affiliated to the International Association of Constitutional Law
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’ . 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 Times – emphasis 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.