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Defamation and freedom of reporting

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Introduction

The concept of democracy implies that every citizen has an interest in freedom of speech, expression and reporting. However these freedoms have not been accorded the status of a 'primary right' that takes precedence over potentially conflicting rights and interests in English law.1) Rather, they must be weighed against other considerations, such as the protection of reputation and the right to a fair trial. In striking a balance, English law has traditionally shown a preference for protecting reputation rights over free reporting.2)

In the United Kingdom, personal reputation is protected by the tortious action of defamation, the product of both statute and case law. A related action, although still of somewhat limited significance, is that of malicious falsehood. Defamation is defined as publishing to a third person words containing an untrue imputation against the reputation of another and tending to lower the plaintiff in the estimation of right-thinking members of society, exposing him to hatred, ridicule or contempt, or causing him to be shunned or avoided.

It's important to note that a true imputation may be defamatory and that an imputation is not necessarily defamatory where it is untrue. The law in the Defamation Act 1952 was significantly affected by the 1996 Defamation Act. This Act introduced changes to the limitation period, qualified and absolute privilege, a new summary procedure, and 'offer of amends' and 'responsibility for publication' defences.3)

There are two forms of defamation in English law: libel and slander, which may be differentiated according to the degree of permanence. Slander is a different form of defamation in a transient form such as the written word and requires proof of special or quantifiable damages, subject to limited exceptions. Newspapers are concerned with libel actions in a permanent form, involving defamatory printed matter. Libel is actionable per se and is a crime4) as well as a tort. The threat of a libel action is arguably the single most inhibiting factor to media freedom in the United Kingdom.5)

The aims here, drawing on statute and case law, are to question the assertion that the law of defamation is a real limitation to freedom of reporting, and evaluate the contention that in reality all the law requires is that reporting be truthful.

How limiting?

Defamation law has 'long been characterised by a surfeit of technicality, complexity and the absurd',6) but the development of the mass media and the newspaper industry has seemingly exposed its inadequacies most acutely. The law's failure to 'recognise the vital role of the media in supplying information and facilitating discussion for a modern democracy',7) in addition to its inhibiting effect on free speech and consequential freedom of reporting, is a central concern. In order to assess any limitations on freedom of reporting it's necessary to take account of the nature of the law and then apply the principles developed from cases and legislation.

Once communicated to a third party, a person is liable for any publication which he intends, can reasonably anticipate or, where there is unintentional publication, which is published due to a want of care on his part. However, the commercial publishing process will 'necessarily involve a series of publications with each publication creating a separate cause of action'. This may therefore involve the editor, sub-editor, printer, distributor and retail seller. The potential for libel actions from the outset is thereby formidable.

The words used must be capable of defamatory meaning to the mind of the 'ordinary, reasonable and fair-minded reader'.8) The plaintiff may also plead in some cases that the words are defamatory in the light of certain additional facts, known as 'legal' innuendo; a separate cause of action for which separate damages should be awarded.9) The case of Tolley v Fry & Sons Ltd10) serves as an example of pleading for both actions. The House of Lords held '…in the present case the matter complained of, regarded in vacuo, was innocent, but by reason of the circumstances in which it was published, it was capable of a defamatory meaning…11) A newspaper publishing an article must therefore consider circumstances which are not immediately evident if at all, and additional time, effort and money may be required to ensure no threat of a libel action.

The plaintiff must show that the words were published of and concerning him. Despite the straightforward appearance of this rule, it has thrown up various contentious cases involving initially innocent publications. In Hulton v Jones12) the words used were taken to refer to the plaintiff mentioned by name even where the defendant newspaper did not know the plaintiff. Liability may also arise on the part of the defendant where the statement is true of one person but defamatory of another with the same name. Newstead v London Express Newspapers13) indicates the great care which must be taken by journalists when reporting criminal court proceedings. The plaintiff, with the same name as that in the defendant's article, was successful in his libel action. The 'narrower the class and the more specific the allegation', the likelier it is that an 'ordinary, reasonable and fair-minded' reader could take it to refer to each member of the group, necessitating care by the publisher.14)

The defences to a defamation action, with a 'suitable defence to any potential action',15) also provide strong cases for argument. The main defences regarding limitations on freedom of reporting are justification (truth) and fair comment on a matter of public interest.16)

Justification is a complete defence. Once a statement is shown to be defamatory there is a presumption that the statement is not true, shifting the burden of proof to the defendant. He must prove by evidence the [substantial] truth of each defamatory statement, any reasonable interpretation and any innuendoes lying behind them. The frequent difficulty of this task often results in the defendant having to back down, despite a belief in the truth of the statement. Substantial libel damages may thus be attained even where the statement published is true. An unsuccessful plea of justification will also exacerbate any damages awarded. Defendants are required to state the ' Lucas-Box Particulars',17) or the precise meaning to be attributed to the words they are seeking to justify in the particulars of their justification defence, presumably before being precisely informed of the plaintiff’s evidence.

Fair comment attempts to ensure, as a necessary element of a free and democratic society, that one can comment freely where the matter is in the public interest. The courts will generally uphold such comment provided it arises from an honestly held belief and is not made maliciously. It is on this defence that newspapers rely most heavily, although its complex nature results in a 'potential minefield'18) for the industry and their legal advisers. The defence will attach to the comment when in the form of opinion, not fact. This distinction is often difficult to make as a set of words may be comment in one context with the possibility of the defence being available, and fact in another when it must be justified. As Gateley pointed out, the cases give no clear definition as to what comment is. 'If a statement appears to be one of opinion or conclusion, it is capable of being comment'.19) As a rule, the comment must be based on true facts,20) but this area leads to much confusion and resulting large legal fees attempting to pursue avenues of defence.

If the words complained of were published maliciously by the defendant, the defence will not be available.21) Resultantly the defence will customarily hit upon an allegation of malice, increasing the number of issues in the action. On discovery, all relevant documentation concerning the article must be produced; a disadvantage for the newspaper industry which must consider the nature of relevant documentation in existence at that time before actioning the defence.

From a different angle, a more significant inadequacy of defamation law is the insensitivity to the way that information is communicated and the uses to which it is put, especially by newspaper readers. There is an assumption by the law that reputations simply exist, that the media have an effect on them and that the result is negative. There is 'no recognition of the part played by the media in creating public images nor of the relationship between those images and the social relationships of real people'. From the media’s defendant perspective, the law imposes a heavy burden. If this burden cannot be discharged, cases22)) indicate that the plaintiff may receive huge compensation in damages from libel juries, (despite the Court of Appeal decision and guidelines to refer juries towards the scales in personal injury cases and 'approved' libel cases).23) There is no legal aid to finance an action, favouring the wealthy who can effectively frighten people away from reporting or at least buy themselves some time to strengthen their case.24) Juries themselves typically find it easy to give away money belonging to media defendants who are perceived as able to afford it.25)

Although the summary procedure26) of the 1996 Act was hailed as its most significant feature, there were fears that instead of streamlining, the provision discredits the courts and threaten freedom of speech. James Price QC said that '…procedure affords plaintiffs an opportunity to “mug” media defendants'.27) These examples serve to illustrate the problem with a tortious action which is dependant on the truth, yet finds ways to uphold or dismiss an application for libel on the grounds of 'reputation'.

How free?

If the law of defamation creates so many problems regarding freedom of reporting, why does it remain the crucial means of redress for those feeling aggrieved with this arm of the media? Despite all that can be said in defence of the limitations, newspapers in the United Kingdom have continued to enjoy significant freedom in their reporting. The plaintiff's position is often no more satisfactory than the defendant, as sufficient money remains at stake for the industry to have an incentive to mount sophisticated defences, complicating the issues. In addition, any litigation extends publicity to the offending words and to the whole lifestyle and privacy of the plaintiff. Unless the plaintiff enjoys considerable wealth, the costs of an libel action remain a huge barricade with lengthy trials and expensive legal representation.28) The 'award of damages to a successful plaintiff may be illusory should it need to be used to pay costs' 29) The litigation process may often be avoided, dictated by commercial prudence, and major costs saved by settling out of court.

Charleston and Another v News Group Newspapers Ltd and Another30) illustrated that the defamatory test is the impact of the total piece as a totality. The House of Lords admitted their reluctancy to reach this decision as it was clear that the plaintiffs had genuine grounds for complaint. This allows the defendant some room to bend the truth in the knowledge that a clear body of law establishes the test.

In Lewis v Daily Telegraph,31) Lord Reid gave guidance on the consideration of the meaning of words, 'One must try to envisage people between these two extremes [of 'unusually suspicious' and 'unusually naive'] and see what is the most damaging meaning that they would put on the words in question'.32) This tends to favour a more liberal reporting policy. The innuendo action also favours reporting freedom in some respects. True innuendo must be specifically pleaded, with the 'particulars of the facts and matters' on which the plaintiff is relying given in support, thereby eliminating at first instance anything not initially submitted; provided by Rules of the Supreme Court Ord 82, r3.

Section 5 of the Defamation Act 1952 mitigates the harshness of the 'proving every allegation to succeed in the defence of justification' rule,33) enabling newspaper defendants to justify where the defamatory material is of a 'less serious' or 'comparatively minor' nature. The infamous McLibel case34) added that a defendant could quite properly plead particulars of justification when in anticipation of being able to prove at the trial date, giving more time to gather admissible evidence.

Addressing the fair comment defence, Telnikoff v Matusevitch,35) concerning a defamatory letter sent in reply to a controversial newspaper article, held that as many readers would only have seen the letter it should be judged on its own merits. In an article containing factual material and comment, the defendant must generally prove the substantial truth of the facts on which the comment has been made; s.6 Defamation Act 1952.

The debate surrounding libel's so-called chilling effect, or 'the threat of a civil action for defamation inhibiting freedom of speech and resulting in damaging self-censorship by the media to the impoverishment of political discourse', led to the House accordingly creating an absolute immunity to criticise the corporate reputation of government bodies where it concerns a matter of public interest in Derbyshire C.C. v Times Newspapers Ltd,36) Changing the previous common law tradition, Reynolds v Times Newspapers Ltd37) built on this decision and confirmed the constitutional significance of political or public interest speech and the special character of public relations, giving the press a rather free reign in such reporting, regardless of the total truth or honesty, and creating a new and potentially radical version of the qualified privilege defence.

Freedom necessarily involves some discretion where an innocent publication unintentionally injures a reputation and the 'offer of amends' defence may fulfil this requirement if a prompt correction and apology are not sufficient.

Reform?

Richard Shilito38) suggested a different basis for legal protection of interests connected with reputation. He pointed to reputation as the crux of the debate over freedom of speech and reporting, and argued that the assumption that reputation should be protected is unfounded. A modified basis for liability: a remedy for 'unsubstantiated allegations', a form of declaratory relief, would deal with the important concern that individuals should not be judged by false information. Harm to reputation as such would not be compensated, but some limited provision for damages, relatively small sums, could be made 'to mark the insulting nature of an unfounded allegation'. The normal ways of enforcing rulings through contempt of court could be invoked to prevent newspapers repeating false rumours expecting impunity. Procedurally it would be a speedy, relatively informal means of redress which could be incorporated into the regulatory schemes dealing with the press.

Conclusion

London is often described as the libel capital of the world but English law recognises that some room for manoeuvre is essential if freedom of reporting is to become a significant reality. Currently the potential size of readership largely determines resources to defend an action in defamation as does sheer wealth regarding the plaintiff, with the nature of jury trials constituting a gamble for both parties, 'given an emphasis on the meaning of language and the demeanour of witnesses'.

There are difficulties surrounding the issue of truth and that an imputation may be defamatory even where untrue or may not necessarily be defamatory where it is untrue. Any notion that all defamation requires is that reporting be truthful is very difficult to substantiate due to the manipulative power of a law that views reputation as the basis, and deserving, of legal protection. Members of the defamation audience are hypothetical and thereby invoking an 'objectified standard of values' for impact assessments. Grievances often arise simply because challenges to a public image are made without due cause. As Shilito concluded, there may be sensible and realistic alternatives to this assumption; a remedy for 'unsubstantiated allegation' for example could fare well.

Newspapers and the wider media hold a vast amount of power39) over a public often blissfully unaware. Although many factors are strongly debatable, precedents are and will continue to be set in an area of law which requires reform. The effect of such reform suggested by Shilito may be to simplify, and at the same time make more effective, current efforts to respond to the use and control by the media of 'non-private, personal information'. The remedy suggested would be likely to be more media friendly, and perhaps then we could reach a stage where the basic obligation would be that reporting be truthful.

References

Shilito, R (1997) New Defamation Act could backfire, NLJ Jan. 10


Law

1) Barendt, E Freedom of Speech (1989), Oxford: Clarendon Press
2) Williams, K Re-Regulating Free Speech: Privilege, Public Interest and Privacy [1999] 1 Web JCLI
3) To replace the previous 'innocent dissemination' defence.
4) See Gleaves v Deakin [1980] AC 477. Only the subject of a prosecution when extremely serious and when the public interest requires criminal proceedings to be initiated.
5) Carey, P and Verow, R Media and Entertainment Law (1999) (Jordans-LPC series) p.69
6) Gibbons, T Defamation Reconsidered (1996) OJLS Vol. 16, No 4 587
7) Ibid.
8) per Lord Bridge in the Charleston and Another v News Group Newspapers Ltd and Another (1995) The Times, March 31 - The natural and ordinary meaning.
9) Where the words under action are defamatory in their natural and ordinary meaning and in the light of certain specified facts, the plaintiff would plead two separate defamation actions.
10) [1931] All ER Rep. 131
11) Lord Blanesburgh dissenting.
12) [1910] All ER Rep. 29
13) [1940] 1 KB 377
14) See Aiken and others v Police Review Publishing Co. Ltd (unreported) 12 April 1995 (CA) as an example.
15) See no.8 p.74
16) Proof of 'malicious' action by the defendant may defeat the defence. Not justification, except where provided by the Rehabilitation of Offenders Act 1974.
17) Since Lucas-Box v News Group Newspapers [1986] 1 WLR 147
18) See no.8 p.76
19) Gately on Libel and Slander 8th edition, p.696
20) There is an exception where the untrue facts are stated by someone on a privileged occasion.
21) See Thomas v Bradbury, Agnew & Co. Ltd [1906] 2 KB 627 for further discussion.
22) For example £1,000,000 libel damages in Walker Wingsail Systems v Yachting World, Andrew Bray and IPC Magazines (July 1994
23) John v MGN Ltd [1996] 2 All ER 35, decisions for straightforward gossip stories will be substantially lower.
24) Effectively 'muzzling the truth'.
25) See no.8 p.83
26) Summary relief involves, generally, damages not exceeding £10,000.
27) Shilito, R New Defamation Act could backfire NLJ Jan. 10 1997
28) Legal aid is available for the 'malicious falsehood' action, but this is seldom a realistic alternative to a defamation action.
29) See no.9 p.588
30) (1995) The Times, March 31.
31) [1963] 2 All ER 151
32) See Hartt v Newspaper Publishing Plc (unreported) 26 October 1989, CA. for further discussion.
33) …'justification shall not fail…if the words not proved to be true do not materially injure the plaintiff's reputation, having regard to the truth of the remaining charges.'
34) McDonald’s Corporation v Steele and Another (1994) The Times, April 14 (CA).
35) [1991] 4 All ER 817
36) [1993] AC 531, and see also Goldsmith v Bhoyrul [1997] 2 W.L.R.435
37) [1998] 3 W.L.R. 862
38) See no.34
39) esp. regarding 'public interest' matters, following Reynolds.

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