Does the Law of Defamation Strike a Fair Balance Between the Protection of Reputation and Freedom of Expression - Essay Example

Does the Law of Defamation Strike a Fair Balance Between the Protection of Reputation and Freedom of Expression? I declare that the material contained in this these has not been used in any other submission for an academic award and was produced solely by me other than where explicitly and clearly attributed to other sources. Acknowledgements Table of Contents Introduction 2 II. A Review of Literature 3 III. The Law of Defamation 8 A.Overview 8 IV. Analysis 17 V. Conclusion 19 Bibliography 21 Introduction We currently live in a tumultuous era with the threat of terrorism, war, the proliferation of nuclear weapons and any number of other issues to which the public seeks information. The public naturally looks to the media to provide this information. The law of defamation has a greater impact than any other area of the law, on what and how this information is reported to the public.1 The law of defamation holds the publisher of information responsible for the accuracy of the information revealed. In the absence of the law of defamation, reputations would be harmed without remedies. However, the law of defamation must be framed so as to allow freedom of expression so that information released to the public has substance.2 It is therefore necessary that fair balance is struck between the protection of reputations and freedom of expression to allow for the free and fair exchange of information necessary in a democratic environment. In the UK, freedom of expression is a fundamental human right and although reputation is not a specific fundamental human right, it is connected to the right to privacy which is a fundamental human right.3 The right to privacy and freedom of expression are both provided for by the European Convention on Human Rights (ECHR) and are applicable in the UK by virtue of the Human Rights Act 1988.4 There are tensions between the right to privacy and freedom of expression. Complicating matters in the UK, reputation has always been particularly important and the UK has had a difficult time balancing the tensions between the right to privacy in relation to protecting reputational interests and freedom of expression.5 This research study analyses the law of defamation in England and Wales and identifies the extent to which the law of defamation attempts to strike a fair balance between protection of reputation and freedom of expression. It is argued that while there is a recognized need to strike a fair balance between protection of reputational interests and freedom of expression, the historical preference for protection the reputation prevails although in more recent times there appears to be a shift away from this preference. In this regard, this research study is divided into three main parts. The first part of this paper presents a review of literature in which previous studies on the tensions between the law of defamation emphasizing protection of the reputation and freedom of expression are presented. The second part of this paper will analyse the relevant cases. The third part of his paper will present an analysis of the material discussed in the previous two parts of the paper. II. A Review of Literature In a study conducted by Smet of the ECtHR’s decisions on cases involving protectin of the reputation and freedom of expression, it was revealed that momentum has been building in the ECtHR jurisprudence recognizing a conflict between the two rights. In order to resolve this tension the ECtHR has used what has been referred to by Smet as an “impact criterion”.6 The impact criterion refers to an approach in which the court considers: ...the extent to which both rights would be impaired by allowing the opposing right to take preference. 7 With respect to defamation cases, the ECtHR is particularly appreciative of the important role that the press plays as a conduit for public information at its “contribution to ensuring the proper functioning of a democracy”.8 In this regard, the ECtHR is mindful of the “chilling effect” that might occur should freedom of expression be restricted particularly with respect to the press.9 It might be argued that the ECtHR is prepared to test a claim of defamation by assessing whether or not freedom of expression is curtailed. However, this is not the approach taken by the ECtHR. If indeed defamation is established, the court is hesitant to uphold a harsh penalty having regard to the constraints that such a harsh penalty might have on the exercise of the right to freedom of expression.10 Harsh penalties are a serious concern that can result in the chill factor relative to any published material. According to Hurley, the chill factor following from the cost of defamation defences is creating harmful censorship practices in scientific research and reporting. Academics operate in an environment in the UK in which there is a “fear of being sued”.11 As a result of this fear, the British Medical Journal has a lawyer on hand. Many of the written material never makes it to print and many researchers simply refuse to write anything at all. Many of the articles that finally make it to print “have been gutted of any real content”.12 If true, this is an alarming revelation because it suggests that educational material might be incomplete and a lot of scientific information is withheld. This cannot be in the public’s best interest. While, Hurley’s observation appear to be a bit of an exaggeration, censorship to the extent claimed by Hurley is not outside the realm of possibility. Kendrick argues that the law does operate as a deterrent factor13 and so it is not inconceivable that academics and researchers may be hesitant to report research findings as liberally as we would like them to report their findings. Kendrick contends further that freedom of expression is quite often deterred when the speaker is not entirely sure of the truth of his or her “statements”. 14 However, this is not always true, as false statements are always published. The issue however, is not whether or not defamation laws deter free speech or expression, but whether or not defamation laws emphasizing protection of the reputation has a chilling effect on free expression. Lutomski argues that although freedom of speech and expression are inalienable constitutional rights, they can never be absolute rights. It has always been necessary to constrain freedom of speech and expression for national security reasons and for protecting the reputations and “dignity” of all citizens.15 According to Lutomski: Legal limitation of speech is an outcome of a process that itself rests on procedural democratic mechanisms.16 The procedural democratic mechanisms are derived from societal values existing at the time of implementing legal limitations.17 Lutomski also argues that the different approaches to limiting freedom of expression in countries with the same democratic values is attributed to different “differing historical experience and social process”.18 In other words the democratic process that enables freedom of expression also enables limitations on freedom of expression. Societal values will determine what kinds of legal limitations can justifiably limit free speech and expression. For example, in the UK, the emphasis on the protection of the reputation has high value in UK society.19 Historically, reputation was aligned with honour in England and was jealously protected as it was deemed a necessary for the maintenance of social and political order. It was an offence to damage the honour and reputation of a social and/or political leader so that he was lowered in the eyes of his colleagues and those who looked to him or her for leadership.20 In this regard, reputation is viewed as a public right and thus will have significant value in societies such as the British for the maintenance of constitutional administration. In countries such as the U.S. reputation is perceived as vested in private property and all citizens are equal. Therefore free expression would have greater constitutional value in these societies.21 In honour societies such as in the UK, reputation emerged as an important public property requiring protection. The significance of controlling rumours was qualified by the perception that “good men” were vulnerable to ruin on account of “foul rumour”.22 Honour and dignity were significant values in British society. By the 19th century it was firmly established by the judiciary that: ...a good reputation is part of the innate dignity of the individual, which, in turn, is the constituent element of a democratic society.23 The prevailing view was that the reputation was a “public good” and it informs “everyday decisions about community life.”24 A review of literature demonstrates that reputation has always had significant constitutional value in the UK. Initially, it was perceived as significant to the constitutional order and was particularly important to maintaining respect of official and social order. In this regard, reputation was essentially the property of those with higher social and political rank. In time, the reputation of all members of society took on importance. The dignity and honour of all citizens was important to the social and political order. It demonstrated the importance of shared responsibility for maintaining social and political order. The historical development of the value of reputation demonstrates that its significance can change over time and depending on the importance that reputation is perceived to have in maintaining the constitutional order. In the next part of this paper, the law of defamation is studied and its historical progression will demonstrate how the protection of reputation now encroaches upon free expression and vice versa and how the resulting tensions are currently resolved. III. The Law of Defamation A. Overview The law of defamation is calculated to provide protection for the wrongful injury to the reputation. Defamation is only wrongful if it is a false representation of the facts and it is injurious to the person’s whose reputation is impugned.25 Legally, defamation is defined as a publishing a false representation of facts in a way that impugns an individual or an individual’s reputation . In this regard, an individual or his or her reputation is impugned when they are lowered “in the opinion of right-thinking members of the community”.26 Thus the legal definition of defamation contains a number of significant factors. First, the defamation must be published or communicated to others. Secondly, the published information must not only be false, but must also cause harm to the reputation of an individual. Harm to the reputation of an individual will be established by reference to how the individual is perceived by “right-thinking members of the community”. 27 Defamation can occur either by virtue of libel or slander. Libel is actionable per se and refers the printed or broadcast of a defamatory or harmful untrue statement.28 Libel is actionable per se because it is generally believed that once a libellous statement is published, the publication of the statement alone lends itself to proof of maliciousness. Moreover, the libel by virtue of its publication is in permanent form.29 It is important to note that the only protection of free expression here is when the untrue statement does not cause harm to another. This is not only true for libel per se, but for all potentially defamatory statements. Slander takes place where a false statement is communicated in circumstances where others present can hear or somehow receive the false statement. Slander, like libel can be actionable per se. For instance in Say v British Gas Limited, the defendant’s employees disconnected the plaintiff’s gas supply at his business where the plaintiff’s customers were present. The plaintiff’s gas account had been mistakenly deemed overdue. The defendant’s employee stated that the plaintiff had carelessly was not operating his business properly as indicated by his running up a gas bill he had not paid. The defendant’s employee stated that by acting as the plaintiff did, he was not acting honourably.30 It was held that the defendant’s employee made statements that were calculated to lower the plaintiff’s esteem with respect to the operation of his business. In addition, since the statements made by the defendant’s employee indicated that the plaintiff had an outstanding account when in fact, he did not, the statements were untrue. Therefore the defendant was obligated to pay the plaintiff for damages in respect of slander per se/without proof of actual or special damages.31 An underlying theme in the law of defamation is that a reputation is not worthy of protection unless of course the plaintiff has a reputation to protect and that the maker of a potentially defamatory statement did so maliciously. This theme is manifested in the available defences to defamation. In this regard, the available defences to defamation are justification for the statement or the truth of the statement; the statement is a fair comment; the maker of the statement had either qualified or absolute privilege; or the false statement was innocently disseminated.32 Each of these defences either relate to the maker’s intention or the plaintiff’s right to expect his or her reputation to be protected. The available defences are intended to ensure that the plaintiff’s reputation is not protected in a way that is not proportionate to the harm actually caused or intended by the maker of the statement. In ensuring proportionality, the level of damages is also regulated. For instance, in Rantzen v Mirror Group Newspaper, it was held by the Court of Appeal that when giving the jury instruction, the judge is required to warn the jury of the impropriety of awarding damages that are inconsistent with the reputation of the plaintiff and the actual harm to his or her reputation.33 The law of defamation by establishing the parameters of liability and setting out the available defences is calculated to protect reputational interests and by doing so limits free speech so that harmful, untrue statements are not part of the free speech and free expression liberties. In balancing the right to free speech and protection of the reputation, the law of defamation is only meaningful to those who have a reputation to protect. This is manifested by the requirement that an untrue statement must be harmful. Obviously, if the plaintiff has a poor reputation, an untrue statement will not be harmful. For instance, if the plaintiff has a criminal record for arson and is currently serving time for kidnapping and a false statement is made that the plaintiff has an outstanding utility bill, the plaintiff will likely not be able to claim that the untrue statement harmed his already blemished reputation. Even if such a plaintiff is successful in establishing liability for defamation, he or she will likely be less successful with respect to an award of damages. The damages framework under the law of defamation is calculated to ensure that the award of damages is proportionate to the level of defamatory statements. Therefore the plaintiff’s reputation becomes an issue and is under as much scrutiny as the statement alleged to be defamatory. Therefore the link between reputation and privacy is obvious. The question is therefore whether or not there are tensions between the right to the protection of one’s reputation via the constitutional right to privacy and the right to free expression and how the courts deal with those tensions. B. Tensions Between Freedom of Expression and the Right to One’s Reputation Although the law of defamation can act as a deterrent against the malicious publication of harmful untrue statements which are not in the public’s interest, it can also deter the publication of truthful information because of the inhibitive effects of the prospects of an action for damages.34 This is known as the chilling effect and it recognizes that as a result of the prospect of damages for defamation, the public is in danger of missing out on important information of academic, political and social importance. There are two reasons for the chilling effect in English defamation law. First, there is a prevailing view that the individual’s reputation is far more important than the right to free speech and free expression.35 Secondly, the courts have demonstrated a willingness to award damages where statements may not have harmed the reputation of the individual but simply can be damaging.36 As Cane notes: ...the plaintiff in a defamation action need present no evidence that his or her reputation was actually damaged. Conceptually, this is probably a result of viewing reputation as a form of property, and defamation as an interference with that property. An important feature of tortious liability for interference with property is that it is actionable without proof of any actual damage to the property.37 In reality, opinions are expressed and shared in public and this is the underlying premise of free expression as provided for under Article 10 of the European Convention on Human Rights.38 The ability to freely exchange information and opinions is the cornerstone of democratic societies and is important to public participation in the political and decision-making process and forms the basis of Article 10 of the European Convention on Human Rights.39 The ECtHR placed constraints on the ability of the law of defamation to constrain free speech and expression relative to the expression of an opinion. In Lingens v Austria the plaintiff published an opinion about the conduct of the Chancellor of Austria. The conduct was referred to as immoral and lacking in dignity. Under Austria’s criminal code libellous statements could only stand up if they were proven to be truthful. Since the plaintiff had expressed an opinion, it was impossible to prove the truth of his statements.40 The ECtHR ruled that it was entirely important to distinguish between factual statements and value judgements or opinions informed by value judgments. The court also acknowledged that factual statements can be proven but value judgments and opinions cannot be proven. Since it was undisputed that the plaintiff’s opinions were made in good faith and that the truthfulness of his opinions could not be proven, the only available defence under Austria’s criminal code could not be satisfied and therefore encroached upon Article 10 of the European Convention on Human Rights.41 Regardless, the Ministry of Justice in its Draft Defamation Bill 2011 points out that the protection of reputation is compatible with the Article 10 of the European Convention on Human Rights. In particular, the Draft Bill draws attention to Article 10(2) of the Convention.42 Article 10(1) of the Convention provides that “everyone has the right to freedom of expression” and this includes the right to freely express ones opinions and to exchange “information and ideas without interference by public authority and regardless of frontiers”.43 Article 10(2) goes on to provide that: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.44 In incorporating Article 10 of the European Convention on Human Rights, the Draft Defamation Bill points to Article 10(2) and records the freedom of expression is a “qualified right” subject to the enumerated exceptions included in Article 10(2) and the “formalities, conditions, restrictions, or penalties” that are “prescribed by law and are necessary in a democratic society, including...the protection of reputation.”45 Thus the Draft Defamation Bill intends to strengthen the protection of reputational interests and to make it an exception to the right to freedom of expression. Therefore the prominence of the protection of reputational interest will be made a matter of statutory law if and when the Draft Defamation Bill comes into effect. There appears to be a stubborn refusal to yield some aspects of the protection of reputational interests to the right to free expression in the Draft Defamation Bill. However, there was some recognition that there is a need to offer some concessions. For instance in Article 61 it was acknowledged that the ECtHR has established some level of preferences for the protection of free expression.46 This was also acknowledged by Lord Nichols in R v BBC ex p. Pro-Life Alliance. Lord Nichols noted that under the European Convention, political speech has the greatest level of “importance” and therefore constraints on freedom of political speech “need to be examined rigorously by all concerned.”47 The Draft Defamation Bill specifically notes that the right to privacy as contained in Article 8 of the European Convention on Human Rights includes the right to protection of the reputation and as such will be equally protected. 48 The Draft Defamation Bill also acknowledges that the right to privacy is also a qualified right and subject to the protection of the freedoms and rights of others.49 This would obviously include the right to free speech and free expression. However, the Draft Bill failed to specifically recognize that free expression and free speech were exceptions to the right to privacy although it noted that privacy was an exception to the right to free speech and free expression. It would appear however, that despite the UK’s preference for Article 8 in relation to the protection of the reputation, the ECtHR clearly has a preference for Article 10. In Karako v Hungary the applicant was a candidate in the Hungarian elections for 2002 and brought an action against an opposition member who had distributed flyers disparaging the applicant. The matter was dismissed by the District Court on the grounds that the flyer contained a value judgment and that restraints against the free expression of politicians were more liberal. The applicant argued before the ECtHR that Hungary had not protected his rights to privacy pursuant to Article 8 of the European Convention on Human Rights.50 The ECtHR held that it was up to member states to decide how they would protect the right to privacy provided there was an effective system for protection concepts of private life. Moreover, when Article 8 arises, member states are required to take account of the rights contained in Article 10. The court ruled however, that given that the politician was engaged in public life and this was an election period, limitations on freedom of expression would have been a disproportionate interference with the right to free expression. The court went on to state that an individual’s reputation could only be protected as a right to privacy under Article 8 of the Convention where the alleged defamatory statements undermined the applicant’s personal integrity.51 In Von Hannover v Germany [2005] 40 EHHR 1, the ECtHR specifically stated that in striking a fair balance between the right to free expression and the right to privacy: In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.52 At first glance it might be obvious that the right to privacy has a greater individual interest than the right to free expression as it generally serves the public’s benefit. However, upon a closer examination, the right to privacy as an individual right, is also beneficial to the community as a whole especially in relation to the protection of reputational interest. Protecting reputational interest serves as a safeguard against the sharing and publication of unreliable information to the public as a whole. However, at the same time, where the protection is so great that it inhibits free expression, it does not serve the public’s interest. In Ahmed and Others the Supreme Court ruled that in balancing the tensions between the right to free expression and the right to privacy where an attack on one’s reputation is alleged the proper approach to be taken is to look at the nature of the publication. The Supreme Court specifically ruled that: The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. But, where publication of the photographs and articles was simply intended to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, it could not be deemed to contribute to any debate of general interest to society. In that situation freedom of expression called for a narrower interpretation.53 A similar rationale was expressed in Campbell v MGN Ltd. In this case the House of Lords acknowledged that the freedom of expression particularly as it relates to the press and the right to protection of privacy, often come into conflict with one another. Complicating matters both rights are important for civilised society to function effectively and efficiently. However, more often than not, “neither can be given full measure without restricting the other.”54 The House of Lords went on to state, one right will not automatically prevail over another. At the end of the day, the: Question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need.55 It would appear that the UK’s courts have found a viable rationale for continuing with its preference for protecting reputational interests. Article 8 and the jurisprudence of the ECtHR have provided this rationale by asserting that protection of reputational interests form a part of the privacy protection parameters of Article 8 of the European Convention on Human Rights. Arguably, the protection of privacy is no less important than the right to freedom of expression. However, given the significance of the sharing of information and knowledge for the benefit of the public, it is entirely necessary to safeguard against the chilling effect of defamation law. IV. Analysis There is a “delicate” line “between the protection of reputational interests” and maintaining a “healthy legal environment in which a vigorous press can thrive”.56 Balancing these important societal and constitutional mainstays, is particularly significant for the efficient and effective functioning of democratic institutions. In democratic states, the government’s power emanates from the consensus of its citizens whom they govern. If consensus from the public is to have any meaning at all, the public must be “reasonably informed”.57 In turn, if the public is going to be “reasonably informed about the actions of their government and the world in which they live,” it is imperative that the public has “access to the reporting of a vibrant political press.”58 Although, the law of defamation is usually looked upon as nothing more than a civil remedy regulating compensatory damages for injury to the reputation, the law of defamation plays a significant role in ensuring that the public is not only reasonably informed, but also reliably informed. According to Hurley however, the law of defamation is overly intrusive into the right to freedom of expression and free speech. What has occurred is a chilling effect.59 This chilling effect functions to curtail free expression and it trickles down to the manner in which information of social, academic and political importance is reported. If Hurley is to be believed, researchers are reluctant to share the fruits of their research and when they do write and publish their research results it is only after excessive censorship which arguably results in a published report that is not reflective of the author’s initial report. We are therefore left to wonder whether or not there is a fair balance struck between the right to free speech and the protection of reputational interest. As Wright observes of the chilling effect of the law of defamation in the UK, is has a significant restriction on what the “public is able to read and hear” and both in principle and in practice, there is a high degree of uncertainty which brings about a high degree of “caution on the part of the media.”60 As Hurley points out, there is also a lot of caution in academic circles restraining freedom of expression in matters of scientific and educational value. Therefore chilling effect of the law of defamation relative to free expression is detrimental to the public’s interests and demonstrates that there is a need to more fairly balance the tensions between the right to protection of reputational interests and the right to free speech and free expression. The problem is not so much the prohibition against the publication of false and harmful statements, but the right of damages that may be disproportionate to the harm or the intended harm. We can all agree that it does not serve the public interest to allow the free and liberal distribution of false statements and patently false information. However, there should be greater constraints against damages per se and establishing liability in instances where no harm was intended. In other words, the inhibitive effects of the prospects of damages commands reform of the law of defamation so that greater balance is achieved between the protection of reputational interest and the right to free expression and free speech. V. Conclusion The protection of the reputation has historical and social significance in the UK. However, in recent times freedom of expression has become very important as information about current events, particularly threats to national security, politics, the economy and so on have grown in public demand. The historical and social significance of the protection of reputational interest continues to inform much of the law of defamation and quite often to the detriment of free expression. The chilling effect has arguably impacted the level of disclosure used in the publication of information in the press and in some cases the publication of articles by the academia. The courts in the UK have recognized that there are tensions between the right to privacy and the right to free expression as a result of the inclusion of the protection of reputational interests in the right to privacy. In resolving these tensions, the UK’s courts while accepting the rulings of the ECtHR in balancing individual interest against community interest adheres to the concept that freedom of expression is no more important than the right to privacy. Both are views in the UK as important for the proper functioning of a democratic society. Therefore the UK’s court will consider each case on its own particular facts and circumstances. What is clear however, is that where a publication is intended to be informative and engages public debate freedom of expression will be more important than in cases where the publication is clearly an invasion of privacy to simply satisfy public curiosity. Therefore in the latter case, reputational interest will take greater significance than free expression. It can therefore be argued that while the chilling effect remains a serious concern, as case law develops to more fully establish the boundaries of free expression and protection of reputational interests, the chilling effect should dissipate. While historically, the law of defamation did not strike a fair balance between the protection of reputation and free expression, it is slowly moving in the right direction. Bibliography Ahmed and Others [2010] UKSC 1. Baker, R. (2011). Defamation Law and social Attitudes: Ordinary Unreasonable People. Cheltenham, Glos, UK: Edward Elgar Publishing Limited. Campbell v MGN Ltd. [2004] UKHL 22. Cane, P. (1997). The Anatomy of Tort Law, Oxford, UK: Hart Publishing. Draft Defamation Bill 2011. European Convention on Human Rights 1950. Heyman, S. J. (2008). Free Speech and Human Dignity. New Haven, CT: Yale University Press. Human Rights Act 1988. Hurley, R. (October 2009). “The Chilling Effect of English Libel Law.” BMJ 339. Karako v Hungary Application no. 39311/05. Kendrick, L. (2013). “Speech, Intent and the Chilling Effect.” William & Mary Law Review, Vol. 54: 1-58. King v Lake [1667] 1 Hardres 470. Lingens v Austria [1986] 8 EHRR 407. Lunney, M. and Oliphant, K. (2007). Tort Law: Text and Materials, Oxford, UK: Oxford University Press. Lutomski, P. (October 2001). “Private Citizens and Public Discourse: Defamation Law as a Limit to the Right of Free Expression in the U.S. and Germany.” German Studies Review, Vol. 24(3): 571-592. Milo, D. (2008). Defamation and Freedom of Speech. Oxford, UK: Oxford University Press. Pfeifer v. Austria (Application No. 12556/03) ECtHR. http://www.bailii.org/eu/cases/ECHR/2007/935.html (Retrieved 2 April, 2013). Post, R. C. (1986). “The Social Foundations of Defamation Law: Reputation and the Constitution.” California Law Review, Vol. 74: 691-742. Rantzen v Mirror Group Newspaper [1993] 4 All ER 975. Rolph, D. (2008). Reputation, Celebrity and Defamation Law. Hampshire, England: Ashgate Publishing Limited. R v BBC ex p. Pro-Life Alliance [2003]UKHL 23. Say v British Gas Limited [2011] All ER 216. Scordato, M. R. (November 2007). “The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law,” Connecticut Law Review, Vol. 40(1): 165-207. Smet, S. (2010). “Freedom of Expression and the Right to Reputation: Human Rights in Conflict.” American University International Law Review, Vol. 26(1): 183-236. Steele, J. (2007). Tort Law: Text, Cases, and Materials. Oxford, UK: Oxford University Press. Von Hannover v Germany [2005] 40 EHHR 1. Voorhoof, D. and Cannie, H. (June 2010). “Freedom of Expression and Information in a Democratic Society: The Added but Fragile Value of the European Convention on Human Rights.” International Communication Gazette, Vol. 72(4-5): 407-423. Weaver, R. L. and Parlett, D. F. (2005/2006). “Defamation, Free Speech, and Democratic Governance.” (2006/2006) New York Law School Law Review, 57-80. Wright, J. (2001). Tort Law and Human Rights. Oxford, UK: Hart Publishing. Reflective Statement I. Research Plan: The research will investigate the historical and social significance of the protection of reputational interest in the UK and demonstrate how this has shaped the law of defamation. This research will also demonstrate how the law of defamation brings within its ambit the right to privacy which is a fundamental human right contained in Article 8 of the European Convention on Human Rights 1950. This research will also analyse how this right to privacy which also includes the right to protection of reputational interest is juxtaposed against the right to freedom of expression. The research will examine the tensions between the freedom of expression and the right to protection of reputational interests. How the European Court of Human Rights have dealt with these tensions will also be examined and how the courts of the UK have resolved those tensions will also be examined. This research paper will determine whether or not the UK has effectively resolved the tensions created by the law of defamation and the right to free speech. The chilling effect of the law of defamation on free expression and free speech will form an underlying theme throughout this paper. The idea is to determine whether or not the chilling effect can be removed without compromising the right to protection of reputational interests. II. Indicative Bibliography: A number of cases will be used to demonstrate by virtue of empirical evidence how both the UK and the ECtHR have dealt with the tensions between the right to protection of reputational interest and the right to free expression. These case include: Ahmed and Others [2010] UKSC 1, Campbell v MGN Ltd. [2004] UKHL 22, Karako v Hungary Application no. 39311/05, King v Lake [1667] 1 Hardres 470, Lingens v Austria [1986] 8 EHRR 407, Pfeifer v. Austria (Application No. 12556/03) ECtHR and Rantzen v Mirror Group Newspaper [1993] 4 All ER 975. A number of text books will be used to add to the discussion and analysis of the law including Defamation and Freedom of Speech by Milo, Tort Law: Text and Materials, by Lunny and Oliphant, Reputation, Celebrity and Defamation Law by Rolph and others. Journal articles demonstrating previous studies on the chilling effect of the law of defamation and the tensions between the protection of reputational interests/privacy and free expression will also be used. Some of the articles include, Speech, Intent and the Chilling Effect by Kendrick, The Social Foundations of Defamation Law: Reputation and the Constitution, by Post and several others. III. Reflective Statement: With advances in information technology the public generally expects to be able to obtain information quickly and at times contemporaneously with the events. As a result, the opportunities for information to be dispatched erroneously increases. This is understandable as the media operates in a fiercely competitive environment with each media outlet attempting to be the first to publish a story of importance to the public. This was particularly important just after the September 11 2001 attacks on the US. Working under the pressure of time and competition, the opportunities for publishing false information obviously increases. Fully aware of the consequences of publishing false information I wanted to investigate how the law of defamation was adjusting to the times. I took for granted that defamation laws protected the reputation of the individuals but never considered how that might create the chilling factor and how the law responded the chilling effect. This paper was therefore designed to investigate the compatibility of the law of defamation with the information age. It is an interesting area of study since information is a valuable commodity in the 21st century and the right to protection of reputational interests might not be as important as it was in the past. Read More