Contrary to some suggestions, NGOs such as Index on Censorship and English PEN are not here to represent the commercial interests of the media. We are not, in my view, ‘free speech fundamentalists’ or ‘absolutists’ as we are sometimes called. And we do not represent the collective interests of NGOs as such, although we have repeatedly raised the concerns of NGOs about the impact of libel law on their operations.
English PEN is wholly charitable and Index is partly charitable. As such, both organisations are committed to upholding the Charity Commission’s vision of ‘public benefit’ through the promotion of human rights. Where the human rights framework itself is unclear, or rights come up against each other, then we are obliged to take a position. In many – but not all – of these cases, we reiterate our support for freedom of expression.
In the words of the preamble to the United Nations Declaration of Human Rights, freedom of expression has been described as the ‘highest aspiration of the common people’, and given our interest in the spheres of literature and journalism we tend to take this aspiration very seriously – but again, not because we ‘represent’ the private interests of writers or journalists, but because we recognise the incalculable public benefit of a vigorous literary sector and a free media. History has shown us what follows when writers and journalists are unduly shackled, and we only have to look around the world to find examples of countries where libel and other mechanisms are used to silence dissenting or heterodox voices.
The UNDHR refers to the important role of civil society in taking human rights forward, and we see ourselves as part of that mission. I’m not aware, as yet, of any charities which seek to promote the so-called right to reputation, though this may change.
Nonetheless, both organisations, and our coalition partners at Sense about Science, have been routinely attacked throughout our campaign for libel reform for promoting a ‘defamers’ charter’, that would give the media a licence to print defamatory stories without restraint.
Needless to say, this has never been our intention. As human rights charities, we recognise the need – in the words of Alastair Mullis and Andrew Scott – to ‘strike a fair balance between private reputation and public information.’ Their suggestion that this has never been a ‘motivating factor’ for us seems ungrounded.
I have to report that, when we have attempted to strike this balance too carefully, we have been attacked from the other side for weakening the cause of libel reform. The course of public benefit never has run smooth.
Like the BBC’s notion of ‘public service broadcasting’, the Charity Commission’s idea of ‘public benefit’ is in fact very hard to define. These concepts are part of the wider family of which the ‘public interest’ defence is also a member. What these ideas have in common is some notion that the needs of society as a whole outweigh the interests of its individual members. This is a deeply moralistic idea, with its roots in utilitarian philosophy. What we are really talking about here is the greater good.
So the question is whether libel law is capable of protecting the greater good. Let’s begin by accepting, therefore, that we are all committed to the concept of the greater good, even if we agree to disagree about the version of the greater good we recognise.
So how can we think about the greater good in libel law, when two such fundamental values as free speech and reputation appear to be in conflict with each other?
I’d like to argue against the idea that reputation is a protected right under Article 8. This is a highly controversial idea, and – to the extent that the ECHR and HRA are ‘living instruments’ and capable of evolution – I hope very much that they will shortly revert to the status quo ante on this issue.
Human rights are only meaningful to the extent that they represent state responsibilities. They are designed to mitigate the grotesque power imbalance between states and their citizens. We recognise the right to private life because otherwise states would be free to invade their citizens’ homes and relationships. This is a vitally important right, and one which needs better protection.
Our reputation is not a function of our private life, however; it is a function of our public life – the interplay between what we do and the social norms against which our actions are judged. We cannot escape from our reputations unless we escape from public life altogether; nor can we control our reputations.
Nonetheless, the tort of defamation attempts to stop people ‘lowering the claimant in the estimation of right-thinking people generally’ – in other words, it seeks to control an aspect of our public lives. That is why it quite rightly did not feature in Article 8, which focuses on the private sphere, but as a qualifier to Article 10, which is explicitly concerned with the public sphere.
The public interest defence inhabits the grey area where the greater good may be better served by a publication that lowers the claimant than by allowing the claimant to maintain his or her high standing. It represents the most important element in the law of libel, insofar as the defence attempts to strike that elusive balance between our interest as individuals in self-protection, and our interests as a society in openness and transparency.
So how do you get this right?
There are many ways of approaching public interest. The American approach focuses on the subject of the publication and asks whether they constitute a ‘public figure’. This test seems unsatisfactory to me. It suggests firstly that public figures deserve a lower protection against libel than other individuals, which seems unfair; and it suggests that public figures constitute an identifiable section of the population, which seems impossible. When baseball coaches become public figures, you wonder who is a private figure.
The approach in Reynolds, which was the basis for Anthony Lester’s Private Members Bill, is to focus on the conduct of the author or publisher of the libel in order to determine whether they qualify for the ‘privilege’ of publishing untruths. This also poses problems. Some authors and publishers may be more capable than others of following the terms of the Reynolds defence. Some of the elements of the test may actually be inappropriate or dangerous. Others may be redundant. Despite the apparent softening of the test in Jameel, defendants continue to find it an uncertain defence, and an unfair one, because of the burden it places on the defendant.
NGOs have found particular obstacles in meeting the terms of Reynolds because of the cost of following all the steps involved, and the danger that may be posed by contacting the subject of a report. Some NGOs have also expressed concerns that an injunction could prevent publication of a report, leading to further costs and uncertainty for the organisation.
Personally, I think that it’s right to place a considerable burden on the defendant in this area. We are asking a lot of the court here: to accept that a publication may or may not be true, but that the need for publication outweighs the need to prove its veracity. If I were a judge or a jury member I would want to hear a good argument for the need to publish something which may not be true.
In order to establish such an argument, I would prefer to emphasise the content of the publication, rather than its subject. Does it deal with a matter of politics, commerce, the environment or science, for example? If the court can establish that it does, and that the piece was published in good faith, and with reference to any relevant professional codes, then I believe we have enough to construct a free standing public interest defence. To codify Reynolds does not take us very far forwards; and to play about with Reynolds risks merely confusing the issue further, as Mullis and Scott have observed.
I would happily accept a considerable burden on defendants in this area if the burden for claimants was rather higher elsewhere in libel – for instance in launching an action. A few more checks and balances earlier in the process would remove the risk of vexatious cases, and it would therefore seem reasonable for defendants to have to work fairly hard to justify their actions. But first I would like claimants to show that the publication is inaccurate and damaging, either psychologically and/or financially.
Next steps: a holistic libel reform package
This is why it’s imperative to consider reforms in the round. It’s boringly easy for opponents of reform in general to attack one reform from one angle and the other reform from the other. If we are to have a grown-up conversation about the place of libel law in a robustly democratic public sphere, then we need to bear in mind some important principles:
- There is no right to a good or accurate reputation.
- A free media is not an evil, or even a necessary evil; it is a public good.
- Libel is for everyone, not just for lawyers.
I would suggest that we begin a new Libel Bill by defining the tort as the publication of inaccurate and damaging material about an identifiable individual or corporate entity. We would then require claimants to show that the publication is inaccurate and damaging. Only if claimants had been able to show this would the court ask respondents to mount a defence, based on one of the three headings of truth, honest opinion or public interest.
In order to improve access to justice and increase the flow of cases, I would recommend that we conduct further research into the feasibility of establishing a libel tribunal, which would hear such cases quickly and straightforwardly in a user-friendly fashion that would remove the need for expensive legal representation. I’m happy to hear other suggestions, but I object to the idea – expounded by some lawyers shortly before the General Election, when Jack Straw’s attempts to reduce the impact of CFAs on defendants was defeated – that litigants have a right to CFAs under Article 6 because otherwise the exorbitant fees of these same lawyers, would prevent their access to justice. The fact that anyone dares to mount such an argument in public really boggles the imagination.
So I would value any serious attempts to create a libel system based on reality, not rumour. The Government’s announcement that it will draft a Libel Reform Bill should be welcomed by everyone here. It provides an opportunity for all stakeholders in this debate to come together in a shared purpose, which is to define and protect the greater good in the law of libel. In the final analysis, we all have a public interest in getting this right.
Jonathan Heawood is the Director of the NGO PEN, this paper was originally presented to the MBL/Inforrm Conference on 15 July 2010.