Tag Archives: Libel

David Mead: Be careful what you wish for….it may never happen: the curious incident of peaceful protest under the coalition

If a week’s a long time in politics, then two years is surely a couple of lifetimes? Hidden away – it now seems – in the coalition’s Programme for Government was the pledge to “restore rights to non-violent protest”. Even in the civil liberties section, it was always the poor relation to the big hitters that were thought more in keeping with the zeitgeist: regulating CCTV, taking action on DNA databases and misuse of anti-terrorism legislation, scrapping ID cards and of course establishing a Commission on a British Bill of Rights.  The antics of the red tops, currently being played out at Leveson, has shifted the focus onto press behaviour but the past few years has also – perhaps perversely in that light – been a real worry for press freedom. The concerted campaign on libel reform has achieved a meeting of political minds – and investment of political capital – in the changes proposed in the Queen’s Speech a week or two ago, with plans that “serious harm” be shown, alongside a statutory public interest defence.

It is something of a puzzle that free speech of a different hue, the right to dissent and to protest, is not simply under the radar but has almost disappeared from the political map. It is exactly two years since the coalition agreement was fleshed out: where are the consultations, the public statements of support, the draft bills and other indicators of government interest? The single, positive change is that restrictions on demonstrations around Westminster have been removed – though protest camps in Parliament Square remain unlawful. If the two negotiating teams thought that was the extent of the problem, they were seriously misinformed. Not only was that change not in the wide-ranging Protection of Freedoms Act – its natural home – but in the Police Reform and Social Responsibility Act 2011 and indeed didn’t even feature in the original Bill but was inserted in Committee in early 2011. That was about the same time as the only public acknowledgement of the pledge in two years. In his policy announcement on civil liberties on 7th January 2011, Nick Clegg simply asserted that the right would be restored – without any detail analysis or explanation of what that might mean or what would be needed. The sidelining of protest couldn’t have been clearer.

So all we have to show is a solitary piece of legislative tinkering as an afterthought, one bland unsubstantiated statement and one consultation, late in 2011, angled (still) towards promoting public order and police powers. Surely, protest is simply free speech writ large – without any of the vestiges of commercialism that flavour even the most upstanding newspaper reports and investigations? No newspaper exists simply to expose wrongdoing – though of course the threat of libel hangs over anyone who publishes, whether mass media or do-gooding pamphleteer. Writ large too because protest and dissent also (perhaps by definition) go directly to political participation – presenting, questioning or confirming democratic alternatives – even if it is not avowedly partisan. Can we always say the same of alleged libels? Yet that singular aspect of free speech is now to benefit from special legislative intervention. If free speech is now recognised politically as A Good Thing, why isn’t the same respect accorded when we try to make our views known by protesting?

Libel law of course has, in footballing terms, home advantage: it’s always easier to mount a media campaign when the media is on your side even more so when what is being argued for are better terms and conditions for the media. Any editor would think: “what’s not to like?” It also chimes more easily perhaps with libertarian hearts and minds. Perhaps the perception is that protest is hale and hearty: after all if 30,000 police officers can march across London, where’s the problem? None of these though really account for the paucity of political engagement with the question of how we regulate the expression of dissent. A likelier explanation is the nature of the coalition and the turmoil at its heart.  The pledge really stemmed from the Liberal Democrats. Their manifesto committed them to restore the right to protest by reforming the Public Order Act to safeguard non-violent protest even if it offends and to restrict the scope of injunctions issued by vested interests. The Tory’s manifesto was silent – on that particular civil liberties issue at least. Unsurprising really, as it was Tory peers in the wash-up who objected to the Constitutional Reform and Governance Act 2010 including provisions overturning the ban on demonstrations near Westminster. Such inertia yet, to take one simple example, the Department for Business, Innovation and Skills was recently able to find the time to consult on removing the dishonesty from the cartel offence in the Enterprise Act 2002. A matter of priorities, and the all-pervasive financial & economic agenda?

It’s not simply that peaceful protest is the human right that dare not speak its name – it’s been in retreat. Breach of the peace remains the catch-all for dealing with any sort of likely disruption, as well as acting as the underpinning authority for kettling more generally. Cases like Austin, at Strasbourg, and here Moos and McClure (where the Court of Appeal overturned the only successful kettling case to date) do not paint a happy picture. The thorny issue of finding physical space to hold a protest – with the commercialisation of formerly public land – is in turn problematic, made no better by holding that distance and the cost of daily travel cannot justify the establishment of a semi-permanent protest site. That decision, in Gallastegui last month, joins the line of unsuccessful occupation cases over the past couple of years, like Hall (Democracy Village) and Samede (Occupy LSX). The point here is not that the occupiers should have won but that an engaged polity needs to find space to discuss the extent to which we should allow such forms of protest. To this catalogue we might add the admittedly contentious decision in Abdul v DPP, the conviction under s.5 of the Public Order Act 1986 of those protesting in fairly vituperative terms (“Baby killers” “Rapists” “Murderers”) about the war in Iraq at a homecoming for British troops and the continued place in the armoury of aggravated trespass. The case against those 145 members of UK Uncut who “occupied” Fortnum and Masons in March 2011 would be a prime example, as would the sit-in protests at the Ahava store in Covent Garden, based on its connections to the Occupied Palestinian Territory on the West Bank, in Nero v DPP. All of this against a backdrop of continuing disquiet at aspects of policing practice: the revelations about undercover surveillance and embedding officers in environmental groups; Kent police paying out £5.3m to all those it subjected to blanket (and so arbitrary) stop and search at the Kingsnorth Climate Camp; and allegations of excessive force as police kettled student protesters on Westminster Bridge in December 2010.

In short, it is hard to think of anything particularly positive from the last few years. Following last year’s consultation (and indeed a recommendation of the Joint Committee on Human Rights in 2009), reform of s.5 of the Public Order Act 1986 is back on the political agenda courtesy of Peter Tatchell last week. Even if there is movement there, restoring the right to peaceful protest will not be achieved simply by tinkering with demonstrations around Westminster and making it no longer an offence to utter “insulting” words. One of the problems – as I argue in an article to be published in Public Law next year – is the increasing use of private law to control and contain protesters. This subverts the more transparent and accountable public law framework: arrests for crimes and conditions imposed on marches and assemblies. Not only are protesters subject to the grace and favour of private landowners – which explains why Occupy LSX were outside St Pauls not the Stock Exchange, over which Paternoster Square Holdings had obtained an injunction – creating what we might call a “differentiated reality” of protest, but we are witnessing an increasing reliance on anti-harassment and libel injunctions (or SLAPPs, a transatlantic import) by target companies. This is what lies behind the second limb of the Lib Dem manifesto commitment.

So, what should the immediate future hold? Two years ago, just before the general election, I called for a Royal Commission into Peaceful Protest. The need appears to have become no less pressing in the intervening period. We need to turn the focus away from the UK’s historic attachment to order maintenance; we have several Public Order Acts but no Peaceful Protest Act. First we need to eradicate the concept of “unlawful” assembly from both law and policing practice. The right to protest peacefully is an individual right not something defined out, and so lost, simply because others are violent or intend serious harm. Seeing protesters as an amorphous mob lies behind the legitimising of kettling, treating everyone as a potential threat on the basis of suspicions of perhaps a handful. Any Peaceful Protest Act would provide criteria to assess whether or not a protester is “peaceful”; its antonym is violence, not disruption or inconvenience. We should – and indeed must – accept as legitimate forms of protest that disrupt and obstruct us, as part and parcel of a vital democracy. This echoes Michael Sandel’s concerns about markets: that they reduce our shared experiences and so diminish democratic life. It is what David Feldman calls “coerced toleration” or as Lord Scott out it in Pro Life: we simply do not have the right to be offended by certain forms of speech. For too long protest NIMBYism has dominated; without respecting the views of others, why should I be able to demand my own be heard? Worse, we think nothing of the inconvenience caused by all-night queues outside the Apple store or the disruption at 5:00 on Saturdays as football crowds disperse yet we clamour for a clamp down when a march causes temporary street closures. The wider public social utility of my right to dissent needs re-affirmation. Furthermore, we should be prepared to accept the political legitimacy of certain forms of non-violent direct action. Where it is obstructive or disruptive but is so only temporarily, or incidentally or symbolically, a pressing case is needed to justify restricting it, the more so perhaps for views which run counter to the mainstream and so will never otherwise reach the political agenda. There is a world of difference between a few protesters linking arms outside an arms factory for five minutes to prevent workers entering and a group which tries to dismantle an entire fighter plane. That would allow us properly to distinguish intentional intimidation or obstruction aimed at stopping an activity itself done as a supplanting of the democratic process by effecting change directly.

Other key elements in any new legislative framework would be that a protest impact statement is required for all future proposals. This would explain why a new, bespoke offence is needed to capture whatever discrete anti-social activity is being carried out. History shows that knee-jerk laws in this area are prone to misuse or, perhaps as worse, massive under-use. The need for new laws may not be down to any substantive gaps but to evidential difficulties under existing laws, which a new offence simply would not solve. A Peaceful Protest Act would provide for two more pressing reforms: codifying and constraining the common law power to take preventive action on grounds of breach of the peace, containing containment so to speak, and creating a limited right of access to quasi-public land for the purposes of protest – as Tom Watson unsuccessfully endeavoured to do in the course of the Protection of Freedoms Bill becoming law last year. Last, it would respond better to the need to balance the legitimate rights of businesses to be free from activities designed directly to obstruct its trade and the rights we all have to persuade employees, suppliers and customers not to buy from, sell to or work for that company. There have been enough instances where injunctions have been granted to prevent free speech and dissent: disconcerting and ill-judged perhaps, hostile and unwelcome certainly but peaceful protest nonetheless.

Maybe it’s not the broken society that the coalition needs to worry about, but broken promises?

David Mead is a Senior Lecturer in Law at the UEA Law School. 

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Conor Gearty: Max Mosley in Strasbourg

It is right that the feisty and courageous Max Mosley should have lost his recent case at Strasbourg.  He was asking for simply too much.  After all, he had already won his action for damages in the English courts,  having secured a £60,000 damages award from Mr Justice Eady.  Mosley wanted more – in particular he argued for a general presumption that those whose privacy would be affected by a proposed publication should be given prior notification of its imminence so as to give them the chance to start proceedings to prevent it ever appearing.

Whatever one things about the despicable behaviour of the media in this area (on which more presently) the kind of closing off of the stable door before the horse bolts suggested by Mosley would have done far more harm than good.  Gagging orders of the type that once pockmarked the laws of libel and contempt would become far more common than they are now, and not all the claimants would be genuine individuals striving to protect their privacy (think Trafigura and capitalist crooks like the late Robert Maxwell as well as trouser-less footballers and the occasional Marr-man (ie a political commentator required for professional reasons to appear ethically pure).  The chill factor caused by such a new law would dampen down much reporting that was valuable as well as some that was contemptible – it would be a blunderbuss of censorship destroying far more than it targeted.

The European judges have sensibly avoided going down this route.  Their unanimous judgment notes that what Mosley was after went far beyond – and was consciously designed to go well beyond – the confines of his own case: he had won after all.  This being so, the Court could not help but notice that it was being drawn into something which was too close to law-making for its liking.  There was much diversity of practice across Europe and plenty of legislative engagement with the issue in Britain already:  clear indicators that the case was right for the application of the Court’s  margin of appreciation.  (This is the polite way the Court has of brushing of supplicants whose overtures it wants to reject.)

There was also, of course, a free speech point.  The European Convention on Human Rights  protects not just respect for privacy (article 8) but free speech as well (article 10).  The neat way the Court dealt with this was to note what needed to be done to make the prior notification rule fit with article 10.  First there had to be a defence based on the public interest and this would have to include a reasonable belief as to that interest was.  Second, there could be no possibility of punitive fines or a criminal sanction for breach since these would (as the Court put it) ‘create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.’

But with these two free speech qualifications was it worth having the rule at all?

Surely newspapers would just publish and take their chances with the court afterwards, arguing a reasonable belief in the public interest and taking on the chin any damages that might follow if the defence happened to go  wrong?  As the Court observed, even if the pre-notification rule had been in place the News of the World might well have chosen not to inform Mosley – remember all that nonsense about Nazi regalia masquerading as a public interest motive for publication?  So having eviscerated the rule sought in order to make it fit with article 10, the Court stood back, admired its destructive handiwork and concluded that it was something not worth having after all.

Despite the defeat, Mosley emerges from the story as a strong character unafraid of confronting head-on the commercially driven sleaziness of what used to be called the Tabloid press.  Those who do not read these papers do not perhaps appreciate quite how dependant they are on invading the privacy of celebrities (memorably  defined by Chris Patten as ‘Somebody I have never heard off’).  Few politicians in any kind of position of power ever challenge their moral iniquity – even when they are breaking the law or being grossly deceptive to get their story (and it is not just the Tabloids – remember Vince Cable’s entrapment by the Telegraph).  The pressure groups are also invariably the friends of the media – as all eleven interveners were in the Mosley case.  Less appreciated is how close the linkages are between those professional lawyers who argue for free speech in their spare time and for newspapers in court for commercial gain in their professional lives.

The one group who are immune to this pressure are the judiciary: their job is to apply the law – not as they imagine it but as it happens to be.  Parliament has long bottled out of challenging the press directly in a new privacy bill, instead quite deliberately allowing the Human Rights Act to do the work by a process of case-law accretion.  The press tried to exempt itself from the Act when it was going through Parliament – using the then chair of the Press Complaints Commission  Lord Wakeham to table an amendment which would have had this effect. It failed but the press got what is now section 12 instead.  Welcomed by Lord Wakeham at the time, it helped to achieve exactly the opposite of what it intended, a common law of privacy – starting with Douglas v Hello! Ltd in late 2000.

Since then the courts have done their job as well as could be expected, developing an article 8 jurisprudence as consistent with article 10 as can be reasonably managed given the opposite directions in which these two  rights point.

The media is not used to not getting its way.  They have subjected the judges involved in this area of the law to a fierce onslaught of criticism.  The person most often in the firing line these days is Mr Justice Eady, but there have been others in the past and there will be more in the future.  Leading the charge has been the editor of the Daily Mail, Paul Dacre, furious that his writ appears not to run in the courts as easily as it seems to everywhere else.

In all the rage about celebrity privacy, it is only the courts that appear ever to take into account the children who are often the worst victims (in terms of being bullied at school) of revelations about the bad behaviour of a parent: see this recent example of how the courts try to achieve a proper balance in this area.  it seems that newspaper editors have a commitment to children when it comes to exposing supposed child-abusers, but are less fearless when their own wallet is at stake.

Who is to defend the judiciary?  Perhaps an intervention by a team of academics would not be out of place, a joint letter or article in the … papers.  Would it ever be published?  Shall we see?

Conor Gearty is Professor of  Human Rights Law at LSE

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Alison L. Young: Draft Defamation Bill – a Missed Opportunity?

The draft Defamation Bill was announced by Kenneth Clarke on 15 March. It aims to redress the perception that the current law tips the balance too far away from free speech in favour of the protection of reputation. The Bill aims to enhance freedom of expression by: raising the threshold for libel actions; creating a defence of responsible publication on matters of public interest; replacing the defence of justification with a defence of ‘truth’ which is satisfied on proof that the defamatory implication is ‘substantially true’;  and replacing the defence of fair comment with the defence of ‘honest opinion’ for statements of opinion on a matter of public interest that an honest person could have held based upon published facts or published privileged information. The Bill extends absolute privilege to include foreign and international courts and extends qualified privilege to include fair and accurate accounts of certain foreign governmental activities, international organisations and conferences, company reports and academic conferences. It aims to calm fears of multiple publications on the internet by creating a single publication rule prohibiting the ability to sue for a statement first published more than a year earlier and to reduce ‘libel tourism’ by only hearing actions brought by a non-EU citizen in England and Wales where England or Wales is the most appropriate place. It also replaces the presumption of trial by jury, juries now requiring a court order.

The Bill has received lukewarm support from proponents of libel reform and the media. Critics are concerned that large corporations will still be able to bring defamation actions, that qualified privilege has not been extended to peer reviewed journals and the lack of provisions to reduce the large costs that generate the ‘chilling effect’ (although this is mentioned as an issue for consultation on the Bill and the lack of any specific suggestions may be due to the recent Jackson review of civil litigation costs). Others argue that the draft Bill has tipped the scales too far in favour of freedom of expression to the detriment of the protection of reputation, particularly given concerns that the media plays fast and loose with privacy in the light of the current phone-hacking scandal.   There are also concerns the Bill is focusing on the wrong issues, failing to consider developing protections of privacy, as well as super- and hyper-injunctions. This opinion will focus on the underlying constitutional issues, being concerned in particular with political speech and the extent to which the draft Defamation Bill preserves free speech as a ‘vital cornerstone of a democratic society’.

Filtered or Chilled?

Defamation law aims to filter speech. As the theory goes, true speech facilitates democracy without harming reputations, enabling individuals to act on true information and ensuring political figures cannot artificially enhance their reputation with flattering lies. False allegations harm reputation and democracy. However, truth can be hard to prove. Requiring proof may chill speech, such that information known to be true, but incapable of being proved to be so to the satisfaction of the court, remains unpublished. False reputations remain unchallenged, undermining democratic accountability. It is the difficulty of proving truth that may chill speech. Publishers err on the side of caution in the face of all-too-easily-initiated libel actions whose defence requires the satisfaction of vague legal tests in a world of rapidly changing information, whose value diminishes over time, in the face of spiralling legal costs and damages.

The draft Defamation Bill goes some way to reducing the chilling effect. The requirement of ‘substantial harm’ in clause 1 may deter applicants from raising frivolous defamation actions; clauses 3 and 4 may provide some clarity over the defences of truth and honest opinion and the removal of the presumption of trial by jury in clause 8 may go some way to curbing spiralling costs, restricting litigation over legal definitions before the issue even goes to jury trial.

However, the requirement of ‘substantial harm’ may add little to Thornton v Telegraph which requires defamatory meanings to pass a ‘threshold of seriousness so as to exclude trivial claims’ [89]. Moreover, the general terms contained in the Bill may give rise to further litigation. What is ‘substantial harm’? Clause 3(3), for example, states that;

‘if one or more of the imputations is not shown to be substantially true, the defence [of truth] does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not materially injure the claimant’s reputation’.

Again, further litigation may arise concerning fine delineations between matters that are and are not substantially true, or what is meant by a material injury to reputation. Courts are not bound by relevant previous common law decisions, given that clause 3 proposes to abolish the common law defence of justification and section 5 of the Defamation Act 1952, furthering the possibilities of further future litigation.

The defence of honest opinion may help to alleviate the chilling effect as, in contrast to the defence of fair comment, it no longer requires a publisher to prove the truth of the facts upon which the opinion or comment is based. Instead, there is a need to demonstrate that the opinion could have been held honestly on the basis of published facts or privileged statements. However, the defence still requires courts to determine the thorny issue of whether a statement is fact or opinion, as well as trying to define the public interest. Moreover, although the defence will succeed whenever facts exist upon which the opinion expressed could be honestly based, clause 4(5) enables claimants to defeat the defence where they can prove the defendant did not honestly hold the opinion – e.g. if the claimant can show that the defendant was not aware, at the time of publication, of the facts upon which such an honest opinion could be based. This may prompt yet more litigation and threats of litigation. For every legal advisor dissuading potential claimants in the light of the more stringent requirements, there may be other legal advisors dissuading publication in the face of vague legal defences.

The common law aimed to alleviate the chilling effect on political speech by preventing public corporations from initiating defamation suits in Derbyshire County Council v Times and by creating the Reynolds privilege.  However, the definition of ‘public corporations’ may be too narrow to include all bodies that should be accountable for their performance of public functions. However, as the drafters of the Bill recognise expanding this definition with sufficient precision may be impossible, as the definition of public authorities for the purposes of section 6 of the Human Rights Act 1998 has demonstrated. Moreover, it will not prevent harm to democratic speech that may arise when corporations bring actions to protect their reputation.

It is not clear how far the ‘codification’ of Reynolds will change the perception that the privilege rarely succeeds in protecting free speech. The factors listed in the Bill more or less replicate Lord Nicholls’s criteria. The only small differences are a reference to the context of the publication in the Draft Bill – which might be used to help non-media defendants seeking to obtain the privilege – and the lack of a requirement in the Draft Bill for the publication to contain the ‘gist’ of the claimant’s side of the story. However, Reynolds has not been expressly over-ruled by the draft Bill, creating a lack of clarity both as to the extent to which case law interpreting Reynolds may be used to interpret the provisions of the Bill and as to how the Reynolds privilege will interact with the statutory defence. The draft Bill’s defence of responsible publication extends to all statements on a matter of public interest, including statements of opinion. As such, it may be hard to delineate between this defence and that of honest opinion, creating yet further vagueness and ensuing litigation. Although the consultation document refers to the possible reference to professional codes of practice to help determine the confines of ‘responsible publication’, these are not incorporated into the Bill. To do so would perhaps help to provide at least some guidance.

Codification may enhance free speech merely by moving the Reynolds criteria to a statutory basis. This may encourage courts to reason to apply top-down reasoning from rights and principles as opposed to applying bottom-up reasoning relying on similarities and differences between the current facts before the court and previous decisions. This more rights-based reasoning may also arise due to the application of section 3 Human Rights Act 1998. Courts will be required to interpret the new Defamation Bill compatibly with Convention rights, as opposed to the more opaque requirements of the court to modify the common law in line with Convention rights. However, this alone may not tip the balance in favour of free speech – Convention rights include article 8 as well as article 10, requiring the court to balance the protection of reputation and free speech. Moreover, this balancing act is unlikely to provide further clarity, potentially adding to, as opposed to removing, the chilling effect.

Truth and Proof

The draft Defamation Bill does provide a glimmer of hope for those who complain that free speech is inadequately protected. However, it fails to address more fundamental issues. The Bill, like the common law, is based on truth. The ‘chilling effect’ arises because truth can be known, but hard to prove. When applying the defence – e.g. most recently in Flood v Timesemphasis appears to be placed upon the steps taken to verify information and the reliability of sources of information. This may be hard to differentiate in practice from proving the statement to be substantially true. It is not clear how clause 2 of the Bill can find a standard of responsible journalism that minimises the risk of the proliferation of false information that stops short of proof of truth – particularly as cases arise after publication, with the ensuing benefit of hindsight. It is hard to see a statement as satisfying the principles of responsible journalism when its defamatory implications have been proved to be false, even though, at the time of its publication, there may have been enough evidence for a responsible publisher to reasonably believe that the statement was true.

Tinkering around the edges of defamation law may not suffice. Mill’s classic defence of freedom of expression did not only recognise that free speech may be better able to promote truth, but also recognised that for any authority to assume truth without free discussion was irrational. Democracy is served not just by true statements, but also by facilitating the ability of the electorate to discern between truth and falsity. The draft Bill recognises the influence of the internet through its modification of the multiple publication rule and the codification of the recent ‘reportage’ defence in clause 2(3). However, it fails to recognise how the internet places individuals in a position to chase alternative sources of information, or may provide a possibility for those defamed to publish their side of the story. The principle of responsible journalism may work well in theory, but to work well in practice it may require a shift in emphasis away from proof of truth towards freedom from deliberate or irresponsible manipulation of the facts.

 

Alison L. Young is a Fellow at Hertford College, Oxford.

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