Bar Council Law Reform Committee: Draft Defamation Bill Response – Part 2: Threshold, Responsibility, Truth and Comment

24 06 2011

This is the second part of a third part edited extract from the  Response of the General Council of the Bar’s Law Reform Committee to the Joint Committee on the Draft Defamation Bill.  The full response can be found here.

Clause 1: Threshold for actionability

We do not believe that Clause 1 ought to be enacted.  The current common law has already made proper provision by insisting on a threshold of seriousness before a claimant is able to purse a defamation claim. In Thornton v. Telegraph Media Group Mr Justice Tugendhat emphasised the need for that threshold — some tendency or likelihood of adverse consequences for the claimant. His decision has meant that a defamatory allegation must “substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency to do so” in order to be actionable.  To further change this part of the law would encourage the expenditure of time and money.

Clause 2: Responsible publication in the public interest

Clause 2 appears to codify the existing common law.  We suggest that the formulation of the defence set out in the draft Bill ought to be reformulated in order to introduce an element of fairness to claimants and keep society better informed.  The reform proposed would not compromise the rationale of the responsible publication defence; to reduce the chilling effect.

The responsible publication defence constitutes a very serious abrogation of an individual’s Article 8 right to reputation.  It begs the question: is it just to deprive a person who has been defamed of any chance to vindicate his reputation if the article which defamed him was on a matter of public interest and the relevant newspaper carried out a responsible investigation prior to publication, even if it transpires that the allegation made by it had been false?

A claimant will take on the daunting task of bringing a defamation claim because he will know that the allegation is untrue; this will ordinarily sustain him through the protracted process of taking a claim through to trial against a newspaper.  However, consider the position of a claimant who has set out to vindicate his reputation who is faced by a responsible publication defence:

(a)             The truth of the accusation made against him becomes irrelevant.  All that matters is whether the article concerned a matter of public interest and whether it was responsibly investigated.  If the claimant wants to vindicate his reputation he will have to go to trial in the hope that the newspaper fails to prove that it investigated the story against him responsibly.  The court will not consider whether the allegation was true or not; such evidence will be inadmissible.  The claimant will rightly not care what steps were taken to investigate the story, he will just want some form of public acknowledgement that it was false.

(b)            Whilst the claimant may be able to take a view before commencing litigation as to whether or not the article in question related to a matter of public interest, he will have no idea as to how the relevant journalists investigated the story.  It will be quite possible for them to have acted responsibly (by ticking the responsible publication boxes) and for the article to be untrue (which is why the defence was devised).  Thus, if the claimant wants to spend up to several years enduring the stress of litigation and the fear of losing the claim (and possibly his home), he will have to set out to refute something in which he has no interest: that the article was in the public interest and investigated responsibly, when all he (quite reasonably) wants is an acknowledgement that the allegation made against him was false.

If the claimant loses an action in which the defence was that of responsible publication, he will be left with a serious allegation having been made against him without having been given the chance to establish that it was false and society will most likely be left believing that the original allegation was true.  There will be situations where the impact upon a claimant will be such that he or she will receive death threats or even have to go on the run and yet will still be deprived of an opportunity to vindicate their reputation. In a case in which a Tamil hunger striker was accused by the Daily Mail and the Sun of secretly eating cheese burgers during his hunger strike he received death threats from fellow Tamils who wrongly believed, having read the defamatory articles, that he had betrayed them (see BBC1 documentary See You in Court broadcast on 17 May 2011).  In Lillie & Reed v Newcastle City Council [2002] EWHC 1600 (QB) two nursery nurses were wrongly accused of paedophilia.  As a result they had to flee their homes and go into hiding for fear of physical attack.  In both cases there was a public interest in the relevant allegations.  If the journalists concerned had acted responsibly in publishing the allegations (regardless of the falsity of those allegations) a responsible publication defence could have succeeded and the claimants in both cases would consequently have had their lives blighted and given no opportunity to obtain vindication.

The aim of the responsible publication defence is to reduce the chilling effect.  If, for instance, a newspaper has done its best to verify a story on a matter of public interest, it will be more ready to publish it if it knows that it will have a defence even if it later discovers that the article was false.  It will be more willing to publish the story because, on the information before it, it will know that it has a good chance of seeing off a claim for defamation even if it transpires that it could not prove that the published allegation was true.  This will allow more stories in matters of public interest to be published (some of which will be true but some of which will not; society will never know which is which).

The unfairness to the claimant (and to the public) which arises from the use of the responsible publication defence could be ameliorated, whilst still achieving a meaningful reduction of the chilling effect, by making provision for the following proposal.  A provision could be inserted in Clause 2 to the effect that if the defendant wishes to rely solely upon the responsible publication defence, it must voluntarily publish a statement within three months of notification of the claimant’s claim, so far as it is reasonably able, with reasonable prominence to the effect that the allegation was false (a “Statement of Falsity”).  The claimant will then be able to either:

  • end his claim and receive his costs up to the date upon which the Statement of Falsity was published but no damages (his reputation having been meaningfully vindicated by the voluntary publication of the Statement of Falsity); or
  • to carry on with the claim and, if he wins, to receive damages and costs in the normal way (i.e. if the responsible publication defence ultimately fails).

Whilst the above proposal provides for the defendant to pay the claimant’s costs up to the date of the publication of the Statement of Falsity, so long as such a Statement is made early on in the litigation these ought not to be substantial.

Sometimes a defendant will choose to plead a justification/truth defence as well as a responsible publication defence.  In pleading a justification defence a defendant will set out in full detail his case as to why the allegation in issue is true and will make a Statement of Truth at the end of the relevant legal document in support of that assertion.  This is regarded as a very important step in litigation.  It is of itself damaging to the claimant; now that the newspaper has examined the allegation in the cold light of day and, no doubt following further investigation, it has asserted to a court of law that it is true (and may be relying on matters of which it was unaware at the time of publication).  Real unfairness against a claimant will arise if responsible publication and justification/truth defences are both pleaded and the responsible publication defence is heard first and succeeds.  The trial as to whether the article was a responsible publication in the public interest will not have considered whether the article was true or not.  If the claimant tried to give evidence that the allegation was positively untrue, that would be ruled to be inadmissible.

Where a justification defence is pleaded in addition to a responsible publication defence, the defendant could not be expected to make a Statement of Falsity.  In such circumstances the truth/justification defence ought to be tried first.  If the newspaper loses the justification defence, it would have to publish a Statement of Falsity in order to continue with its responsible publication defence.  However, if a claimant chose to forego the option of winning damages, he could end his claim at that stage and receive his costs but no damages.

Clause 2 ought to include a provision to the effect that the relevant allegation ought to have been investigated to such a degree that the publisher reasonably concluded that the allegation in issue was true.  This avoids the rather sterile “ticking of boxes” and instead focuses on the attempts being made, in the particular circumstances surrounding publication, for the publisher reasonably to satisfy itself that the allegation is true.

Clause 2(3) Reportage

Clause 2(3) refers to what is usually called the “reportage” defence.  The formulation adopted in Clause 2(3) is fraught with danger.  We submit that:

  • Clause 2(3) ought not to be included in the Bill; and
  • serious consideration ought to be given to abolishing the common law reportage defence.  We note that this suggestion was made by Professor Alastair Mullis and Dr Andrew Scott in their submissions to the Committee.

Clause 2(3) would permit a newspaper to pass on a defamatory allegation made by one individual against another so long as it was made during a dispute and the dispute was reported accurately.  Thus, a highly defamatory allegation could be republished by a newspaper without it having to carry out any check upon the truth of the allegation and without the allegation even being on a matter of public interest.  Suddenly, a dispute between a couple of people could permit a newspaper to report upon untrue allegations made during that dispute to millions of people with impunity. It undermines the well-established principle that “repeating someone else’s libellous statement is just as bad as making the statement directly” (the repetition rule).  We would submit that it is not right that the repetition rule should be disapplied simply because a writer chooses to repeat a serious defamatory allegation about someone in the course of “an accurate and impartial account of a dispute between [that person] and another person”.

Clause 2(3) does not require a process of verification, of independent checking of the relevant allegation.  Publishing serious defamatory allegations without verification, outside the closely regulated confines of statutory reporting privileges, is irresponsible. As Lord Bingham put it in Jameel v Wall Street Journal Europe Sprl: “The rationale of this test [of responsible journalism] is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify.”  If, as Lord Bingham said, the very rationale of responsible journalism is verification, how can journalism be responsible if no steps to verify are taken?  Clause 2(3) will grant a licence for the irresponsible laundering of libels with impunity.

Furthermore, Clause 2(3) makes no provision for the defence to be defeated if the publisher is found to have published it maliciously.

The Reportage defence encourages ‘churnalism’.  Nick Davies in his critique of contemporary journalism, “Flat Earth News”, described the journalistic practice of simply repeating information taken from elsewhere at face value:

This is journalists failing to perform the simple basic functions of their profession…This is journalists who are no longer out gathering news but who are reduced instead to passive processors of whatever material comes their way, churning out stories, whether real event or PR, important or trivial, true or false…This is the heart of modern journalism, the rapid repackaging of largely unchecked second-hand material, much of it designed to service the political or commercial interests of those who provide it”.

Of course, it is up to newspapers to choose how to conduct their business, but they should not be given a licence to defame merely because they have chosen to repeat other people’s libels.

Abolition of the reportage defence will not prevent newspapers from reporting disputes.  Such reports can be quite easily made because all the newspaper will need to do in reporting them is not to point the finger of blame in such a way as to push the meaning of the relevant article over the threshold of what is defamatory.

Clause 3: Truth

The defence of truth (currently known as justification) has the benefit of the experience accumulated by the common law from applying the defence to a wide variety of factual situations.  It appears that the principles derived from this case law will continue to apply because Clause 3 does not appear to change the law but only to codify it.  But, if this is correct, we wonder whether there is any point in implementing Clause 3.

We believe that submissions have been made that the burden of the proof ought to be reversed.  This would have serious implications for one of the key principles underpinning not only English law and jurisprudential tradition but also the law and traditions in all other jurisdictions: the presumption of innocence[1].  If a defendant, usually a newspaper, chooses to accuse someone of a crime or other morally reprehensible act, it is difficult to see the justice in obliging that individual to prove his innocence.  Put another way: let he who asserts prove.  One might ask why should a claimant (who has played no role in the investigation of the story, the determination of its content or the decision to publish it) have to prove his innocence?

In regard to corporations, it is difficult to see why a different rule ought to apply.  Most defamation actions arise from publications made by newspapers who will frequently be more wealthy and more powerful than the corporations whom they defame.  Many individual claimants will be wealthier than most corporations.  The truth or falsity of an allegation will not turn on the wealth of the person or corporation defamed.  The importance to society of knowing the true position may in fact be of a higher order when a corporation rather than an individual is defamed because more people will have dealings with a corporation, whether as customers or shareholders.

Clause 4: Honest Opinion

The common law honest opinion defence, following the liberal development of it by the Supreme Court in the 2010 case of Spiller v Joseph ([2010] UKSC 53) is inherently fair and recognises some of the subtleties of the defence which do not appear to be recognised in the Bill.  Following Spiller, the defence will apply if:

 a)      the words complained of constitute comment;

 b)     the words, at least in general terms, specify what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about;

 c)      the facts upon which the comment is made must be true;

 d)     the comment is one which a person could honestly make, however prejudiced, on the relevant facts (even if the comment was objectively unreasonable given the relevant facts);

 e)      the comment is on a matter of public interest (which in this context means legitimate public concern); and

 f)       the publisher did not act maliciously.

The merits of the defence are that:

  • it gives a commentator a wide ambit within which to pass comment; but
  • it is not unduly unfair to the person being defamed because the reader will know roughly what the comment is about e.g. if the commentator says that a politician is racist because he wants a temporary ban on immigration, the sting of the “racist” allegation will be viewed in context because the reader will realise that the politician is not being called a racist in the more usual sense.

Take the example given by Lord Phillips in Spiller: where a barrister is said by a commentator to be “a disgrace to his profession”, for the defence to apply the commentator “should make it clear whether this is because he does not deal honestly with the court, or does not read his papers thoroughly, or refuses to accept legally aided work, or is constantly late for court, or wears dirty collars and bands.” (paragraph 103)  It would be unfair if the comment was actually made because the barrister was scruffy (without the commentator stating that this was the reason), given that many readers would assume that the comment was made because the barrister was negligent or bad at presenting cases to the court.

A fair balance must be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making the criticism.” (Paragraph 104)

Clause 4 does not require the comment to identify in general terms what it is about.  It could thus apply extremely unfairly against claimants.  Furthermore, it would be better for the public to know the general reason as to why the comment has been made; it will cause it to be better-informed.  It is open to question whether comment which does not give a fair indication of its basis contributes much to society at all.

If Clause 4 is to stand, the term “public interest” ought not to be used and the term “legitimate public concern” used instead in order to avoid confusion.

We agree with the point made by Professor Mullis and Dr Scott in their written submission (§23), that Clause 4(4)(b) ought not to be enacted for the same reasons.  Honest opinion ought to be on true facts, not on information which might be true or false.

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24 06 2011
Media law mop up: Early Resolution launch; Bahraini activists jailed; Daily Mail’s libel wars | media law & ethics

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