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the legal battle: Libel law Negligent Defamation Jon Holbrook |
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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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 honest journalists. 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 life. 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 would fail. 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 without fault. 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 acted negligently.2 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 [1993] 2 WLR 449, HL @ 457E
Jon Holbrook
The papers 1. The wrong balance 2. The burden of proof 3. Negligent Defamation 4. Abolishing Libel Law? |
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