English defamation law

Modern libel and slander laws as implemented in many but not all Commonwealth nations, 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 so far back as the reign of Edward I (1272–1307),fact|date=December 2007 though it is unknown whether any generally applicable criminal process was in use. 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.fact|date=December 2007 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 defenses are justification (the truth of the statement), fair comment (whether statement was a view that a reasonable person could have held), and privilege (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 using due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.

Development of English defamation law

Modern libel and slander laws as implemented in many but not all Commonwealth nations, 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 so far back as the reign of Edward I (1272–1307).fact|date=December 2007 There was no distinction drawn between words written and spoken. 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, to say the least, uncertain whether any generally applicable criminal process was in use.

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.fact|date=December 2007 In that case no English authorities are cited except a previous case of the same nature before the same tribunal; the law and terminology appear to be taken directly from Roman sources,fact|date=December 2007 with the insertion that libels tended to [cause?] a breach of the peace; and it seems probable that a not very 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.

English admiralty law

In admiralty law, 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 that 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. A large photograph of Tony Blair above a headline saying "Corrupt Politicians" might be held to be an allegation that Tony Blair was personally corrupt.

The allowable defences against libel are:
*Justification: 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. The defence fails if the statement concerns spent convictions. cite web|url=http://www.yourrights.org.uk/your-rights/chapters/the-right-of-free-expression/defamation---libel-and-slander/index.shtml |title=Defamation - libel and slander |accessdate=2007-06-13 |date=2002-10-21 |work=The Liberty Guide to Human Rights |publisher=Liberty |archiveurl=http://web.archive.org/web/20051123200752/http://www.yourrights.org.uk/your-rights/chapters/the-right-of-free-expression/defamation---libel-and-slander/index.shtml |archivedate=2005-11-23 ]
*Fair Comment: 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.
*Privilege: the defendant's comments were made in Parliament or under oath in court of law or were an accurate and neutral report of such comments. There is also a defence of 'qualified privilege' under which people, who are not acting out of malice, may claim privilege for fair reporting of allegations which if true were in the public interest to be published. The leading modern English case on qualified privilege in the context of newspaper articles which are claimed to defame a public figure is now Reynolds v. Times Newspapers Ltd and Others, 1999 UKHL 45, [ [http://www.bailii.org/uk/cases/UKHL/1999/45.html Reynolds v. Times Newspapers Ltd and Others, 1999 UKHL 45] ] and the privilege has been widened by Jameel v. Wall Street Journal Europe 2006 UKHL 44, which has been described as giving British newspapers protections similar to the US First Amendment. [cite news
first = Frances
last = Gibb
title = Landmark ruling heralds US-style libel laws in Britain
url = http://www.timesonline.co.uk/article/0,,200-2398952,00.html
work = The Times
publisher = Times Newspapers Ltd
date = 2006-10-11
accessdate = 2006-10-11
language = English]

An offer of amends - typically a combination of correction, apology and/or financial compensation - is a barrier to litigation in the courts.

The 2006 case of Keith-Smith v Williams confirmed that discussions on the Internet were public enough for libel to take place. [ [http://www.guardian.co.uk/law/story/0,,1737445,00.html Warning to chatroom users after libel award for man labelled a Nazi] , Owen Gibson, March 23, 2006, The Guardian]

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 using 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.

Aldington v. Tolstoy

In 1989 Toby Low, 1st Baron Aldington 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. [ [http://books.google.co.uk/books?id=zMs6T2csv-AC&pg=PA335&lpg=PA335&dq=Lord+Aldington+e+European+Court+of+Human+Rights.&source=web&ots=GYPdUbHZFK&sig=IWLqyis4J2sVQcPoHHzepXckVmc&hl=en] ] This judgement significantly reduced the level of subsequent libel awards.

The 'McLibel' Case

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 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 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 [cite web| url=http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&key=42244&portal=hbkm&source=external&table=285953B33D3AF94893DC49EF6600CEBD49| title=FOURTH SECTION - CASE OF STEEL AND MORRIS v. THE UNITED KINGDOM| publisher=European Court of Human Rights Portal| accessdate=2006-10-20| date=15 February 2005] 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 lossIn 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.

Right of privacy?

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, 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" [1991] FSR 62] and again recently in the House of Lords 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) that is more 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" ["Tolstoy Miloslavsky v. United Kingdom" (1995) 20 EHRR 442] 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 not 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.

ee also

*"New York Times v. Sullivan", an actual malice standard in the US in accordance with their 1st Amendment
*"Hill v. Church of Scientology of Toronto", rejection of the US rule

Notes

Further reading

*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
*cite book | authorlink=Adam Raphael | first=Adam | last=Raphael | title=My Learned Friends: an Insider's View of the Jeffrey Archer Case and Other Notorious Actions | id=ISBN 9781852270940 | date=1989