The Law of Tort - Essay Example

? Law of Tort Defamation is defined as a tort that prevents an individual from undergoing loss of reputation. It achieves this by disallowing the publishing of information that could result in undesirable attention from others. Defamation has also been described as the publication of a statement that could harm a person’s status or cause harm to one’s sense of worth (Caldwell, 2008, p. 107). The law of defamation attempts to balance the freedom of speech against the interests of an individual. In the past a disproportionate amount of damages had been awarded in defamation cases. This had served to misrepresent the amount of protection that a person could reasonably anticipate (Harpwood, 2008, p. 369).It is the considered opinion of some scholars that these conflicting interests do not admit of any balancing. Article 8 of the European Convention on Human Rights deals with the right to privacy. The right to freedom of expression is dealt with under article 10 of the European Convention on Human Rights. The Human Rights Act 1998 requires a fair balance between these two contesting needs. The presence of a serious social requirement is essential for limiting freedom of speech. All the same, UK privacy case law has been seen to favour the right to privacy. This causes substantial commercial and practical difficulties. Thus, book publishers and photo journalists face considerable difficulty in their work. Thus, in Cream Holdings Ltd and others v Banerjee and others the lower court granted an injunction. This was aimed at suppressing information regarding the corrupt practices in vogue in the Cream Holding Ltd. On appeal to the House of Lords, this decision was reversed. However, considerable difficulty had to be undergone by the defendant, in order to bring these corrupt practices to the notice of the public. In this ruling, the House of Lords took cognisance of the fact that the issues were of serious public interest (Cream Holdings Ltd and others v Banerjee and others, 2004). The cost of a defamation suit is very high and this tends to pressurise both the parties. Moreover, such economic pressure could prevent the publication of defamatory material. However, people from the poorer sections of the society would find it difficult to claim against defamation, due to the high cost involved. These drawbacks to the English legal system have resulted in several cases being filed against the UK in the European Court of Human Rights (Harlow, 2005, p. 128). In defamation cases, public funding is not provided. This makes it difficult for an individual, with limited means, to defend an action initiated by a multinational corporation. This was the unfortunate situation in McDonalds v Steel and Morris. This unfavourable situation has been rectified to some extent by the introduction of conditional fee arrangements. Due to this arrangement, a much greater number of people have been enabled to make defamation claims (Harpwood, 2008, p. 397). Thus, in Dering v Uris, the jury awarded a nominal amount as damages to the claimant. Dering had been a physician at the infamous Auschwitz during the Nazi regime. It had been proved that Dering was guilty of serious war crimes. However, he successfully established that some of the accusations made against him by Leon Uris, were defamatory and false. Similarly, in Plato Films v Spiedel a trifling amount was awarded as damages for similar reasons (Harpwood, 2008, p. 397). Thus, in Hamilton v Al Fayed, the Court of Appeal upheld the ruling of the trial court judge. The latter had not awarded costs orders against them, as per the provisions of section 51 of the Supreme Court Act 1981. An instance where a very high cost was incurred, related to that of Taylforth v Metropolitan Police Comr and The Sun Newspaper. In this litigation, the claimant had to pay around ?500, 000 as costs, for a hearing that lasted 11 days. Furthermore, a libel claim initiated by the Body Shop’s Anita Roddick, resulted in a cost of ?1 million to the claimant (Harpwood, 2008, p. 370). In Reynolds v Times Newspapers Ltd, a former Prime Minister of Ireland initiated legal proceedings for libel against the defendant. The latter had published a description of the facts leading to his resignation. The court disregarded the claims of the plaintiff and ruled in a manner that supported the defendant. In fact, this judgement was aimed at protecting journalism that had as its objective, the interest of the public (Reynolds v Times Newspapers, 2001). Furthermore, in Jameel v Wall Street Journal Europe, the House of Lords opined that the press was obliged to spread information about issues that involved the public interest. The press was also expected to make sincere efforts to provide such information to the public. Consequently, it had to be seen whether any published matter was in the interests of the public (Jameel and others v Wall Street Journal Europe, 2006). In the UK, the right to reputation is accorded greater importance than freedom of expression. This is an unwelcome trend and on many occasions it has limited media reporting on issues having grave public interest. Thus, the decision in Duke of Brunswick v Harmer, constituted a ruling that was a disproportionate and unnecessary restriction on the freedom of speech (Duke of Brunswick v Harmer , 1849). The extent to which the law on defamation protects the people cannot be assessed. This is due to the fact that such claims had been limited to the rich. This restriction was the result of the high cost involved in suing for defamation. The lawyers representing the litigant charge enormous amounts as legal fees. They do this on the grounds that a defamation claim is very complex and difficult to establish. In the absence of public funding for such claims, the litigant has to bear the legal costs, which are very high. A fair balance between freedom of expression and privacy has not been achieved in UK law. There is a distinct bias towards privacy, even at the cost of limiting public interests. List of References Caldwell , R. (2008). Guide to the Law of Tort. Straightforward co Ltd. Cream Holdings Ltd and others v Banerjee and others, UKHL 44 (2004). Duke of Brunswick v Harmer , 14 QB 185 (1849). Dering v Uris (no2), 2 QB 669 (1964). Hamilton v Al Fayed (Costs), EWCA Civ 6651 (1999). Harlow , C. (2005). Understanding tort law. Sweet & Maxwell. Harpwood , V. (2008). Modern Tort Law. Taylor & Francis. Human Rights Act (c. 42). (1998). Her Majesty's Stationery Office. Jameel and others v Wall Street Journal Europe, UKHL 44 (2006). McDonald's Corporation v Steel & Morris, EWHC QB 366 (1997). Plato Films v Speidel , AC 1090 (1961). Reynolds v Times Newspapers, 2 AC 127 (UK House of Lords 2001). Supreme Court Act (c. 54). (1981). Her Majesty's Stationery Office. Taylforth v Metropolitan Police Comr and The Sun Newspaper (unreported) (1994). The Convention for the Protection of Human Rights and Fundamental Freedoms. (1950). Read More