A two stream libel regime with most cases heard in the County Court or a tribunal, would reduce complexity and costs, argue Professor Alastair Mullis, from the University of East Anglia, and Dr Andrew Scott from the London School of Economics.
In a new academic paper, first presented at the Reframing Libel symposium at City University London last Thursday, the pair propose the overwhelming majority of English libel cases should be considered by the County Court, the Tribunals Service, or “an appropriate media (self-)regulatory body”. Only very unusual cases would pass through the second stream and be heard before the High Court.
They raised the question of whether a right to reputation could be protected by Article 8 of the Human Rights Act, as previously discussed on the Inforrm blog. Given that Strasbourg jurisprudence has allowed Article 8 to encompass a person’s physical and psychological integrity, it could be reasonable to contemplate a Convention right to reputation, they suggested.
Their presentation outlined:
First stream: libel tribunal / county-court / (self-)regulatory body
- to decide capability of meaning; applicability of justification / fair comment defences
- to award max damages £10k for Article 8 harm (soft cap imposed by dint of choice of route); no capacity to award special damages
- to determine appropriate discursive remedy
Second stream: High Court
- to consider claims for serious Article 8 harm and special damages only; no damages for vindication / intangible harm
- reliant on claimant’s capable (reasonable) meaning and harm-causing meaning respectively
- cap on Article 8 harm benchmarked to damages for physical injury; no limit on special damages
Mullis and Scott discussed how damages awarded to vindicate reputation, but asked whether monetary award is the best way to achieve this. They preferred “discursive remedies,” such as “mandated apologies, corrections, rights to reply, and possibly declarations of falsity”.
The pair, while wishing to minimise the so-called ‘chilling effect’, are worried by particular aspects of the libel reform movement and the subsequent reform bill, currently passing through Parliament, they said.
“We are concerned that by placing too much emphasis on revising highly technical aspects of the substantive law, Lord Lester’s Bill distracts attention from other possible reforms that could achieve his goals more simply and effectively. As things stand, he promises lawyers access to a lucrative retirement fund.”
Scott and Mullis said that they examined “the constitutional principles that should underpin a coherent libel law and the purposes that any such law is intended to achieve”.
“For most cases, our proposals would radically reduce complexity and costs, limit the chilling effect on freedom of speech, but at the same time secure the remedy that claimants most want: an apology, correction or right to reply. Only in the case of the most serious and/or most damaging libels would we continue to see High Court trials.”
They said that their proposals would require legislative intervention, but little institutional change because “what would be necessary is already – essentially – in place”.
Their paper, ‘Reframing Libel: taking (all) rights seriously and where it leads’ will be made available as part of a set of working documents published by the Centre for Law, Justice and Journalism. Its abstract is reproduced below:
In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law, its purposes, its substance, and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation and privacy. By doing so, we are able to ground many of the proposals for reform made previously by Index on Censorship, English PEN, Lord Lester and others. We do so, however, not through the prism of an over-weaned emphasis on freedom of expression, but rather by triangulating the rights and interests of claimants, defendants and the wider public. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice and reduce costs for all but the most serious and/or most damaging libels.
Dr Andrew Scott has posted further explanation of the paper on the LSE MediaPaL blog at this link.
A slideshow of their presentation at the Reframing Libel conference can be viewed at this link.
Judith Townend is a MPhil/PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at http://meejalaw.com and is @jtownend on Twitter.
The system of separate trials for meaning (the so-called s 7A trial) was tried in NSW, Australia for 10 years. It was a total failure. Juries returned perverse verdicts, legal costs doubled and when uniform legislation was introduced in 2005 the separate trial for meaning was abandoned and a jury trial for every issue except quantum introduced. There are now calls from many quarters (most recently from Michael McHugh, who has retired from the High Court of Australia) to consider asking the jury to determine all issues.
The problem with separate trials about meaning is that they bifurcate the trial process, distort the trial to place undue weight on meaning and double the costs. In addition, if you are planning to run these in the County Court, there is the issue of whether there should be specialist judges. In addition, District Courts have limited resources and may not be able to deal with defamation cases with the speed required.
The solution is, in my view, to separate out media from non-media cases, a solution Darius Milo has proposed (and Lord Hoffman) and to have a speedy trial for disputes between neighours, defamatory emails, angry words in the shopping centre, notices on the bowling club bulletin board etc from the procedure available to those defamed on page 1 of the daily newspaper.
Could I suggest that all reform proposals which involve a multiplicity of courts and processes will lead to a multiplicity of costs. It is the legal costs tail which is wagging the defamation dog, and processes which add to the cost add to the restraints on freedom of speech.
While the take here on the NSW experience is fair, it has little or no relevance to what myself and Alastair Mullis have proposed. We do not envisage a separate trial for the determination of meaning followed by the trial proper. We do not pretend that there is always a single meaning to be inferred from a given publication. Rather, we ask what is the nature of the harm that is caused by libels and how can be best design a libel regime to accommodate these purposes while balancing all pertinent individual and social interests.
The first type of harm – which can be more or less significant depending on the facts at hand – is the psychological impact caused in the mind of the claimant. This is currently addressed under the rhetoric of damages for injury to feelings, hassle and upset. It is basic knowledge in social psychology that one’s sense of self-worth is determined in part by what one perceives to be the regard in which others hold us (the ‘looking glass self’). Libels can cause us to think that others will think less of us, so in principle and assuming a sufficient level of seriousness, libel law should provide an appropriate remedy. For this we think damages are appropriate, although we imagine that in 99 of 100 cases the measure will be low (< £10k). The next stage in our thinking is that if the damage is caused in the mind of the claimant, then it is the claimant's inferred meaning that should provide the basis for the subsequent consideration, subject to a test of capability / reasonableness / significance. Determination of meaning doesn't need a separate trial or process. Indeed, it becomes very straightforward indeed. The question is not 'what is the meaning', but rather only 'is the given meaning a capable or reasonable one'.
The next type of harm is intangible loss (the unquantifiable amount of harm presumed to have been caused to reputation). Here we propose to withdraw the remedy in damages for reasons elaborated in our paper.
Damages are also currently awarded for vindication. We think this is not the best way to achieve restoration of reputation and prefer mandated discursive remedies (corrections / apologies / rights of reply, perhaps declarations of falsity). Indeed, we think that relying on vindication damages distracts attention away from the need to put the record straight. Here a question for us was whether the decision-maker should continue to rely on the claimant's meaning. We concluded that (a) the single meaning rule is counter-factual, and (b) given that (or if) the complained of meaning(s) will have been ruled reasonable then some of the audience can be presumed to have inferred those meanings. if this is the case, and if the expected remedy is a discursive one only, then what reason could there be for the decision-maker not to oblige an apology for each unprovable but damaging meaning.
The final type of harm is special damage / provable loss. We propose that damages for such loss should be recoverable only in the High Court, track-two forum. Hence, if you want to take a case down this route you would first have to make a good argument that special damage or severe Art 8 / psychological harm had been caused (eg Lillie and Reed v Newcastle City Council). That won't be easy – 1 out 100 cases?
We appreciate that there may well be many grounds on which our proposals can be challenged / criticised. We'd hope that such criticism will be based on a full and accurate reading of our proposal. Our working paper is to be published by City University, and we will be circulating to many people who have kindly agreed to offer us comment. We would also be very keen to receive as much feedback from others as possible, and hope ourselves to identify shortcomings in our thinking. Ultimately, contrary to the above comment, we think that our proposals would significantly reduce complexity and hence costs in the libel regime, while still securing a proper balance between reputation and free speech while enhancing access to justice for all parties.