Reform on The English Libel Law - Essay Example

Reform on the English libel law Introduction The need for reform on the English libel law has been recognized through a proposed Defamation Bill seeking to do away with the “chilling effect” on the right to free expression especially where threats of filing libel suits have been frequent (The International Forum for Responsible Media Blogs, 2010). Because the law itself is incomprehensible and outdated, it chills the speech (The International Forum for Responsible Media Blogs, 2010) and restrains the media from publishing issues involving public interest, scientific or academic matters (Mullis & Scott, 2011, p. 6). However, does the Defamation Bill reflect these concerns? This essay seeks to critique the current Defamation Bill (As Amended on Report, ordered to be printed on 5 February 2013) particularly focusing on Clauses 4, 5 and 6 thereof. The said Clauses provide for some of the defences to an action for defamation. Clause 4 Clause 4 refers to the truthfulness of the imputation which if shown by the defendant to be substantially true, then it may be a defence in an action for imputation (Defamation Bill, Clause 4). Additionally, where there are two or more distinct imputations, the defence of truth will not be diminished if the imputations which appear to be substantially true, those not shown to be substantially true do not significantly injure the claimant’s reputation (Defamation Bill, Clause 4). This clause seeks to substitute the previous common law defence of justification (Shaw & Chamberlain, 2011, p. 49). The defendant must show that the imputation made is ‘substantially true’, a stand of the common law (Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772). Although there is no definition on what is “substantially true,” still, there is no ambiguity as to the meaning of truth (Mullis & Scott, 2011, p. 12, citing the Oxford English Dictionary). The burden of proof is with the defendant to establish the truth as to the imputation made and is an agreeable aspect of the bill (Mullis & Scott, 2011, p. 12). This compels a publisher to determine first if the statement is reasonable or justifiable before publishing the same (Mullis & Scott, 2011, p. 12). A legal responsibility is placed on any person and proper restraints made on the media especially in stating serious allegations (Mullis & Scott, 2011, p. 12). Although it should be the claimant that should have the burden of proof to demonstrate the falsity of an imputation since the former is in a better position to demonstrate such, this is not always true as the facts would wholly rely on the kind of imputation made (Mullis & Scott, 2011, p. 12). The terms “substantially true” and “serious harm” on claimant’s reputation, were not defined in the bill and opens a wide interpretation as to its meaning (Mullis & Scott, 2011). Litigation may likely occur especially on the demarcation between those considered as substantially true and which are not, or those considered as a significant injury to a claimant’s repute (Young, 2011). Further, although the truth may be known, it may nevertheless be difficult to establish (Flood v Times, [2009] EWHC 2375 (QB)), (Young, 2011). There is no criterion to lessen the probability of increasing false information especially as to those which may occur after publication (Young, 2011). It would be hard to comply with the required responsible journalism especially where the imputation was false, but was nevertheless supported by sufficient evidence that the statement was true at the time when such a statement was published by the responsible publisher (Young, 2011). Clause 5 This is the defence of “Honest Opinion” and sets forth the conditions that it must be a statement of opinion; such opinion is of public interest; the “honest person could have held the opinion” based on “a) a fact which existed when the statement complained of was published; and (b) a privileged statement published before the statement complained of” (Shaw & Chamberlain, 2011, p. 49, citing the Defamation Bill). This defence may be overcome by claimant’s showing that the defendant was not stating an opinion, or if the defendant who was not the author thereof, knew or must have known that the author of such statement was not holding an opinion (Shaw & Chamberlain, 2011, p. 49, citing the Defamation Bill). This particular clause supersedes the previous fair comment reflected in common law defence (Spiller v Joseph [2010] UKSC 53). The third condition simplifies the law through a “clear and straightforward test” to avoid complications in the case law (Shaw & Chamberlain, 2011, p. 49). A fact or privileged statement need not be required to be recognisable being determined already from the words being ascribed to (Shaw & Chamberlain, 2011, p. 49). This clause aims to widen the extent of a defence but may still be defeated if the statement was made with malice (Shaw & Chamberlain, 2011, p. 49). In this clause, there is the difficulty in differentiating “fact from comment” (Singh ([2009] EWCA Civ 1075; [2010] EWCA Civ 350; [2009] EWHC 1101). This clause should have been named as ‘honest comment’ having a sounder reflection of the actual experience (BCA v Singh [2010] EWCA Civ 350, at para [142]). This clause exacts fairness or reasonableness, as this may be availed of by a person who merely articulates an opinion which a truthful minded individual could hold even though the opinion was unreasonable (Mullis & Scott, 2011, p. 11). As to the other defences under Clause 5, the defendant does not need to ascertain if the facts are all true as published, on the condition that there is adequate basis for forming an opinion expressed by honest person (Mullis & Scott, 2011, p. 11). As to the criticism of difficulty in ascertaining a fact from an opinion, the same may be established when a reasonable reader recognizes the words or matters in issue as an opinion (Mullis & Scott, 2011, p. 11). Another criticism is the effect that a person allowed to express an opinion based on another’s opinion grounded on false facts, may also rely on such a defence (Mullis & Scott, 2011, p. 12). This should not be the case especially if during the time he conveyed his opinion, he based it on a fact that does not yet exist (Mullis & Scott, 2011, p. 12). This defence must only be applicable to the defendant who honestly believed that in holding an opinion, he based it on the data he knew when he stated his comment (Mullis & Scott, 2011, p. 12). Such a defence would be subjective on one hand and objective on the other (Mullis & Scott, 2011, p. 12). Hence, it is more persuasive if the defendant had the burden to prove that he actually knew the facts he relies on (judgment of Eady J in Lowe v Associated Newspapers ([2006] EWHC 320 [2006] 3 All ER 357, at [74]). An individual must not be allowed to make remarks on the opinion of others or on rumours, nor depend on inexistent facts during the time a remark was made (Mullis & Scott, 2011, p. 12). There is also no assurance that litigation would be lessened with the stringent rule on honest opinion, nevertheless, these strict requirements may dissuade potential claimants or even dissuade publication especially where the legal defences are vague (Young, 2011). Finally under this clause, the word ‘malice’ was avoided being a confusing term (Lord Bramwell in Abrath v North Eastern Railway Co. (1886) 11 App.Cas. 247 at 253) and stressed on the test that an honest opinion is an honest belief (Cheng v Tse Wai Chun ([2000] 3 HKLRD 418 [2001] EMLR 31, (2000) 10 BHRC 525)). Clause 6 This defence involves publishing matters of public interest. The defendant must show that the statement at issue involves public interest, and that he performed responsibly when the statement was published (Shaw & Chamberlaine, 2011, p. 49). It is assumed that the defendant acted responsibly when the published statement reflects a truthful and unbiased description of a discussion (Shaw & Chamberlaine, 2011, p. 49). This clause replaces the ‘Reynolds Privilege’ in the common law defence (Reynolds v Times Newspapers [2001] 2 AC 127). There is no definition as to the meaning of public interest (Shaw & Chamberlaine, 2011, p. 49). Subsection 3 of the clause purposely protects “a responsible publisher” who made an accurate and impartial publication of a described dispute between a claimant and a third person (Shaw & Chamberlaine, 2011, p. 49). This clause also seeks to summarize a “class of qualified privilege” or “reportage” (Al-Fagih [2001] All ER (D) 48). Conclusion The Bill has been unsuccessful in addressing the problems pertaining to the libel law (Mullis & Scott, 2011, p. 16). It trifles with the common law rules, making it appear to be more sympathetic towards freedom of expression, but does little to attain to simplify or reduce attendant cost (Mullis & Scott, 2011, p. 16). Some of the proposed rules are not sufficiently justified and may even increase the cost as well as the complexity of libel (Mullis & Scott, 2011, p. 16). It fails to attain its objectives and to consider the “rights and interests of claimants, defendants and the wider public” to achieve a true reform (Mullis & Scott, 2011, p. 16). It also fails to acknowledge the possibility that individuals may have other options in choosing their source of information or to provide an avenue for claimants to issue their own account of what happened (Young 2011). References Abrath v North Eastern Railway Co. (1886) 11 App.Cas. 247 at 253. Al-Fagih [2001] All ER (D) 48. BCA v Singh [2010] EWCA Civ 350, at para [142]. Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772. Cheng v Tse Wai Chun ([2000] 3 HKLRD 418 [2001] EMLR 31, (2000) 10 BHRC 525). Flood v Times, [2009] EWHC 2375 (QB). Lowe v Associated Newspapers ([2006] EWHC 320 [2006] 3 All ER 357, at [74]. Mullis, A & Scott A 2011, Lord Lester's Defamation Bill 2010: a distorted view of the public interest? Communications Law, Volume 16(1), 6-18. Shaw, R & Chamberlain, P 2011, Libel reform: draft Defamation Bill seeks a legal balance but ignores the costs issue, Communications Law, Volume 16(2), 49-51. Singh ([2009] EWCA Civ 1075; [2010] EWCA Civ 350; [2009] EWHC 1101). Spiller v Joseph [2010] UKSC 53. The International Forum for Responsible Media Blog 2010, Lord Lester’s Defamation Bill – Explanatory Notes, The International Forum for Responsible Media Blog viewed from http://inforrm.wordpress.com/2010/06/30/lord-lesters-defamation-bill-explanatory-notes/ UK Parliament 2013, HL Bill 84 - Defamation Bill (As Amended on Report), UK Parliament viewed on 11 April 2013 from http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0084/lbill_2012-20130084_en_1.htm Young, A 2011, Draft Defamation Bill – A Missed Opportunity? Constitutional Law Group viewed from http://ukconstitutionallaw.org/2011/04/15/draft_defamation_bill/ Read More