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Article Story:
THE PRICE OF TRUTH FOUND TO BE TOO HIGH IN THE NEW LAW OF
LIBEL
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Date:
30.04.2003
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The result of Loutchansky six
Diplock J said in Silkin v Beaverbrook Newspaper
Limited [1958] 1 WLR 743 at 746 (an action by an
individual against a newspaper):-
'… Every man, whether he is in public life or not, is
entitled not to have lies told about him; and by that is meant that
one is not entitled to make statements of fact about a person which
are untrue and which redound to his discredit, that is to say, tend
to lower him in the estimation of right-thinking
men.'
The historic purpose of the law of defamation was to allow
someone whose reputation had been unjustly damaged to establish
that the allegations against him were untrue, and to obtain
compensation both to provide some form of restitution, and as a
signal to the world that the allegations at issue were
untrue. As such the law of defamation served the purposes
both of the individual (protecting the right not to be unjustly
deprived of his good name) and of society, since the court provided
a forum for the determination of the truth or otherwise of those
allegations.
The defence of Qualified Privilege did in certain defined
circumstances limit the right of the individual to restore his
reputation via the court, as set out in the first sentence of the
relevant chapter of Gatley on Libel and
Slander (ninth edition):-
'There are occasions upon which, on grounds of public policy
and convenience … a person may …, without incurring liability for
defamation, make statements about another which are
defamatory and … untrue.' (emphasis
added)
Until very recently, there was no distinct treatment of the
media for this defence, which had to fit any publication for which
it was responsible into the normal principles if it was to enjoy
protection. This all changed in Reynolds v Times
Newspapers Limited [2001] 2 AC p. 127. The effect of
the House of Lords judgment in Reynolds is that the
media can now make untrue and defamatory statements about an
individual and not suffer liability so long as the newspaper has
acted in a way which the courts consider 'responsible'. If a
court does find that the publication was responsible, the subject
of those allegations appears to have lost any right to
redress. Even if the media defendant was found to have acted
irresponsibly, the claimant still cannot obtain a finding that the
allegations made against him are untrue – unless (remarkably) the
defendant newspaper (or other media publisher) has
elected to try to prove the allegations.
The loss of an individual's right to vindication
against a publisher which has said untrue and defamatory things of
him has now been confirmed in the judgment recently reported at
[2002] E.M.L.R. 44, which is directly derivative of that in
Reynolds. In the same judgment the right of
the public to hear the court’s determination as to
the truth or falsity of such issues has also been lost in the
continuing move to protect the media from being held to account for
what it publishes. The four reasons given by Gray J which are
of general application are set out below.
THE FIRST REASON – THERE IS NO SUCH RIGHT
Citing Nixon v AG [1930] 1 Ch 566, Gray J said:
'A party to litigation is entitled to seek a declaration in
relation only to an existing legal right' (emphasis added).
He was not persuaded that the claimant had the necessary legal
right, rejecting the claimant's submission based on Al-Fayed
v UK [1994] 18 ECHR 393 'that the Claimant has a legal
right to a good reputation and that to deny the Claimant the
opportunity to establish that right … would be to deny his rights
to a fair trial under Article 6 of the Convention.' Gray J
concluded that in the Al Fayed case the court was
merely 'persuaded to assume the existence of such a right' which,
it appeared to Gray J, 'can more properly be described as a right
to reputation undamaged by false and defamatory imputations.'
Diplock J clearly thought of it as a right as his judgment in
Silkin v Beaverbrook makes clear. Lord
Hobhouse in Reynolds was also apparently in no doubt that some such
right existed when he said: 'The law of civil defamation is
directly concerned with the private law right not to be unjustly
deprived of one's reputation …' Reynolds v Times
Newspapers [2001] 2 AC p. 238c. It is difficult to
see that the right as formulated by Lords Diplock and Hobhouse has
any practical value if its protection can be defeated by the lack
of the right described by Gray J.
The jurisdiction to grant such a remedy has already been
recognised by Section 9 of the Defamation Act
1996, which provides at sub-section 1(a) that the summary
relief under Section 8 which the court can grant includes 'a
declaration that the statement was false and defamatory of the
plaintiff.' It is difficult to see how the anomaly can be
maintained that relief available to a claimant in the summary
procedure, where the allegations will almost inevitably be less
serious and/or the subject of less substantial dissemination, can
be refused to a claimant whose reputation has suffered worse
damage.
Surely Article 8 of the European Convention on Human Rights, a
right to respect for one's private life, is breached by a refusal
to allow a claimant even to seek such a remedy. This is
implicit in this important dictum of Lord Nicholls in
Reynolds:
'Reputation is an integral and important part of the
dignity of the individual. It also forms the basis of
many decisions in a democratic society which are fundamental to its
well-being: whom to employ or work for, whom to promote, whom to do
business with or to vote for. Once besmirched by any
unfounded allegation in a national newspaper, a reputation can be
damaged forever, especially if there is no opportunity to vindicate
one's reputation. When this happens, society as well as the
individual is the loser. For it should not be supposed
that protection of reputation is a matter of importance only to the
affected individual and his family. Protection of
reputation is conducive to the public good. It is in the
public interest that the reputation of public figures should not be
debased falsely. In the political field, in order to make an
informed choice, the electorate needs to be able to identify the
good as well as the bad. Consistently with these
considerations, human rights conventions recognise that freedom of
expression is not an absolute right. Its exercise may be
subject to such restrictions as are prescribed by law and are
necessary in a democratic society for the protection of the
reputations of others.' (Lord Nicholls) (emphasis
added)
The Article 10 right of freedom of expression is not an absolute
right, and will properly be subject to necessary restrictions in
order to protect (where appropriate) the rights of the individual
(though as Lord Nicholls makes clear, the rights of the individual
and society overlap here). Article 8 provides that 'Everyone
has the right to respect for his private and family life, his
home and his correspondence.'
As Lord Nicholls points out, the issue of reputation protects
both the 'individual and his family'. The right to
enjoy your family life and home cannot survive the publication by a
national newspaper of serious allegations which the new Qualified
Privilege defence robs you of the right to rebut. One of the
long-established definitions of defamatory words are words which
would tend to cause others to shun or avoid you (Youssoupoff
v Metro Goldwyn Mayer) [1934] 50 T.L.R. 58 at 57 C.A., or
cause you to be excluded from the society of your fellow men
(Villiers v Monsley) [1769] 2 Wilson 403 at
404. If your right of privacy is to protect your home life,
has that right not been infringed if allegations about which you
can do nothing rob you of the society of those around you, your
ability to work in your chosen trade or profession, and your
ability also to provide for your family?
THE SECOND REASON – THE GRANTING OF SUCH RELIEF WOULD 'SUBVERT'
THE BALANCE BETWEEN THE RIGHT TO REPUTATION OF THE CLAIMANT AND THE
RIGHT OF FREEDOM OF EXPRESSION OF THE DEFENDANT
Gray J’s reasoning on this point is difficult to summarise, so I
shall quote in full:
'Moreover the purpose of the various defences available
under English domestic law, including in particular the defence of
Qualified Privilege, is to strike a balance between the right to
reputation of the claimant and the right to freedom of expression
of the defendant. If I assume that in the present case the
Defendants succeed in their defence of Qualified Privilege, it
appears to me that it would subvert that balance if nonetheless the
Claimant were able to obtain a declaration of falsity.
Moreover, the defence of Qualified Privilege having succeeded, the
Claimant would have no legal right to any redress under the
domestic law of defamation.'
Lord Hobhouse said in Reynolds; 'There is no
human right to disseminate information that is not true' (emphasis
added). The problem is, with great respect to Lord Hobhouse,
that the right to do that very thing is now enshrined in the
Reynolds defence. The defence of Qualified Privilege,
extended in Reynolds to the media, now does give
immunity for the publication of false and defamatory statements (as
Lord Steyn) accepted in Reynolds. Do we
really want to leave the claimant with 'no legal right to redress
…' in the light of the concerns expressed by Lord Nicholls as set
out above?
THIRD REASON – THE 'FLOODGATES' ARGUMENT
Gray J was concerned 'that in every case where a defendant
has a viable defence of Qualified Privilege, the Claimants would
(if so permitted) add a claim for a declaration of falsity.
The newspaper would then find itself on the horns of a dilemma:
whether to concede falsity to a perhaps unworthy claimant or
whether to spend possibly considerable sums of money resisting the
claim for a declaration. As has been remarked, the cost of
defending defamation claims can have the affect of blighting the
right of the media to freedom of expression.'
As Gray J points out in his subsequent paragraph,
'declaratory relief is always discretionary'. The
law of libel is familiar with this, since (as
Gatley points out at paragraph 25.1.7) the court
must already apply the equitable maxim 'he who comes into equity
must come with clean hands' where injunctions are concerned.
I have little doubt that judges of the experience and discernment
of Gray J would be able to exercise this equitable jurisdiction in
a just way.
However, there is another fundamental equitable maximum, which
is first in the list of the maxims as set out in
Snells' Equity and perhaps the most
ancient, that 'Equity will not suffer a wrong to be without a
remedy'. The resolution of libel proceedings where the
only issue before the court is the conduct of the journalist/media
in deciding to publish allegations against the claimant leaves the
claimant wholly without a remedy – as Gray J points out in his
previous paragraph. As the House of Lords observed in
Reynolds, not only is this an injustice to the
claimant whose reputation has suffered, society as a whole also
suffers.
FOURTH REASON – DETERMINING AN APPLICATION FOR DECLARATION
WOULD REQUIRE EVIDENCE AND ARGUMENT
In the light of the contents of the defence in
Loutchansky it appeared to Gray J 'to be highly
unlikely (to put it no higher) that the Court would in the exercise
of its discretion grant the declaration sought in the absence of
full evidence and argument in relation to the truth or falsity of
the imputations complained of, particularly in circumstances where
it is to be anticipated that the Claimant would no doubt
(reasonably from his perspective) seek to make worldwide use of any
declaration granted by the English court.'
It is difficult to see why making use of such a declaration, if
it is justly accorded, is any reasonable basis for refusing
it. However, Gray J observed in the previous paragraph,
'The cost of defending defamation claims can have the effect of
blighting the right of the media to freedom of
expression'. Is it really right to say to an individual
whose personal and professional life has been ruined that his right
to restore a lost reputation must be sacrificed in order to keep
down the overheads of some of the richest and most powerful
entities in the world? Where can an unjustly accused
individual go to protect himself from the might of the media
corporation other than to the courts?
CONCLUSION
The legitimate purpose of the Reynolds defence
is to allow the media the benefit of its Article 10 rights, namely
to be able to show that it was (if acting responsibly) not at
fault in publishing allegations which are a matter of public
interest. Accordingly, when they have established that lack
of fault on their part, they are absolved of legal liability
to the subject of those allegations. The rationale of the
defence of Qualified Privilege as it is to protect occasions when
the maker of a defamatory and untrue statement can do so
'without incurring liability'. That purpose need not
be defeated by permitting this jurisdiction.
To leave matters there, however, is to defeat the whole object
of libel proceedings which is both to restore the individual's
reputation and to inform the public where untrue allegations
have been communicated to them to the detriment of that
individual's reputation. Do we really want to delegate to the
media the unchallengeable role of arbiter of how the truth will be
perceived? The jurisdiction of a Declaration of Falsity has
clearly been sanctioned by Parliament in the new Defamation
Act. Its denial ignores the balance between the media's
rights given by Article 10 and those given to an individual under
Article 8. This jurisdiction should be adopted by the courts
for all libel actions in order both to restore to the law of libel
its very purpose and to end an indefensible anomaly.
Jonathan Coad
March 2003
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