Lord McNallys 2012 Speech - Essay Example

Lord McNally’s Speech and its Impact on the Passing of the Defamation Act of 0 Introduction While much of Western civilisation predicatesits system of law on the notion of freedom of the individual, particularly relative to speech and conduct, the law has also been built to contain certain protections as well. Just an individual claims to have the right to free speech, for example, an opposing individual has the equal right not have slanderous words or deeds thrust at them without a proper venue for defense. It is out of concern for the latter that the United Kingdom, and indeed most other Western based nations, has long had laws on the book protection individuals and corporations from defamation of character. Conversely, those same laws are designed to punish any individual or corporate entity that chooses to openly defame another with reckless abandon and with seemingly no concern as to the potential consequences. Over the years, however, the existing Defamation Act in the UK was deemed to be largely ineffective by some, and counterintuitive by others1. It became apparent by many in parliament, and indeed by leaders of British society, that a more enhanced Defamation Act was necessary. This would be one that would clarify what components need be present to constitute libel, in an effort to reduce rising litigation costs and baseless lawsuits. At the same time, protections would need to be maintained so that the intent of the defamation clause was maintained and individual rights are protected. As a result of this needed change, Lord McNally bought the matter to a head when he gave his speech in 2012 calling for change. It is from the spirit of this speech, and the new Defamation Act of 2013, that this report is generated. 2.0 Discussion 2.1 State of Defamation Law in the UK prior to 2013 Prior to the newly drafted Defamation Law of 2013, many in the United Kingdom claimed that existing legislation was too broadly worded, creating a plethora of meaningless litigation that was burdening down the judicial system. It has been said that the law prior to 2013 favoured the right to reputation2. Free speech was often put aside in exchange for the right of the individual to maintain his or her own reputation regardless. This created a situation whereby individuals in UK society became fearful of what they said out of the reality that they could be be liable for civil, and in some case criminal, penalties under the exiting UK Defamation law. Prior to 2013, individuals did not have to necessarily demonstrate harm based upon statements made by another individual or corporate entity. As such, if words or actions were demonstrated that had the potential to harm another person or corporation, then action could be bought against the person making these claims, regardless of whether or not they actually amounted to anything substantial or worth noting. Whereas the new legislation stipulates that a person must exhibit serious harm as the result of words said about them, the law prior to 2013 made no such stipulation3. 2.2 Key Components of Lord McNally’s 2012 Speech While the need for a new rendition of the Defamation Act in the UK was apparent to many, perhaps nothing ushered in this change more than Lord McNally’s speech before the British Parliament in March, 2012. McNally’s speech was well timed, as it highlighted many of the key points regarding defamation as expressed by the general public. In essence, it was just various ministries that were become leery of existing UK law4. There was a growing sentiment and rising distaste in many segment of British society that necessitated a serious look at reforming the existing law. This is the context of Lord McNally’s speech before Parliament, as he sought to highlight these grievances and make a fervent plea for much needed clarification and new language to be written into what would become the Defamation Act of 2013. McNally issues his speech in direct response to the current movement taking place by the Parliamentary Join Committee to draft a new defamation law. This committee was chaired by Lord Mawhinney, and Lord McNally used his time before various members of parliament to reiterate key reasons why the law was in desperate need of reform. In so doing, he affirmed the reality that many individuals and corporations throughout British society no longer believed they were truly granted the right to free speech, as the fear of litigation had superseded that mindset throughout much of society. Lord McNally contended that citizens need to feel that they had the right to speak freely and openly, without necessarily having to worry about issues of censure or, even worse, the threat of being subject to libel proceedings5. He hammered home that the point that this very issue cuts to the core of what it means to be a democratic society. Without such freedom, his speech demonstrated that this freedom of speech would slowly erode away and the voices of the majority would be silenced in the face of the minority who could simply bring civil proceedings against anyone that they desired to censure. Establishing these key principles, Lord McNally initially launched into an explanation of what many members of Parliament feel was lacking in the existing law, in addition to what public research had revealed about the issue as well. He felt that existing defamation law on the books needed to be rebalanced to be more in favour of the principle of freedom of speech, thereby reducing the reality and threat of lengthy and expensive legal proceedings that were currently pervasive throughout much of the UK legal society. At the same time, Lord McNally made the point very clear in his speech that defamation laws were certainly necessary and must remain. Individuals and corporations need to be able to protect their reputation in a realistic manner, so as not to fall victim to serious harm at the hands of the words of another individual6. It is this ‘serious harm’ clause that was lacking in existing UK defamation law, and formed a great basis for the current speech Lord McNally was issuing to Parliament. The crux of the speech is to issue a thorough explanation of why this rebalancing is needed. Both ends of the spectrum, both the right to free speech and the right to not have one’s reputation tarnished, were not being adequately met by existing legislation. As such, Parliament needed to act decisively in the form of the new law that was aimed aimed at reforming existing law. The most important point that Lord McNally begins with is the call for a new requirement that a specific requirement be introduced into the defamation law that requires a statement made against an individual to have resulted in substantial harm. If this substantial harm provision was not met, then libel cannot be proven and, as such, no action should be taken by the court. This speech makes it very clear that this statement being written in the new law is in direct response to the countless claims of defamation being tied up in court today, most of which are completely unfounded7. By rewording the defamation law and making the substantial harm concept form the basis of burden of proof, the creator of the new law hope to greatly minimise the number of cases being bought to trial. The fact is that the existing legislation simply had no such ‘burden of proof’ written into it, so courts were duty bound to receive and hear even the most trivial defamation cases that were bough before them. This resulted in much waste of time, and proved quite costly to the taxpayers in the end as well. Lord McNally also used his speech to answer some of the potential critics who said the language of ‘serious harm’ was too broad and could be misinterpreted by many affected parties. To answer this, he covered a two-pronged test that was designed to measure whether or not serious and substantial harm had truly been encountered against any individual claiming that they had been the victim of defamation. Again, this reiterated that trivial claims of defamation would no longer be encouraged under this new Act. 2.3 Need for Substantial Harm Clause As Lord McNally clearly mentioned in this speech before Parliament, existing legislation governing what constituted defamation was too broadly written. Courts had little choice but to hear nearly any case that was bought against another individual. This was, in a sense, insidious and the public, as well as various ministers, felt that when reforming the law something should be written into the legislation minimising the types of defamation cases that could even be tried. The specific statement in the 2013 act reads: ‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant’. While this statement was not contained in previous legislation, its intent was implied. Critics of the new law, in fact, argue that defamation cases were only raised by individuals who felt they had been wronged in some way or another. It is that ‘feeling’, however, the bought on the need for the serious harm clause. Individuals now must prove that such harm either exists, or has the potential to exist, before they can bring a case to court. Because of this statement, there are some specific examples cited of individuals that would find it difficult to bring defamation cases against another. One such example is an individual who claims defamation, but he or she already has a bad reputation8. As such, it would be difficult to prove that that statements said about them directly harmed their reputation, as opposed to any of a number of other instances that likely caused equal or greater harm to said reputation in the first place. Another example of why this statement was needed rests in the reality that many statements are published in publications that have a limited geographical reach. Many clerks argue that the new law would make it difficult for a claimant to sue for defamation if the publication was limited in scope and was published in an area that the claimant him or herself is not even known in. If this were the case, then serious harm could not be proven, It is for cases like these, of course, that the Defamation Act of 2013 seeks to irradiate and free up the court system of trivial cases that are bought before it9. This statement was also needed in order to eliminate the cases of defamation raised in incidences where the statements made were reasonably construed to be simply one off vulgar statements made in the heat of the moment. It such cases, it can be reasonably assumed that all parties will quickly forget what was said, that a majority of the community would never hear the words or read them, and that no serious harm would result. Under existing law, of course, there was no such provision so individuals who had anything remotely negative said about them in a public context could bring a defamation case against another person. Many legal experts concur that the most important edition to the defamation law is the language include that clarifies section 1. This states: ‘For the purposes of this section [1], harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serous financial loss’. Where previous defamation laws did not adequately define what proof needs to exist to win a defamation case, the new law goes into clear specific. Naturally, many claim that the law is still too broadly worded, but current commentary agrees on certain points and principles in this regard10. In consideration of a company that operates on a for-profit basis, this clause details certain claims that the company must include in its letter to the court claiming defamation. They must show that the statement(s) made have caused, or are likely to cause, the company as a whole a great deal of financial loss. They must also be able to quantify the loss and show that the loss is serious in nature11. Naturally, the larger the company (body) is, then the great extent to which the damages would result must be proven. Coca-Cola, for example, would not likely with a defamation suit if the damages resulted in a loss of a few thousand pounds. The law also stipulates that if the claimant does not stipulate how it has been seriously harmed, then the defendant has the right to insist that such claims be spelled out prior to the case being heard. Because of this provision, it is likely to be difficult for many companies to sue for defamation. In actuality, the 2013 law is likely to decrease the number of cases being bought by corporations, which is possibly one of the intentions behind the reform efforts12. This could result in companies or individuals feeling that they have more freedom to speak about corporations without being fearful that a defamation action will be bought against them. 2.4 Need for Early Resolution and Cost Control in Defamation Cases While defamation laws are certainly important, and they certainly should be permitted in cases where they are warranted, the existing number of cases being bought before the British judicial system was simply becoming unmanageable. One of the functions of the new law is to encourage both parties to seek an early resolution to their issues, prior to actually bringing the case to trial. There are numerous ways to accomplish, including a retraction of the statements made, a public apology, or an acknowledgement that the statement did not actually cause serious harm. Perhaps the words were said in the heat of the moment, were not really overheard or read by anyone remotely associated with the affected party, or potentially in the end were actually true and did not alter the reputation of the individual in the first place. In addition, the new law contains specific language that relates to what constitutes defamation and what does not. To this end, even if two parties cannot resolve their differences, the case may be tossed out before it is ever heard regardless if the system does not see any true basis for defamation to be argued in the first place. The ned for an early resolution to cases stems from the exploratory committee report conducted in 2012 that forms the basis for the 2013 law. As part of a cost control measure, it was determined that an early resolution to defamation proceedings was preferable and should be openly advocated for. Proposals were sent out for making this a part of the language in the new law, and received a great amount of support. The aim is to have a significant impact in terms of reducing court costs associated with most defamation cases, and to encourage settlements outside of court13. A recommendation made, that is also encouraged by the new legislation, is to encourage the use of mediators to help affected parties resolve their disputes. 2.5 Introduction of an Online Intermediary Acting as a Liaison Officer In consideration of the language requesting a renewed focus on early resolutions to defamation proceedings, the law introduces an online intermediary that is designed to act as a liaison officer for such cases. The criticism of the old law is that many defamation cases were baseless and trivial, yet there was no mechanism to deal with them aside from going to trial. There was no encouragement to resolve differences outside of court, and even cases where serious harm could not be proven, the case was forced to go to trial. As discussed, this resulted in a great waste of time and money, and severely increased the burden on an already overworked and taxed judicial system. With the Defamation Act of 2013, intermediaries can be assigned to defamation cases that work to settle the case before actually going through the court system. If this can be accomplished, a great deal of time and money can be saved, on the part of all affected individuals. This brings out a grey area of the new legislation in actually dealing with corporations. There are differing views about the manner and extent to which corporations can actually make claims for defamation. The law does seem to make the point that corporations can be treated as individual in terms of defamation, as they certainly do have a reputation that they deserve to be able to protect. This entails the certain truth that they deserve protection under the law that enables them to not have their name defamed, and they should be permitted to make allegations should feel that these right have been violated. In addition, many argue that the damages that can be caused by such allegations of defamation can certainly affect employees and shareholder for the company in question. This, in turn, can be taken to mean that a corporation alleging defamation can, in fact, impact all of society. An example of this is reduced earnings as a result of serious harm caused by the untrue statements of another, leading to a decrease in pension fund investments. As such, the law stipulates certain areas that corporations can bring about defamation action, in a similar fashion to allegations that are made by individuals. In the end, however, the same language of the law applies equally to both corporate entities and individuals. A corporation must be able to prove that serious harm to their reputation occurred as a result of the statements made by another company or individual. This can be quite difficult to prove in many instances, because a corporation is much more complex and involved than one individual. In essence, the statement made would have to be so perverse as those words alone caused specific harm to a corporation alone. It is rather difficult, many would argue, to for a large corporate entity to prove that they were seriously harmed on the basis of one statement alone. In the end, however, coronations do have the same right to be able to defend their reputation as individuals have, so the Defamation Act of 2013 applies equally well to them. 2.6 Ability for a Corporation to Bring Defamation Action One grey area of the new legislation is actually dealing with corporations. There are differing views about the manner and extent to which corporations can actually make claims for defamation. The law does seem to make the point that corporations can be treated as individual in terms of defamation, as they certainly do have a reputation that they deserve to be able to protect14. This entails the certain truth that they deserve protection under the law that enables them to not have their name defamed, and they should be permitted to make allegations should feel that these right have been violated. In addition, many argue that the damages that can be caused by such allegations of defamation can certainly affect employees and shareholder for the company in question. This, in turn, can be taken to mean that a corporation alleging defamation can, in fact, impact all of society. An example of this is reduced earnings as a result of serious harm caused by the untrue statements of another, leading to a decrease in pension fund investments. As such, the law stipulates certain areas that corporations can bring about defamation action, in a similar fashion to allegations that are made by individuals. In the end, however, the same language of the law applies equally to both corporate entities and individuals. A corporation must be able to prove that serious harm to their reputation occurred as a result of the statements made by another company or individual. This can be quite difficult to prove in many instances, because a corporation is much more complex and involved than one individual. In essence, the statement made would have to be so perverse as those words alone caused specific harm to a corporation alone. It is rather difficult, many would argue, to for a large corporate entity to prove that they were seriously harmed on the basis of one statement alone. In the end, however, coronations do have the same right to be able to defend their reputation as individuals have, so the Defamation Act of 2013 applies equally well to them. There were actually some that argued that previous law in the UK was too lenient in permitting corporations to bring defamation action against others and, as such, language should be written into the new law which outright forbade this practice. In the end, however, the committee report drafting the new law that this action would not be appropriate. In actuality, there were many that felt to forbid corporations from seeking damages related to defamation wold actually go against certain principles contained in the European Convention on Human Rights. 3.0 Conclusion In a democracy, freedom of speech is essential to the maintenance of certain liberties and a feeling of independence. Individuals from all walks of life need to feel that they not only have a voice, but that their voice has the potential to be heard. This must take place free from fear of censure, and certain free from the fear of civil litigation. At this same time, this reality must be tempered with the reality that people have an equal right to defend their reputation and to not have their image tarnished by the published or vocalised words of others. As such, defamation laws are certainly necessary, but they must be properly constructed. As demonstrated by previous laws in the United Kingdom, this balance was tilted in favour of those seeking to be compensated for words said about them, regardless of whether or not their claims were actually justified15. This was begin to create a fear in society that limited the freedom with which individuals felt that they could speak what was on their mind. As such, members of Parliament saw fit to modify existing law and rebalance the spirit of the legislation to give freedom of speech back to the people. In end, defamation laws are a double-edged sword. On the one hand, it is often difficult to prove that the words of another individual directly inflicted serious harm on another. On this hand, it is almost equally as difficult that those same words were harmless in the end. The law, however, is in a better state today as a result of recently installed Defamation Act of 2013. Bibliography D Ardia, ‘Freedom of Speech, Defamation, and Injunctions’ [2013] 42. 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