English defamation law

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 (1567-1625). 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; note that under English law companies are legal persons, and may bring suit for defamation) 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.

English defamation law puts the burden of proving the truth of allegedly defamatory statements on the defendant, rather than the plaintiff, and has been considered an impediment to free speech in much of the developed world. In many cases of libel tourism, plaintiffs sued in England to censor critical works when their home countries would reject the case outright. In the United States, the 2010 SPEECH Act makes foreign libel judgements unenforceable in U.S. courts if they don't comply with US free speech law, largely in response to the English laws.

The Defamation Act 2013 substantially reformed English defamation law in recognition of these concerns, by strengthening the criteria (including geographical relevance criteria) for a successful claim, mandating evidence of actual or probable harm, curtailing sharply the scope for claims of continuing defamation (in which republication or continued visibility comprises ongoing renewed defamation), and enhancing the scope of existing defences for website operators, public interest, and privileged publications, including peer reviewed scientific journals. The 2013 law applies to causes of action occurring after its commencement on 1 January 2014; old libel law will therefore still apply in many 2014–2015 defamation cases where the events complained of took place before commencement.

History

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 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 courts, 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 the Statute of Westminster 1275, c. 34, 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.

Criminal offence

See defamatory libel.

Present 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; under English law companies are legal persons, and allowed to bring suit for defamation)

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 is liable for saying anything to C about B which would be apt to make the average citizen think worse of the latter.

A statement can include an implication; for instance, a photograph of a particular politician accompanying a headline reading "Corrupt Politicians" could be held as an allegation that that politician 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.

Under English law, because companies are legal persons they can sue on the basis of libel the same as natural persons. Cases supporting this principle go as far back as the 19th century, such as South Hetton Coal Co. Ltd. v. North Eastern News Ass'n Ltd. [1894], and extend to more recent cases such as Bognor Regis U.D.C. v. Campion [1972] and the McLibel case, when McDonald's sued several protesters.

The 2006 case of Keith-Smith v Williams 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 1952. Also at common law.
• Words imputing unchastity or adultery to a female, see the Slander of Women Act 1891

In 1975 the Faulks Committee recommended that the distinction between libel and slander should be abolished, and that slander should be assimilated to libel.

Publication in a permanent form

As to what constitutes publication in a permanent form for the purpose of the law relating to libel, see section 166(1) of the Broadcasting Act 1990 and sections 4(1) and (3) and (7) of the Theatres Act 1968. See formerly section 1 of the Defamation Act 1952.

Burden of proof on the defendant

In the common law of libel, the claimant has the burden only of proving that the statement was made by the defendant, and that it was defamatory. These things are generally relatively easy to prove. The claimant is not required to prove that the statement was false. Instead, proving the truth of the statement is an affirmative defence available to the defendant.

Because proving the truth or falsity of the statement is often extremely difficult (and the defendant does not generally have the ability to force the claimant to disclose materials that might help prove it) it is frequently said that the "burden of proof" in English defamation law falls upon the defendant.

Defences

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 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 Act does not apply to offences that warrant a 2.5 year prison sentence or more, which can never be spent.

Fair comment

Main article: Fair comment § United Kingdom

This defence arises if the 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 critic's defence" as it is designed to protect the right of the press to state valid opinions on matters of public interest such as governmental activity, political debate, public figures and general affairs. It also 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 arose in 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 to their agent company, 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 upon facts, as highlighted in Kemsley v Foot [1952] A.C. 345. The politician and journalist Michael Foot had printed an article in Tribune, a Labour Party newspaper, condemning the London Evening Standard for unethically publishing a certain story. Lord Kemsley, who owned other newspapers, maintained that the article's headline, "Lower than Kemsley", impugned the standards of the Kemsley press. The defence of fair comment was allowed to stand.

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 Telnikoff v Matusevitch (1992), Telnikoff wrote an article in the Daily Telegraph criticising 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 held 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 would not know why he was making such a statement.

A defence of fair comment can fail if the defendant shows malice, as in Thomas v Bradbury, Agnew & Co. (1906); the defendant not only criticised the claimant's book but made many personal slurs against the author, invalidating the defence.

Absolute privilege

Main article: Absolute privilege in English law

Further information: Parliamentary privilege in the United Kingdom

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

Main article: Qualified privilege in English law

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 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—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 First Amendment to the United States Constitution.

See section 15 of, and Schedule 1 to, the Defamation Act 1996. See also section 1(5) of the Public Bodies (Admission to Meetings) Act 1960, section 121 of the Broadcasting Act 1996, section 79 of the Freedom of Information Act 2000 and section 72 of the Learning and Skills Act 2000.

Innocent dissemination

Main article: 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 1843 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 1980.

Death of the plaintiff

See the proviso to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

Damages

See also: Measure of Damages (under English law)

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.

Mitigation of damages

As to evidence of an apology, see section 1 of the Libel Act 1843. As to evidence of other damages recovered by the plaintiff, see section 12 of the Defamation Act 1952.

Consolidation of actions

As to consolidation of actions, see section 5 of the Law of Libel Amendment Act 1888 (libel) and section 13 of the Defamation Act 1952 (slander).

Reforms April, 2013

On 25 April 2013 the Defamation Act 2013 was enacted. Among other things, it requires plaintiffs who bring actions in the courts of England and Wales alleging libel by defendants who do not live in Europe to demonstrate that the court is the most appropriate place to bring the action. In addition, it includes a requirement for claimants to show that they have suffered serious harm, which for-profit bodies is restricted to serious financial loss. It removes the current presumption in favour of a Jury trial. It introduces new statutory defences of truth, honest opinion, and "publication on a matter of public interest", to replace the common law defences of justification, fair comment, and the Reynolds defence respectively, and a completely new defence applying to peer-reviewed publication in a scientific or academic journal.

Cases

Aldington v Tolstoy

Main article: Aldington v Tolstoy

In 1989, Toby Low, 1st Baron Aldington initiated and won a record £1.5 million (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, Austria, at the end of World War II. 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.

The 'McLibel' case

Main article: McDonald's Restaurants v Morris & Steel

In 1990, McDonald's 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 legal 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:

• 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.

Irving v Penguin Books and Lipstadt

Main article: Irving v Penguin Books and Lipstadt

On 5 September 1996, Holocaust denier David Irving filed a libel suit concerning Deborah Lipstadt's book Denying the Holocaust. He named in his suit Lipstadt and Penguin Books, whose division Plume had published a British edition of her book. He claimed that "his reputation as an historian was defamed". Irving lost the case. He was liable to pay all of Penguin's costs of the trial, estimated to be as much as £2 million (US$3.2 million). He was forced into bankruptcy in 2002 and lost his home. Lipstadt spent five years defending herself. She described her story in History on Trial, published by Ecco in 2005.

Funding Evil case

Main article: Funding Evil

In 2003 Rachel Ehrenfeld published her book Funding Evil, which explained how terrorist groups receive funding. Khalid bin Mahfouz was accused of funding terrorist groups in the book. The book wasn't sold in British bookstores, but 23 copies were sold in Britain, which gave the United Kingdom jurisdiction. Mahfouz sued Ehrenfeld for libel, to which Ehrenfeld responded by calling this libel tourism, and refusing to recognize the legitimacy of the case. On a summary judgement in Mahfouz's favor, after Ehrenfeld refused to appear in court, she countered-sued in U.S. courts claiming a violation of the First Amendment. While the U.S. courts ruled in Mahfouz's favor, the U.S. Congress responded with the SPEECH act, which made such libel judgements unenforceable in the United States.

The Simon Singh case

Further information: Simon Singh § Chiropractic lawsuit

On 19 April 2008, British author and journalist Simon Singh wrote an article in The Guardian, which resulted in him being sued for libel by the British Chiropractic Association (BCA). 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 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 Brecht 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 has launched a campaign to draw attention to the case. They have issued a statement entitled "The law has no place in scientific disputes", with myriad signatories representing science, journalism, publishing, arts, humanities, entertainment, skeptics, campaign groups, and law. As of 31 March 2011, over 56,000 have signed. Many press sources have covered the issue.

Cycling and doping

Lance Armstrong employed English law firm Schillings to help him fight allegations of doping by using English libel law. Schilling's Gideon Benaim and Matthew Himsworth worked on his cases. At one point, Schillings told "every UK paper and broadcaster" to not re-state allegations raised by the book L. A. Confidentiel.

Armstrong sued London's Sunday Times for libel in 2004 after it referenced the book. They settled out of court for an undisclosed sum in 2006. After the USADA 2012 report on doping during Armstrong's racing era, the Sunday Times stated it might attempt to recover the money it lost and might sue Armstrong for fraud.

Emily O'Reilly, a masseuse who worked with Lance Armstrong's U.S. Postal cycling team, claimed that English libel law prevented her from speaking out about the doping she saw in cycling and the Tour de France. David Walsh, co-author of L.A. Confidentiel, told the Press Gazzette in 2012 that if it weren't for English libel law, "Lance Armstrong might not have won the Tour De France seven times and the history of sport would be different and better".

Cases not in court

In addition to case law, there are numerous notable examples of authors and publishers refusing to print work out of fear of libel suits. Several novels have been cancelled or altered after threats of libel suits.

UK Prime Ministor John Major sued several periodicals, including Simon Regan's Scallywag, and New Statesman, over stories about an alleged affair with Clare Latimer; Scallywag closed afterwards. It was later revealed that Major had a real affair with MP Edwina Currie, and Latimer later claimed Downing Street had used her as a decoy to confuse the press.

Child sexual abuse

After BBC television personality Jimmy Savile died it came to light that hundreds of people accused him of having abused them when they were children. The Sunday Mirror neglected to publish a story in 1994 regarding two of his alleged victims because its lawyers were worried about the costs of a libel trial. A British newspaper editor, Brian Hitchen, claimed he heard from a ship captain about Savile's abuse decades beforehand, but noted that libel laws had prevented people from speaking up about Savile's abuse.

Privacy

Main article: Privacy in English law

Since the passage of the Human Rights Act 1998, 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, the right of private citizens not to 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.

Proposals to amend the law

The Porter Committee

In 1948, this Committee produced the Report of the Committee on the Law of Defamation (Cmd 7536). This was partly implemented by the Defamation Act 1952.

The Faulks Committee

This committee produced the following reports:

• Interim Report of the Committee on Defamation (Cmnd 5571). 1974.
• Report of the Committee on Defamation (Cmnd 5909). 1975.

See also "Defamation Defamed" (1971) 115 Sol Jo 357.

The Libel Reform Campaign

On 10 November 2009, English PEN and Index on Censorship 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). The campaign quickly grew with support from over 60,000 people and 100 affiliated organisations. The broadness of the campaign's support contributed to its success with celebrity support, alongside support from GPs, scientists, academics and NGOs.

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 15 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)

The Defamation Bill 2012–13 received its second reading in the House of Commons on 12 June 2012.

On 6 March 2013, a number of British authors and playwrights wrote an open letter to the leaders of the three biggest parties in the House of Commons, David Cameron, Nick Clegg, and Ed Miliband, calling them to ensure the Defamation Bill was passed. The letter, organised English PEN, grew out of a concern that the bill has become threatened by political disputes over the results of the Leveson Inquiry. The bill did not cover press regulation until February 2013, when Lord Puttnam won support to include a section covering newspapers.

Legal aid

In 1979 the Royal Commission on Legal Services recommended that legal aid should be made available for proceedings in defamation. The same recommendation had previously been made in the twenty-fifth annual report of the Legal Aid Advisory Committee.

See also

• Censorship in the United Kingdom
• Veronica Guerin
• Libel tourism
• Hill v. Church of Scientology of Toronto, rejection of the U.S. rule by Canada
• New York Times v. Sullivan, an actual malice standard in the United States in accordance with the First Amendment

References

• Paul Mitchell, The Making of Modern Defamation Law (2000)
• Basil Markesinis, 'Our Patchy Law of Privacy – Time to do Something about it' (1990) 53 Modern Law Review 802
• Lord Bingham, ‘Tort and Human Rights’ (1998) Essays in Celebration of John Fleming, pp. 1–12, esp. pp. 9–12
• Raphael, Adam (1989). My Learned Friends: an Insider's View of the Jeffrey Archer Case and Other Notorious Actions. ISBN 978-1-85227-094-0.
• The Competing Right of Freedom of Speech and Reputation

External links

• The Libel Reform Campaign