In the last couple of years, calls for reform of the laws that restrict and / or prevent the media and others from publishing articles on matters of public interest have become increasingly insistent. In the UK, a very successful campaign spear-headed by Index on Censorship and English Pen has been demanding reform to the English law of defamation.
There have been Parliamentary debates and government consultations on the subject and there is now a Defamation Reform Bill, sponsored by Lord Lester of Herne Hill, before Parliament. Even more ambitious initiatives have been pursued elsewhere most notably in Iceland where the Modern Media Initiative has called on the Icelandic Parliament to identify ways to ‘strengthen freedom of expression and information freedom in Iceland, as well as providing strong protections for sources and whistleblowers.’ The vision of campaigners in both countries is to create a legal environment in which the media and others can publish articles and books on matters of public interest without fear of liability.
Given that neither the UK nor Iceland have reputations as repressive tyrannies, what has led to these calls for reform. In the UK, we have had a number of high profile libel cases and a report by Pen and the Index on Censorship that have focused attention on the existing state of English libel law. Critics complain that the law’s archaic rules chill free speech generally and academic debate in particular. English law has been characterised as being out of line with the rest of the world in terms of free speech. London has apparently become the libel capital of the world with droves of libel tourists, or as the Americans would have it ‘libel terrorists’, lining up to sue those who publish books and articles that make an important contribution to public debate. In Iceland, the financial meltdown in 2008, caused in part by secret dealings by a few banks, combined with a lack of regulation and oversight, led to calls for greater transparency and responsiveness in government and powerful institutions. The Icelandic Modern Media Initiative has focused these calls and represents an attempt to introduce into that country some of the most widely framed and protective laws on free speech in the world making Iceland in effect a haven for investigative journalism.
In principle, I strongly welcome the debate that has been stimulated by both the Icelandic Modern Media Initiative and the Pen / Index on Censorship Report. I am concerned at the potential for misuse of law so as to preclude investigative journalism, to stifle scientific and medical debate, to undermine the important work of human rights organisations and other NGOs, or to invite a flood of legal tourists from abroad. To the extent that the law allows powerful individuals or corporate entities to ‘chill’ important, warranted comment concerning themselves, their activities, their products or their ideas, it is socially dysfunctional and should be reformed.
That said, it is my view that the current commentary on the law, particularly in England, has been remarkably one-sided and in some respects dangerously over-simplified. A number of causes célèbres have been exploited – on occasion with little concern for the underpinning facts – in order to secure superficial political impact. While the general call for reform has seemed clamorous, specific proposals are often based either on a dearth of evidence or a partial representation of the existing law. In consequence, I am nervous that the important societal functions performed by the law have been underplayed, and that ill-thought reforms may serve to unbalance the public sphere to the detriment of all in the modern democratic state.
I am interested to promote freedom of speech, but not freedom of all speech. The law and other forms of regulation can legitimately, and indeed must, be used to prevent the media from causing damage out of proportion to the good achieved by openness. In the immediate context, the media should not be free to publish false and damaging allegations without any fear of being put to redress. Any attempt to garner the public benefit that might be achieved by releasing investigative journalists from the strictures of libel law risks absolving less reputable scribes of liability for naked intrusions and falsehoods. If the law can draw – or redirect – the scorpion’s sting, then perhaps we’ll all make it across the river.
Specific reform proposals
Turning more specifically to the reform proposals on the table in the two countries, I would make a couple of general points before turning to comment on some of the specific proposals.
First, while I do not underestimate the potential of these proposals to change thinking and provide models for other jurisdictions wanting to make their laws more freedom of expression friendly, the practical impact of these changes, at least in the short to medium term, is unlikely to be very great. I suppose it is possible that as a consequence of the proposed change in laws, media companies from all over the world will re-locate to Iceland which will become the Silicon valley of the media. But such mass immigration seems unlikely and while media companies and other defendants have assets elsewhere they remain vulnerable to claims brought in other jurisdictions.
Second, I would ask those who propose change to consider very carefully whether adoption of American style free speech fundamentalism is the appropriate model for Europe. Most countries in Europe, while having strong traditions of upholding free speech, recognise that there are other interests that are equally valuable that should be protected. The political and constitutional settlement in most European countries is very different from that of the United States and our histories have surely led us to value these interests differently. Exceptionalism in this respect, however, is generally recognised as being American in flavour. Bound by the First Amendment of the US Constitution, American courts have adopted what can be reasonably described as a fundamentalist approach to the value of freedom of expression. In this ‘sanctification’ of freedom of speech, the United States utilises a curiously weighted balance in the determination of competition between expression and other social values. There is therefore a heavy burden placed on those who argue for reform by reference to American law to prove that, of all the jurisdictions in the world, the United States has things right in this regard. Certainly it should not be forgotten that our medias are very different. Compared to the snarling feral beast that is the British media, much of the mainstream American media seems to act responsibly. Let that feral beast off the chain and the consequences for balanced political or other debate could be disastrous.
Third, there is virtually nothing in either the IMMI proposals and Pen / Index on Censorship Report that mentions the importance of reputation. Yet, a false and defamatory statement spoken of another person has the capacity to cause great harm and as a consequence throughout history a high value has been placed on the maintenance of a good reputation. Its importance has been recognised by the European Court of Human Rights which treats reputation as a protected interest under Article 8 ECHR. Harm to reputation can be debilitating and perpetuating. Should such harm be caused by the circulation of falsehoods, society has an interest in facilitating redress. Reputation, as Lord Nicholls explained in Reynolds v Times Newspapers, does matter, and not merely for its service to the individual concerned:
‘Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfoun- ded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vin- dicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad.’
In light of this, it is important to acknowledge that the creation of a ‘chilling effect’ on freedom of expression is precisely the purpose of libel law. It prevents unwarranted injury to reputation by means of incautious speech.
Any well-structured law must account for the competing interests at stake. The chilling effect of libel is undesirable only to the extent that it causes true and important information to be withheld from the public sphere. Change the law by all means, but do not do so on the basis of only a partial understanding of the existing law or with an unhealthy bias towards freedom of expression.
As to specific proposals, time prevents me dealing with them in any great detail. Suffice to say, some I would support unequivocally (for example, greater freedom of information). Others, however, deserve much greater scrutiny.
Both the IMMI proposals and the Pen /Index on Censorship report critique English law for the laxity of its jurisdictional rules that encourage the phenomenon of so-called ‘libel-tourism’. This was characterised by Lord Pannick in House of Lords debate as the bringing of proceedings ‘by people who have no connection to this country against publishers who are based abroad, such proceedings being founded on the incidental publication in this country of a few copies of a newspaper, book or magazine published abroad.’ The authors of the Index / PEN report propose changes to the existing laws to tighten up the position while IMMI suggests introducting legislation similar to that adopted by some states in the US to block the enforcement of English libel judgments.
I appreciate the rhetorical strength of the observation that some foreign claimants choose to sue in London and not in their home jurisdictions. The implication that the regime in this country is draconian is obvious. On analysis, however, I am not persuaded that the British rules on jurisdiction that are said to permit libel-tourism are in themselves at all problematic.
Contrary to the rules sometimes posited, the British courts in fact require the claimant to demonstrate, first, that he or she does possess a reputation in this jurisdiction, and secondly that defamatory publication has occurred here. Any damages recovered will relate only to the harm caused to the reputation held in this jurisdiction. The courts have a discretion to strike out a claim as an abuse of process where no ‘real and substantial tort’ has been committed. This is not mere puffery; the discretion has been exercised in a number of recent cases.
Admittedly, under these rules jurisdiction is assumed more readily than would be deemed appropriate by some. In terms of damage to reputation, however, what often matters is not the extent of publication, but rather who is reading material at a given time. ‘whether there has been a real and substantial tort… cannot depend [solely] upon a numbers game.’ The Index / Pen report proposes that libel cases should be heard in this jurisdiction only if it can be shown that at least 10 per cent of the total number of copies of the publication distributed have been circulated here. They also propose that statements made on foreign internet sites should be actionable only when they are advertised or promoted here by the publisher. To my mind, such rules would be entirely arbitrary and unprincipled. They would result in obvious injustices, and would envision the legitimisation of the wanton traducing of individual reputations.
At its most basic level, therefore, I am comfortable with the phenomenon of libel tourism. It reflects a divergence of view as to the priorities to be afforded to freedom of expression on one hand, and competing interests such as those in privacy and reputation on the other. Americans are free to choose free speech absolutism; I remain content to be more balanced in my estimation of the relative importance of competing interests.
Public Interest Defence and Responsible Journalism
There is much in the IMMI report and Index / PEN report about the importance of freedom of expression in relation to matters of public interest. To protect journalism on matters of public interest the Index / PEN report recommends a public interest defence. Few would disagree with such a defence (and there is in fact one already in English law) even though it is of course open to the immediate criticism that it may lead to the sacrifice of individual reputations on the altar of the greater public good. It is only through vigorous public debate and engagement with controversial matters that the truth is likely to be revealed. However, beyond proof that the subject matter of the publication is in the public interest what conditions should be met before a defendant can rely on the defence. Here we have a stark choice; do as the Americans do and allow a defence where the writer honestly believes that what they publish is true or require, as English law currently does, proof by the defendant that he acted responsibly. You will not be surprised to know that my view is that we should stick with the existing English law position. Basing the defence merely on the journalist’s honest belief as to truth would be a recipe for sloppy journalism in which there would be no incentive for initial, seemingly persuasive sources and indications to be further checked. The existing defence requires the journalist to have validated his or her faith in the story by engaging in reasonable journalistic practice. This seems the more appropriate standard when what is contemplated is the exoneration from liability for misinforming the public and damaging without justification another person’s reputation.
Protecting publication on the Internet
Both the IMMI proposals and the Pen / Index report call for greater protection to be given to those who publish on the internet particularly singling out those who act as conduits of information or facilitators such as Google and other search engine providers. It is of course the case that the information society, in its various manifestations has brought huge benefits to society. These should not be undervalued and any law must take account both of what the Internet has brought and what it may bring in the future. Thus, there has been a huge growth and advance in the availability of educational and informational resources. Information providers now offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. On a political, social and cultural level, the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. As a consequence, people everywhere are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
It is certainly the case that many jurisdictions have already afforded extensive protection to internet publishers. There is a European Directive that accords immunity to information society services that act as mere conduits, cache information and in more restricted circumstances store information for the purposes of allowing others access. In English law, it has been said that Google and other web-search engines are not liable for defamatory material contained in the search snippets automatically generated by their search programmes. While, in principle, I believe that most of the existing restrictions placed on suing internet publishers are justified, I would not be supportive of proposals to make the internet a law free zone. The fact is that, while there is considerable responsible publishing on the internet, it in many respects operates as a large lavatory wall allowing the disgruntled, angry and deliberately deceitful to publish what frequently amounts to appallingly damaging and hurtful material. ISP’s derive a great deal of profit from providing this and they should not, in my view, be given, as in the United States, a completely free pass, where they allow such material to be published.
Source and whistle-blower protection
Finally, in principle, I would be strongly supportive of according protection to confidential sources and those who have been shown to have acted in the public interest by ‘whistle-blowing’. As Roy Greeslade has commented ‘Journalism as we know it could not survive if there were no off-the-record briefings. News pages would be full (well, fuller) of public-relations pap and the stilted prose of uninformative, on-the-record quotes. Revelatory stories would cease to exist. Unattributable conversations between journalists and their sources are the lifeblood of our papers. That said, source protection should only be accorded where both the journalist and source behave properly. Journalists must not take advantage of the anonymity of their sources by exaggerating what they have been told. Similarly, sources cannot expect to be treated well if they use the mask of anonymity to tell untruths. English law has several examples in recent years of cases in which dishonest sources have been allowed, as a consequence of source protection rules, to mislead the court with consequential damage to the machinery of justice. Into any source protection regime, therefore, must be built provisions requiring judges to examine carefully any claim to source protection. Where a court is not persuaded that the source and / or journalist had acted honestly it should not hesitate to refuse to accord protection.
There are other matters that I could discuss, not least question of immunity for archives, no prior restraint and such matters, but I am conscious that my time to speak has come to an end. I hope I have persuaded you that the current calls for reform should be examined critically and importantly that other interests should not be ignored when seeking to frame new rules: freedom of expression is not the only important right at stake. If we are to have reform, so be it, but let us be clear on what we want to achieve and why, let the reform be based on a proper understanding of the law and its effects, and whether such reform truly benefits the public in general.
There is a video of the whole session, with Professor Mullis at 1 hour 25 minutes.
Alastair Mullis is a Professor of Law at the University of East Anglia, and (with Andrew Scott) the joint author of the paper “Something Rotten in the State of English Libel Law?”