English defamation law
Encyclopedia
Modern libel and slander laws, as implemented in many (but not all) Commonwealth
nations as well as in the United States
and in the Republic of Ireland
, are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as the reign of Edward I
(1272–1307), though it is unknown whether any generally applicable criminal process was in place. The first fully reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I
. From that time, we find both the criminal and civil remedies in full operation.
English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. Allowable defences are justification (i.e. the truth of the statement), fair comment (i.e. whether the statement was a view that a reasonable person could have held), and privilege (i.e. whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false, unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not exercising due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.
nations as well as in the United States
and in the Republic of Ireland
, are originally descended from English defamation law.
The earlier history of the English law of defamation is somewhat obscure; civil actions for damages seem to have been tolerably frequent as far back as the reign of Edward I
(1272–1307). There was no distinction drawn between written and spoken words, and when no pecuniary penalty was involved, such cases fell within the old jurisdiction of the ecclesiastical court
s, which were only finally abolished in the eighteenth century. It seems uncertain (to say the least) whether or not any generally applicable criminal process was in place.
The crime of scandalum magnatum (spreading false reports about the magnates of the realm) was established by statutes, but the first fully reported case in which libel is affirmed generally to be punishable at common law is one tried in the Star Chamber
in the reign of James I
. In that particular case, no English authorities are cited, except for a previous case of the same nature before the same tribunal; the law and terminology appear to be taken directly from Roman sources, with the insertion that libels tended to cause a breach of the peace, and it seems probable that a not-too-scrupulous tribunal had simply found it convenient to adopt the very stringent Roman provisions regarding the libelli famosi without paying any regard to the Roman limitations. From that time, we find both the criminal and civil remedies in full operation.
Volume of litigation
An increase in defamation litigation has been noted in England from the early seventeenth century. In the south of England, this litigation rose most sharply in cases of sexual slander and were notable for the increasing number of women pursuing litigation in defence of their sexual reputation. In one respect, this pattern has been linked with increasing legal access for women. In another respect, however, it has been linked to the rise of 'middling' traders in urban centres and an increasing concern with the defence of family reputation in which a woman's sexual integrity was coterminous with the integrity of her household. A similar pattern has been noted in the northern English jurisdictions but this rise seems not to have occurred until the latter years of the seventeenth century.
, a libel was the equivalent of a civil lawsuit
. The plaintiff was referred to as the "libellant"; the verb "to libel" means "to sue [in admiralty]". Similar terminology was used in the United States
legal system. The term has been rendered obsolete by the merger of the admiralty courts with tribunals of general jurisdiction, and the adoption of simplified rules of civil procedure
which specify "one form of action" for all claims.
A statement can include an implication; for instance, a photograph of Tony Blair
accompanying a headline reading "Corrupt Politicians" could be held as an allegation that Tony Blair was personally corrupt. Once it is shown that a statement was published, and that it has a defamatory meaning, that statement is presumed to be false unless the defendant is able to raise a defence to his defamatory act.
The 2006 case of Keith-Smith v Williams
confirmed that discussions on the Internet were public enough for libel to take place.
Restaurants sued David Morris and Helen Steel (known as the 'McLibel Two') for libel. The original case lasted seven years, making it the longest-running court action in English history. Beginning in 1986, London Greenpeace, a small environmental campaigning group, distributed a pamphlet entitled What’s wrong with McDonald’s: Everything they don’t want you to know. The pamphlet claimed that the McDonald's corporation sold unhealthy food, exploited its work force, practiced unethical marketing of its products towards children, was cruel to animals, needlessly used up resources and created pollution with its packaging and also was responsible for destroying the South American rain forests. Although McDonald's won two hearings, the widespread public opinion against them turned the case into a matter of embarrassment for the company. McDonald's announced that it has no plans to collect the £40,000 it was awarded by the courts, and offered to pay the defendants to drop the case.
Steel and Morris in turn sued the UK government in the European Court of Human Rights
, asserting that their rights to free speech and a fair trial had been infringed. Their most important claims were that English libel law was unfair to defendants, that it was unfair to require two people of modest means to defend themselves against a large company without legal aid
, and that the damages were not justified. The court found partly in their favour, and ruled that:
In short, the lack of legal aid made the trial unfair; the unfair trial and the excessive damages had denied the defendants' freedom of expression. The court did uphold most features of English libel law it considered, particularly the burden of proof.
wrote an article in The Guardian
which resulted in him being sued for libel by the British Chiropractic Association
. The suit was dropped by the BCA on 15 April 2010
Some commentators have suggested this ruling could set a precedent to restrict freedom of speech
to criticise alternative medicine
.
The Wall Street Journal Europe
has cited the case as an example of how British libel law "chills free speech", commenting that:
The charity Sense About Science
has launched a campaign to draw attention to the case. They have issued a statement entitled "The law has no place in scientific disputes", which has been signed by myriad signers representing science, journalism, publishing, arts, humanities, entertainment, skeptics, campaign groups and law. As of March 31, 2011, over 56,000 have signed. Many press sources have covered the issue.
Where the words contain more than one charge
In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved 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.
Spent convictions
Section 8(3) of the Rehabilitation of Offenders Act 1974
provides that nothing in section 4(1) of that Act prevents the defendant in any action for libel or slander begun after the commencement of that Act by a rehabilitated person, and founded upon the publication of any matter imputing that the plaintiff has committed or been charged with or prosecuted for or convicted of or sentenced for an offence which was the subject of a spent conviction, from relying on any defence of justification which is available to him, or restrict the matters he may establish in support of any such defence.
But a defendant in any such action is not, by virtue of the said section 8(3), entitled to rely upon the defence of justification if the publication is proved to have been made with malice
.
The fair comment defence is sometimes known as the critics defence as it is designed to protect the rights of the press to state valid opinions on matters of public interest such as governmental activity, political debate, public figures and general affairs. And secondly it defends comments on works of art in the public eye such as theatre productions, music and literature. However fair comment and justification defences will fail if they are based on misstatements of fact. An example of this:
London Artists LTD V Littler 1969-when a whole group of actors resigned from a play the director wrote a letter to each of them and also their agent company from where they had all come, accusing them of plotting against him. The case was decided to be a matter of public concern because of the general interest in entertainment.
For an opinion to be fair comment it must be based around true facts highlighted by: Kemsley v Foot (1952)
A journalist had printed an article in a newspaper condemning the evening standard for unethically publishing a certain story. Kemsley didn’t own the Evening Standard but he did own another newspaper. The headline of the article was “lower than Kemsley” which was a journalistic attack on the standards of the Kemsley press. The defence of fair comment was allowed to stand regardless of the standards of the Kemsley press purely because he did own a newspaper, demonstrating how easy it is to satisfy the sufficient factual content.
There is also no need for the perpetrator of the comment to actually believe in it as in court the comment will be measured according to an ‘objective’ test. In a case Telnikoff v Matusevitch 1992
Telnikoff wrote an article in the daily telegraph criticizing the BBC Russian service for over-recruiting people from ethnic minority groups. Matusevitch replied accusing the claimant of being a racist. The house of lords felt that he had to show that the comment was based around the article, which would make it fair comment as it was possible most people wouldn’t know why he was making such a statement.
And of course a defence can always be defeated if the defendant shows malice, as in the case : Thomas v Bradbury, Agnew & co 1906 the defendant not only criticised the claimants book but also made many personal slurs against the author destroying the defence.
The defence has seen expansion recently in light of Reynolds v Times Newspapers Ltd, where the House of Lords
- drawing principally on Lord Nicholls' judgement - established that the mass media could be entitled to the defence, where criteria of 'responsible journalism' (further expanded upon in Loutchansky v Times Newspapers Ltd) were met. This expansion was confirmed in the case of Jameel v Wall Street Journal Europe
, and has been described as giving newspapers protections similar to the US First Amendment.
See section 15 of, and Schedule 1 to, the Defamation Act 1996
.
In the case of a Private Members' Forum where like minded people post accounts the Administrators, WebHosts and Moderators can not be held accountable due to being published in a limited form only visible to those like minded members. The general public have no access so no right to see any comments so unable to make a claim.
and the Libel Act 1845. This defence has fallen into disuse. In 1975, the Faulks Committee recommended that it be abolished.
.
, the law of defamation has been subject to pressure for reform from two particular provisions of the European Convention on Human Rights
: Article 10 ECHR
guarantees freedom of expression, while Article 8 ECHR
guarantees a right to respect for privacy and family life. The question is therefore whether the law of defamation strikes the appropriate balance between allowing, for instance, newspapers sufficient freedom to engage in journalistic activity, and on the other hand, private citizens to not suffer unwarranted intrusion.
An independent tort protecting privacy has been rejected in a number of cases, including Kaye v Robertson
in the Court of Appeal
and again recently in the House of Lords
in Wainwright v Home Office.
initiated and won a record £1.5million (plus £500,000 costs) in a libel case against Count Nikolai Tolstoy
-Miloslavsky and Nigel Watts, who had accused him of war crimes in Austria during his involvement in the Betrayal of the Cossacks
at Lienz
, at the end of the Second World War. This award, which bankrupted Tolstoy, was overturned by the European Court of Human Rights
in July 1995 as "not necessary in a democratic society" and a violation of Tolstoy's right to freedom of expression under Article 10 of the European Convention on Human Rights
.
This judgement significantly reduced the level of subsequent libel awards.
7536). This was partly implemented by the Defamation Act 1952
.
See also "Defamation Defamed" (1971) 115 Sol Jo
357.
launched their report into English libel law entitled 'Free Speech Is Not For Sale'. The report was highly critical of English libel law and the 'chilling' effect it has on free expression globally. The report made 10 recommendations on how English libel law could be improved; including reversing the burden of proof, capping damages at £10,000, introducing a single publication rule, and establishing libel tribunals (to reduce costs).
In January 2011, Deputy Prime Minister
Nick Clegg
said that he was committed to introducing legislation that would turn "English libel laws from an international laughing stock to an international blueprint".
On 15th March 2011, a “Draft Defamation Bill” (CP3/11) was published by the Ministry of Justice with an accompanying “consultation paper containing provisions for reforming the law to strike the right balance between protection of freedom of speech and protection of reputation.” (Close date: 15 June 2011)
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
nations as well as in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as the reign of Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
(1272–1307), though it is unknown whether any generally applicable criminal process was in place. The first fully reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
. From that time, we find both the criminal and civil remedies in full operation.
English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. Allowable defences are justification (i.e. the truth of the statement), fair comment (i.e. whether the statement was a view that a reasonable person could have held), and privilege (i.e. whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false, unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not exercising due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.
History
Modern libel and slander laws as implemented in many (but not all) CommonwealthCommonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
nations as well as in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, are originally descended from English defamation law.
The earlier history of the English law of defamation is somewhat obscure; civil actions for damages seem to have been tolerably frequent as far back as the reign of Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
(1272–1307). There was no distinction drawn between written and spoken words, and when no pecuniary penalty was involved, such cases fell within the old jurisdiction of the ecclesiastical court
Ecclesiastical court
An ecclesiastical court is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages in many areas of Europe these courts had much wider powers than before the development of nation states...
s, which were only finally abolished in the eighteenth century. It seems uncertain (to say the least) whether or not any generally applicable criminal process was in place.
The crime of scandalum magnatum (spreading false reports about the magnates of the realm) was established by statutes, but the first fully reported case in which libel is affirmed generally to be punishable at common law is one tried in the Star Chamber
Star Chamber
The Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
in the reign of James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
. In that particular case, no English authorities are cited, except for a previous case of the same nature before the same tribunal; the law and terminology appear to be taken directly from Roman sources, with the insertion that libels tended to cause a breach of the peace, and it seems probable that a not-too-scrupulous tribunal had simply found it convenient to adopt the very stringent Roman provisions regarding the libelli famosi without paying any regard to the Roman limitations. From that time, we find both the criminal and civil remedies in full operation.
Volume of litigation
An increase in defamation litigation has been noted in England from the early seventeenth century. In the south of England, this litigation rose most sharply in cases of sexual slander and were notable for the increasing number of women pursuing litigation in defence of their sexual reputation. In one respect, this pattern has been linked with increasing legal access for women. In another respect, however, it has been linked to the rise of 'middling' traders in urban centres and an increasing concern with the defence of family reputation in which a woman's sexual integrity was coterminous with the integrity of her household. A similar pattern has been noted in the northern English jurisdictions but this rise seems not to have occurred until the latter years of the seventeenth century.
English admiralty law
In admiralty lawAdmiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
, a libel was the equivalent of a civil lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
. The plaintiff was referred to as the "libellant"; the verb "to libel" means "to sue [in admiralty]". Similar terminology was used in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal system. The term has been rendered obsolete by the merger of the admiralty courts with tribunals of general jurisdiction, and the adoption of simplified rules of civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
which specify "one form of action" for all claims.
Modern law
English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. .A statement can include an implication; for instance, a photograph of Tony Blair
Tony Blair
Anthony Charles Lynton Blair is a former British Labour Party politician who served as the Prime Minister of the United Kingdom from 2 May 1997 to 27 June 2007. He was the Member of Parliament for Sedgefield from 1983 to 2007 and Leader of the Labour Party from 1994 to 2007...
accompanying a headline reading "Corrupt Politicians" could be held as an allegation that Tony Blair was personally corrupt. Once it is shown that a statement was published, and that it has a defamatory meaning, that statement is presumed to be false unless the defendant is able to raise a defence to his defamatory act.
The 2006 case of Keith-Smith v Williams
Keith-Smith v Williams
Keith-Smith v Williams is a 2006 English libel case that confirmed that existing libel laws applied to internet discussion.It was seen as important because it was seen as the first UK internet libel case that represented two individuals rather than one party being an Internet Service Provider, and...
confirmed that discussions on the Internet were public enough for libel to take place.
Slander actionable per se
The following are actionable without proof of special damage/actual damage:- Words imputing a crime punishable with imprisonment
- Words imputing certain diseases
- Words disparaging a person in his office, calling or profession, see section 2 of the Defamation Act 1952Defamation Act 1952The Defamation Act 1952 is an Act of the Parliament of the United Kingdom.This Act implemented recommendations contained in the Report of the Porter Committee...
. Also at common law. - Words imputing unchastity or adultery to a female, see the Slander of Women Act 1891Slander of Women Act 1891The Slander of Women Act 1891 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland .-Slander imputing unchastity or adultery to a female is actionable per se:...
Burden of proof on the defendant
In most legal systems, the courts give the benefit of the doubt to the defendant. In criminal law, he or she is presumed innocent until the prosecution can prove guilt beyond a reasonable doubt; whereas in civil law, he or she is presumed innocent until the plaintiff can show liability on a balance of probabilities. However, the common law of libel reverses the traditional positions somewhat: a defamatory statement is presumed to be false, unless the defendant can prove its truth. One could suggest that this amounts to a presumption of the innocence of the plaintiff in the face of an accusation levelled by the defendant. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not exercising due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice. The definition of "public figure" has varied over the years.The 'McLibel' case
In 1990, McDonald'sMcDonald's
McDonald's Corporation is the world's largest chain of hamburger fast food restaurants, serving around 64 million customers daily in 119 countries. Headquartered in the United States, the company began in 1940 as a barbecue restaurant operated by the eponymous Richard and Maurice McDonald; in 1948...
Restaurants sued David Morris and Helen Steel (known as the 'McLibel Two') for libel. The original case lasted seven years, making it the longest-running court action in English history. Beginning in 1986, London Greenpeace, a small environmental campaigning group, distributed a pamphlet entitled What’s wrong with McDonald’s: Everything they don’t want you to know. The pamphlet claimed that the McDonald's corporation sold unhealthy food, exploited its work force, practiced unethical marketing of its products towards children, was cruel to animals, needlessly used up resources and created pollution with its packaging and also was responsible for destroying the South American rain forests. Although McDonald's won two hearings, the widespread public opinion against them turned the case into a matter of embarrassment for the company. McDonald's announced that it has no plans to collect the £40,000 it was awarded by the courts, and offered to pay the defendants to drop the case.
Steel and Morris in turn sued the UK government in the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
, asserting that their rights to free speech and a fair trial had been infringed. Their most important claims were that English libel law was unfair to defendants, that it was unfair to require two people of modest means to defend themselves against a large company without legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
, and that the damages were not justified. The court found partly in their favour, and ruled that:
- the denial of legal aid left Steel and Morris unable to defend themselves effectively
- pressure groups should be permitted to report in good faith on matters of public interest, as journalists are
- it was no defence that the pamphlet repeated claims already published, or that the defendants believed them to be true
- it was reasonable to require the defendants to prove their claims
- a large multinational corporation should be allowed to sue for defamation, and need not prove the allegations were false
- the damages were disproportionate, considering the defendants' income and that McDonald's did not have to prove any financial loss
In short, the lack of legal aid made the trial unfair; the unfair trial and the excessive damages had denied the defendants' freedom of expression. The court did uphold most features of English libel law it considered, particularly the burden of proof.
The Simon Singh case
On 19 April 2008, British author and journalist Simon SinghSimon Singh
Simon Lehna Singh, MBE is a British author who has specialised in writing about mathematical and scientific topics in an accessible manner....
wrote an article in The Guardian
The Guardian
The Guardian, formerly known as The Manchester Guardian , is a British national daily newspaper in the Berliner format...
which resulted in him being sued for libel by the British Chiropractic Association
British Chiropractic Association
The British Chiropractic Association was founded in 1925 and represents over 50% of UK chiropractors. It is the largest and longest established association for chiropractors in the United Kingdom...
. The suit was dropped by the BCA on 15 April 2010
Some commentators have suggested this ruling could set a precedent to restrict freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
to criticise alternative medicine
Alternative medicine
Alternative medicine is any healing practice, "that does not fall within the realm of conventional medicine." It is based on historical or cultural traditions, rather than on scientific evidence....
.
The Wall Street Journal Europe
The Wall Street Journal Europe
The Wall Street Journal Europe is a daily English-language newspaper that covers global and regional business news for Europe, the Middle East and Africa...
has cited the case as an example of how British libel law "chills free speech", commenting that:
- The U.S. Congress is considering a bill that would make British libel judgments unenforceable in the U.S. ... Mr. Singh is unlikely to be the last victim of Britain's libel laws. Settling scientific and political disputes through lawsuits, though, runs counter the very principles that have made Western progress possible. "The aim of science is not to open the door to infinite wisdom, but to set a limit to infinite error," Bertolt BrechtBertolt BrechtBertolt Brecht was a German poet, playwright, and theatre director.An influential theatre practitioner of the 20th century, Brecht made equally significant contributions to dramaturgy and theatrical production, the latter particularly through the seismic impact of the tours undertaken by the...
wrote in The Life of Galileo. ... It is time British politicians restrain the law so that wisdom prevails in the land, and not errors.
The charity Sense About Science
Sense About Science
Sense About Science is a British charity that promotes the public understanding of science. Sense About Science was conceived in 2002 by Lord Taverne, Bridget Ogilvie and others to promote respect for scientific evidence and good science. Sense About Science was established as a charitable trust in...
has launched a campaign to draw attention to the case. They have issued a statement entitled "The law has no place in scientific disputes", which has been signed by myriad signers representing science, journalism, publishing, arts, humanities, entertainment, skeptics, campaign groups and law. As of March 31, 2011, over 56,000 have signed. Many press sources have covered the issue.
Justification
A claim of defamation is defeated if the defendant proves that the statement was true. If the defence fails, a court may treat any material produced by the defence to substantiate it, and any ensuing media coverage, as factors aggravating the libel and increasing the damages. A statement quoting another person cannot be justified merely by proving that the other person had also made the statement: the substance of the allegation must be proved.Where the words contain more than one charge
In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved 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.
Spent convictions
Section 8(3) of the Rehabilitation of Offenders Act 1974
Rehabilitation of Offenders Act 1974
The Rehabilitation of Offenders Act 1974 of the UK Parliament enables some criminal convictions to be ignored after a rehabilitation period. Its purpose is that people do not have a lifelong blot on their records because of a relatively minor offence in their past. The rehabilitation period is...
provides that nothing in section 4(1) of that Act prevents the defendant in any action for libel or slander begun after the commencement of that Act by a rehabilitated person, and founded upon the publication of any matter imputing that the plaintiff has committed or been charged with or prosecuted for or convicted of or sentenced for an offence which was the subject of a spent conviction, from relying on any defence of justification which is available to him, or restrict the matters he may establish in support of any such defence.
But a defendant in any such action is not, by virtue of the said section 8(3), entitled to rely upon the defence of justification if the publication is proved to have been made with malice
Malice
Malice may refer to:* Malice , a legal term describing the intent to harm* Jerry Tuite , American professional wrestler also known by the ring name Malice-Entertainment:...
.
Fair comment
This defence arises if defendant shows that the statement was a view that a reasonable person could have held, even if they were motivated by dislike or hatred of the plaintiff.The fair comment defence is sometimes known as the critics defence as it is designed to protect the rights of the press to state valid opinions on matters of public interest such as governmental activity, political debate, public figures and general affairs. And secondly it defends comments on works of art in the public eye such as theatre productions, music and literature. However fair comment and justification defences will fail if they are based on misstatements of fact. An example of this:
London Artists LTD V Littler 1969-when a whole group of actors resigned from a play the director wrote a letter to each of them and also their agent company from where they had all come, accusing them of plotting against him. The case was decided to be a matter of public concern because of the general interest in entertainment.
For an opinion to be fair comment it must be based around true facts highlighted by: Kemsley v Foot (1952)
A journalist had printed an article in a newspaper condemning the evening standard for unethically publishing a certain story. Kemsley didn’t own the Evening Standard but he did own another newspaper. The headline of the article was “lower than Kemsley” which was a journalistic attack on the standards of the Kemsley press. The defence of fair comment was allowed to stand regardless of the standards of the Kemsley press purely because he did own a newspaper, demonstrating how easy it is to satisfy the sufficient factual content.
There is also no need for the perpetrator of the comment to actually believe in it as in court the comment will be measured according to an ‘objective’ test. In a case Telnikoff v Matusevitch 1992
Telnikoff wrote an article in the daily telegraph criticizing the BBC Russian service for over-recruiting people from ethnic minority groups. Matusevitch replied accusing the claimant of being a racist. The house of lords felt that he had to show that the comment was based around the article, which would make it fair comment as it was possible most people wouldn’t know why he was making such a statement.
And of course a defence can always be defeated if the defendant shows malice, as in the case : Thomas v Bradbury, Agnew & co 1906 the defendant not only criticised the claimants book but also made many personal slurs against the author destroying the defence.
Absolute privilege
If the defendant's comments were made in Parliament, or under oath in court of law, they are entitled to absolute privilege. This privilege is absolute: qualified privilege protects only the communication of the complained statement. There can be no investigation into whether remarks made in a situation of absolute privilege are defamatory.Qualified privilege
There are several situations where the defence of qualified privilege applies. Reports and remarks of Parliamentary proceedings, as well as reports of judicial proceedings attract qualified privilege. These have to be 'fair and accurate'; as Lord Denning stated in Associated Newspaper Ltd v Dingle, if the writer 'garnishes' and 'embellishes' such reports with any form of circumstantial evidence, the defence cannot apply. Additionally, where there is a mutual interest between two parties, statements deemed to be defamatory are protected where it can be proved there is a duty to impart them. The case of Watt v Longsdon exemplifies this principle, and the limitations of it. Here, the director of a company informed the chairman of alleged sexual misconduct involving Mr. Watt. This communication was deemed privilege, but the informing of such suspicion to the claimant's wife was not.The defence has seen expansion recently in light of Reynolds v Times Newspapers Ltd, where the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
- drawing principally on Lord Nicholls' judgement - established that the mass media could be entitled to the defence, where criteria of 'responsible journalism' (further expanded upon in Loutchansky v Times Newspapers Ltd) were met. This expansion was confirmed in the case of Jameel v Wall Street Journal Europe
Jameel v Wall Street Journal Europe
Jameel v Wall Street Journal Europe was a House of Lords judgment on English defamation law. The judgment was an affirmation of Reynolds v Times Newspapers Ltd and effectively upholds a public interest defence in libel cases.-External links:...
, and has been described as giving newspapers protections similar to the US First Amendment.
See section 15 of, and Schedule 1 to, the Defamation Act 1996
Defamation Act 1996
The Defamation Act 1996 is an Act of the Parliament of the United Kingdom.-Section 14 - Reports of court proceedings absolutely privileged:See Absolute privilege in English law-Section 19 - Commencement:...
.
Innocent dissemination
In general, everyone involved in the dissemination of the defamation is liable as having published it. But it has been held that some forms of distribution are so mechanical that the actor ought not to be held liable unless he/she ought to have realized that there was defamation involved. The defence is known as innocent dissemination or mechanical distributor.In the case of a Private Members' Forum where like minded people post accounts the Administrators, WebHosts and Moderators can not be held accountable due to being published in a limited form only visible to those like minded members. The general public have no access so no right to see any comments so unable to make a claim.
Apology and payment into court for newspaper libel
See section 2 of the Libel Act 1843Libel Act 1843
The Libel Act 1843, commonly known as Lord Campbell's Libel Act, was a Act of the Parliament of the United Kingdom. It enacted several important codifications of and modifications to the common law tort of libel....
and the Libel Act 1845. This defence has fallen into disuse. In 1975, the Faulks Committee recommended that it be abolished.
Limitation
See section 4A(a) of the Limitation Act 1980Limitation Act 1980
The Limitation Act 1980 is a British Act of Parliament. It is a statute of limitations which provides timescales within which action may be taken for breaches of the law. For example it provides that breaches of an ordinary contract are actionable for six years after the event whereas breaches of...
.
Death of the plaintiff
See the proviso to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.Right of privacy?
Since the passage of the Human Rights Act 1998Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, the law of defamation has been subject to pressure for reform from two particular provisions of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
: Article 10 ECHR
Article 10 ECHR
Article 10 of the European Convention on Human Rights provides the right to freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"...
guarantees freedom of expression, while Article 8 ECHR
Article 8 ECHR
Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"....
guarantees a right to respect for privacy and family life. The question is therefore whether the law of defamation strikes the appropriate balance between allowing, for instance, newspapers sufficient freedom to engage in journalistic activity, and on the other hand, private citizens to not suffer unwarranted intrusion.
An independent tort protecting privacy has been rejected in a number of cases, including Kaye v Robertson
Kaye v Robertson
Kaye v Robertson [1991] FSR 62 is a case in English law which is a notable case, expressing the view that there is no common law right to privacy in English law.-Facts:...
in the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
and again recently in the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
in Wainwright v Home Office.
Damages for defamation
The level of damages awarded for defamation cases have been subject to sustained criticism from judges and academics. In particular, compared to awards for personal injury, it seems unfair that the tarnishing of someone's reputation should result in an award (perhaps to the tune of hundreds of thousands of pounds) which is considered greater than the loss of an arm or a leg (which would be tens of thousands of pounds). In the ECHR case, Tolstoy Miloslavsky v. United Kingdom the European Court of Human Rights in Strasbourg added to the criticism of awards given by juries. Defamation is a curious part of the law of tort in this respect, because usually juries are present. The argument goes that juries, when deciding how much to award, will be told the awards in previous cases. They will have a tendency to push to the limits of what was awarded before, leading to a general upward drift of payouts. However, in John & MGN Ltd [1997] QB 586, the Court of Appeal laid down rules to constrain the jury's discretion, and give more comprehensive advice before juries decide.Aldington v. Tolstoy
In 1989, Toby Low, 1st Baron AldingtonToby Low, 1st Baron Aldington
Toby Austin Richard William Low, 1st Baron Aldington, KCMG, CBE, DSO, TD, DL, PC , was a British Conservative Party politician and businessman.-Life:...
initiated and won a record £1.5million (plus £500,000 costs) in a libel case against Count Nikolai Tolstoy
Nikolai Tolstoy
Count Nikolai Dmitrievich Tolstoy-Miloslavsky is an Anglo-Russian historian and author who writes under the name Nikolai Tolstoy. A member of the prominent Tolstoy family, he is of part Russian descent and is the stepson of the author Patrick O'Brian...
-Miloslavsky and Nigel Watts, who had accused him of war crimes in Austria during his involvement in the Betrayal of the Cossacks
Betrayal of the Cossacks
The Repatriation of Cossacks after WW2, also known as the Betrayal of the Cossacks, the Tragedy of Drau or the Massacre of Cossacks at Lienz refers to the forced repatriation to the USSR of the Cossacks and ethnic Russians who were allies of Nazi Germany during the Second World War.The...
at Lienz
Lienz
Lienz is a medieval town in the Austrian state of Tyrol. It is the administrative centre of the Lienz district, which covers all of East Tyrol. The municipality also includes the cadastral subdivision of Patriasdorf.-Geography:...
, at the end of the Second World War. This award, which bankrupted Tolstoy, was overturned by the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
in July 1995 as "not necessary in a democratic society" and a violation of Tolstoy's right to freedom of expression under Article 10 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.
This judgement significantly reduced the level of subsequent libel awards.
The Porter Committee
In 1948, this Committee produced the Report of the Committee on the Law of Defamation (CmdCommand paper
A command paper is a document issued by the British government and presented to Parliament. White papers, green papers, treaties, reports from Royal Commissions and various government bodies can all be released as command papers, so-called because they are presented to Parliament formally 'By Her...
7536). This was partly implemented by the Defamation Act 1952
Defamation Act 1952
The Defamation Act 1952 is an Act of the Parliament of the United Kingdom.This Act implemented recommendations contained in the Report of the Porter Committee...
.
The Faulks Committee
This committee produced the following reports:- Interim Report of the Committee on Defamation (CmndCommand paperA command paper is a document issued by the British government and presented to Parliament. White papers, green papers, treaties, reports from Royal Commissions and various government bodies can all be released as command papers, so-called because they are presented to Parliament formally 'By Her...
5571). 1974. - Report of the Committee on Defamation (Cmnd 5909). 1975.
See also "Defamation Defamed" (1971) 115 Sol Jo
Solicitors Journal
Solicitors Journal is a weekly legal journal published in the United Kingdom by Wilmington Publishing & Information Ltd. It was established in 1856 and covers "practical and independent updates and analysis about the latest developments affecting the legal profession."...
357.
The Libel Reform Campaign
On 10 November 2009, English PEN and Index on CensorshipIndex on Censorship
Index on Censorship is a campaigning publishing organisation for freedom of expression, which produces an award-winning quarterly magazine of the same name from London. The present chief executive of Index on Censorship, since 2008, is the author, broadcaster and commentator John Kampfner, former...
launched their report into English libel law entitled 'Free Speech Is Not For Sale'. The report was highly critical of English libel law and the 'chilling' effect it has on free expression globally. The report made 10 recommendations on how English libel law could be improved; including reversing the burden of proof, capping damages at £10,000, introducing a single publication rule, and establishing libel tribunals (to reduce costs).
In January 2011, Deputy Prime Minister
Deputy Prime Minister of the United Kingdom
The Deputy Prime Minister of the United Kingdom of Great Britain and Northern Ireland is a senior member of the Cabinet of the United Kingdom. The office of the Deputy Prime Minister is not a permanent position, existing only at the discretion of the Prime Minister, who may appoint to other offices...
Nick Clegg
Nick Clegg
Nicholas William Peter "Nick" Clegg is a British Liberal Democrat politician who is currently the Deputy Prime Minister, Lord President of the Council and Minister for Constitutional and Political Reform in the coalition government of which David Cameron is the Prime Minister...
said that he was committed to introducing legislation that would turn "English libel laws from an international laughing stock to an international blueprint".
On 15th March 2011, a “Draft Defamation Bill” (CP3/11) was published by the Ministry of Justice with an accompanying “consultation paper containing provisions for reforming the law to strike the right balance between protection of freedom of speech and protection of reputation.” (Close date: 15 June 2011)
See also
- Censorship in the United KingdomCensorship in the United KingdomCensorship in the United Kingdom has a long history with variously stringent and lax laws in place at different times. Censorship of motion pictures, video games and Internet sites hosted in the United Kingdom are considered to be among the strictest in the European Union, the strictest being...
- Veronica GuerinVeronica GuerinVeronica Guerin was an Irish crime reporter who was murdered on 26 June 1996 by drug lords, an event which, alongside the murder of Detective Garda Jerry McCabe three weeks earlier, helped establish the Criminal Assets Bureau....
- Libel tourismLibel tourismLibel tourism is a term first coined by Geoffrey Robertson to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those...
- Hill v. Church of Scientology of TorontoHill v. Church of Scientology of TorontoHill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130 was a libel case against the Church of Scientology, in which the Supreme Court of Canada interpreted Ontario's libel law in relation to the Canadian Charter of Rights and Freedoms....
, rejection of the US rule by Canada - New York Times v. Sullivan, an actual malice standard in the US in accordance with their 1st Amendment