Tort Law and Advice to Samvat - Case Study Example

Tort law Advise Samvot, who are contemplating defamation actions against Melanie Prim, The Mail on Sunday, Geoffrey Wheatcroft, and BBC Radio Two Advice to Samvat The charity organisation has called on the U.K. citizens to atone for U.K. Government’s complicity in the torture meted out to their asylum inmates in their home countries of North Africa and Asia by giving the organization liberal donations to wash off their tainted hands as a share of atrocities committed by their Government. The sweeping claims of the organisation and counterclaims of the prospective defendants both appear ill founded. Even response to the appeal made to the U.K.citizens is any body’s guess for it has been made in such bad taste and as if the people of the country are credulous. However, at the same time the Samvat is agitated against the counterclaims of the prospective defendants for their alleged defamatory statements against them In U.K, freedom of speech and therefore freedom of communication is enjoyed by the media where these prospective defendants come from. As there is no written constitution in U.K., the courts play a role of guardians of this freedom on the part of the media though they are not bound to do so under any law. The courts do play a role to achieve a balance between the freedom of speech and protection of reputation of individuals or organisations. As there is no constitution, the right to freedom of speech exists in common law or statute that includes Human Rights Act 1998. Law of defamation must see that freedom of speech does not outweigh the interests of the individual. There is no jurisdictional restriction to make libel claims from one corner to any part of the world. However, those who can afford the luxury of filing suit for defamation only can proceed for the costs of maintaining a suit and meeting the legal fees are prohibitive. And if the suit is not decreed in their favour, those who have funded the claimant for filing the suit also will be held liable for costs as there is no pubic funding available for these matters. Juries will be called to hear the claimants and defendants and the work that attorneys have to undertake will be highly complex justifying their high fees. However, judges have discretion to refuse to order costs. For example, in the case of libel claim of Neil Hamilton against Mohammed Al Fayed, the Court of Appeal upheld the trial court’s refusal to order costs as justified by the provisions of section 51 of Supreme Court Act 19811 At the same time, the claimant was asked to pay £ 500,000 to the defendants after a trial of 11 days in the unreported Taylforth v Metropolitan Police Comr and The Sun Newspaper (1994) European Court of Human Rights have also been in favour of the media while interpreting article 10 of the Human Rights Declaration which lays down more explicitly limits of freedom of speech less liberally than that are available under English law. Hence, te Human Rights Act of 1998 has been amended by incorporation of article 10. In Derbyshire CC v Times Newspapers2, it was held that the Government body’s right of suing for libel was affected and the House of Lords later confirmed that article 10 was not necessary to be invoked and the common law reference alone would suffice. However, the article 10 was recognised in later cases by both courts of appeal and the House of Lords as part of the common law relating to freedom of expression. The relative cases were, Rantzen v Mirror Group Newspapers 3 and Elton John v MGN Ltd 4 wherein the jury’s award of damages had been questioned. English court had awarded damages of £1.5 million in favour Lord Addington to be paid by Count Nikolai for issuing pamphlet accusing the lord of his wartime involvement resulting in deaths of 70,000 Cossacks and Yugoslavs. The European court held that damages were excessive and it violated the Count’s freedom of expression.5 These case laws are brought to the claimant’s attention just in case the claims are unfounded and possible award of damages on them for vexatious claims. Now to examine whether in these cases, there have been actionable claims for defamation, defamation is defined as consisting of publishing defamatory statement, which refers to the claimant who can be identified without lawful basis. The statement must be published for the consumption of third parties other than the claimant alone. Thus if the defendants send some defamatory letter to the claimant it will not amount to defamation even if he chooses to show to others because it is the claimant who publishes to third parties and not the defendants. The defendant has the defence of volenti in such cases. In Hinderer v Cole (1977) unreported, claimant’s brother-in-law sent him a letter defamatory in nature. Though he showed the letter to other people, it was held to be not act of defamation and hence award of damages was refused except for £ 75 since the letter had a mention likening him to an MP John Stonehouse who stage-managed his death from drowning in order escape from debts. Further, every fresh publication will give fresh cause of action. Further, the claimant must choose the particular office bearer of organization to be sued who will be in a position to pay the damages awarded if any. Instances of publication that can be tried for defamation include the following: speaking in a loud voice against the claimant so that others can over hear and statement that is followed by repetition of some one else. Here in the instant case, there have been television broadcast and newspaper publications and hence they qualify for defamatory claim. Lord Atkins in Sim v Stretch (1936) 6defined defamatory statement as follows. A statement which tends to lower the claimant in the estimation of the right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt,ridicucule, fear and disesteem.7. A vulgar abuse is not defamatory but a statement of satire can be actionable though the satirist can escape labiality by a disclaimer of ‘fair comment on a matter of public interest’ A test of defamatory meaning has been established in Skuse v Granada Television Ltd8 that was later recognised by the Privy Council in Bonnick v Morrsi and Another9 The test is that the words should be given the natural and ordinary meaning that would be conveyed to the reasonable reader, who was presumed not to be naïve, to be capable of reading between the lines, and not to be unduly suspicious so that he would choose a defamatory meaning over a non-defamatory meaning.10 If the statement implicates a person’s moral character or his profession ability, it is defamatory. Defamatory at one time need no be so in another time. In the instant case the statement made by the potential defendants are clearly defamatory in nature. Hence, to disprove the claim, the defendants must be in their possession sufficient to stand by what they said. They called the Samvot organisation as supporters of Islamists terrorists, bogus, fanatical Islamicists. The defendants who came on the television against Samvot were in fact reflecting on the original response of Melanin Prim, which had been the response to the claimant’s campaign against the British establishment. The facts and circumstances clearly show that the defendants merely responded to the seemingly provocative campaign, which even implicates every citizen of the country. This is but a mere political stand taken by the Samvot. When they take such a bold step of accusing the British of their complicity to the torture meted out to their asylum members, they should be ready to face the reaction from the public in a healthy manner rather than going in for defamatory proceedings against the defendants. They should also be ready face the counter claim proceedings of the defendants and even the British Government for spreading a false campaign without proof. The developments seem to be claims of one party and response of another party in pubic interest. Hence, unless the claimants have sufficient proof of what they have said of the British, their claim against the defendants will not succeed. On other hand, they will be awarded with costs to be paid to the defendants in case of their defamatory suits being dismissed. Even though article 10 of the European Convention on Human Rights makes restriction on freedom of speech, the claimants herein are the provocateurs and the defendants have merely responded to their allegations in public interest. The defendants will have little difficulty in proving their stand taken against Samvot because what they have said of them must have been based on earlier reports about the organisation and its members. Even otherwise, both campaigns are healthy display of freedom of expression in which courts will like to interfere. Therefore, Samvot is advised that proposed action against the defendants will fail and in all probability will be asked to pay costs to the defendants. Read More