why the enhanced freedom to criticise should be restricted to
government or political issues. This definition would exclude
from its ambit many issues that should be opened up to criticism
that was reasonably made.
It could be argued that the defence of acting reasonably should
be restricted to comments that were made about an issue that was
in the 'public interest'. Such a term is already used in English
libel law: the defence of fair comment being restricted to an
issue in the public interest. But this term is interpreted so
widely as to be of little practical significance. If it did become
an important point of legal argument then it would cause the judiciary
to decide what was in the public interest. It would be better
to proceed on the basis that if it is considered worthy of publication
then it is in the public interest. This approach avoids a paternalistic
distinction between what is of 'interest to the public' and what
is in the 'public interest'.
America has sought to safeguard free speech by restricting the
ability of public figures to succeed with a libel action. They
need to show that the defendant either knew the statement to be
false or was reckless as to its falsity.3 This approach is antithetical to English common law that treats
plaintiffs equally in terms of the remedies available to them.
The approach is also wrong in principle because the argument that
public figures can defend their own reputations is not always
true. Conversely many non-public figures could defend their own
reputations without legal protection.
Libel law should not merely seek to protect a person's reputation.
It should acknowledge the importance of free speech and the right
to criticise. The present position that permits of no reasonable
error by the defamer does not in practice protect free speech.
It merely enshrines a right to speak on matters that the critic
can prove to be true. By requiring the plaintiff to prove that
the defamatory statement was wrong and was made negligently, free
speech will become a right that can be exercised with impunity
by the prudent.
1 Derbyshire CC v Times Newspapers  2 WLR 449, HL @ 457E
2 Lange v Australian Broadcasting Corporation July 1997 and Theophanos
v The Herald & Weekly Times Limited (1994) 124 ALR 1
3 New York Times v Sullivan 376 U.S. 254 (1964)
1. The wrong balance
2. The burden of proof
3. Negligent Defamation
4. Abolishing Libel Law?