The Right to Protect Your Reputation and the Right to Free Speech - Essay Example

Is there an appropriate balance between the right to protect your reputation with the law of defamation and the right to free speech? Introduction It is a firmly established tenet of English law that the individual has the right to protect his good reputation and that anyone who impugns that reputation should be liable in damages. Similarly, English law emphasises the right to free speech. Tensions naturally exist between these two protected rights. Difficulties in striking the right balance between these two conflicting rights arise in instances where a false statement is made innocently. Ultimately, the courts have been more rigorous in the protection of the individual’s reputation than in protecting the right to free speech. Obviously democratic societies benefit from free and open speech as well as providing compensation for those who are injured by false damaging statements. However, the law of defamation allows for “remarkable restriction of the freedom to speak and write.”1 This point is amply substantiated by the evaluating the law of defamation and the right to free speech with particular emphasis on how the courts have protected the reputation of the individual Defamation Law and Freedom of Expression The English law of defamation is decidedly complicated.2 The complexities stem from a variety of technical and detailed rules contained in both common law principles and legislative provisions.3 Moreover, the common law has been modified by the Defamation Act 1952 and the Defamation Act 1996 and by the European Convention on Human Rights and Fundamental Freedoms which have been indorsed by the Human Rights Act 1998.4 Under English law defamation can be founded by virtue of either libel or slander.5 Libel typically refers to the print form although libel does not necessarily require that it was committed by word.6 For instance in Monson v Tussauds Ltd a wax effigy was held to be sufficient to substantiate a libel.7 Ultimately, the libel is required to be such that it makes permanent imputations against the character of another8. Common forms of libel are usuall published by television broadcasts, newspapers, video and audio recordings.9 Slander, however can be made by virtue of non-permanent forms and is typically committed by word of mouth. A claim in slander requires that the plaintiff prove special damages unless the alleged slander is founded on one of the following grounds: 1. Imputations against one’s trade or profession. 2. Imputations against one’s chastity. 3. Imputations alleging an infectious diseases. 4. Imputations alleging criminal offences punishable by a tem of imprisonment.10 In each case the imputation is required to be false. As Littledate J points out in McPherson v Daniels (1829) 10 B & C 263: “…the law will not permit a man to recover damages in respect of an injury to a character which he does not, or ought not, to possess.”11 Be that as it may, the plaintiff is at liberty to lodge a complaint with the court and the defendant is required to prove that the statement is true.12 The fact that the plaintiff is at liberty to lodge a complaint so easily, speaks to the strict protection of individual reputations under English defamation law. In further support of the rigorous protection of the reputation, English law provides for defamatory statements to be made by virtue of implication. Specifically, defamatory statements can be implied by innuendo.13 The mere fact that an innuendo may form the basis of a suit in defamation indicates that free speech is indeed remarkably restricted and that that the law is unfairly balanced in favour of protecting an individual’s reputation at the expense of freedom of speech. Complicating matters with respect to the imbalance between protection of the reputation and protection of the right to free speech is the defence of unintentional defamation. Unintentional defamation is a defence which is linked to publication which is contained in sections 2-4 of the Defamation Act.14 It permits the defendant to make an offer of amends for the alleged defamation . Once the plaintiff accepts the offer he is no longer permitted to continue the defamation claim in the courts.15 If the offer is not accepted the case may continue but the offer made and declined will function to mitigate damages.16 In either case, the defence of unintentional defamation does not in and of itself relieve the defendant of liability. It only seeks to limit the award of damages and again supports the contention that the law of defamation restricts free speech and such a restriction is provided for by English defamation laws. Publication, an essential element of defamation permits a defence with respect to distribution. Publication is substantiated when the defamatory statement is communicated.17 Innocent dissemination by a distributor is defence to defamation.18 A person accused of defamation is at liberty to raise the defence of innocent dissemination if he can prove that he did not author the statement giving rise to the claim, or he is not the commercial publisher nor editor of the defamatory statement. The defence is also available if the defendant can prove that he exercised reasonable care in publishing the statement and that he either did not know or could not have known that he had caused or contributed to the publication.19 In this regard a bookseller or printer can be made to respond to a defamation claim so that the right to free speech is subjected to immeasurable restrictions when balanced against the protection of another’s reputation. If a defendant can prove that the defamatory statement was essentially true he or she can successfully defend a defamation claim. For example, in Alexander v North Eastern Railway (1865) B & S 340 the defendant’s published statement which claimed that the plaintiff was sentenced to a term of imprisonment for three weeks was essentially true although the plaintiff had been sentenced to only two weeks with the result that the court accepted the defence of justification.20 The defence of justification only proves that the defendant’s free speech is compromised by the requirement that he ensures that statements made be accurate. To this end, freedom of speech is no more than a misnomer because free speech means that the author must speak only the truth. The defence of fair comment is typically associated with the media since it is calculated to protect opinions that are matters of public interests. In Merivale v Carson [1887] 20 QBD 275 Esher J articulated the appropriate test for substantiating the fiair comment defence as follows: “Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticized?”21 In Turner v MGM Picture [1950] 1 All ER 449, Lord Porter built on Esher J’s fair comment defence test by stating that the words “fair” and “honest” would be imported into the test so as not to impose the reasonable standard.22 In Reynolds v Times Newspapers [1999] 4 All ER 609 Lord Nicholls adapted Lord Porter’s approach.23 The imposition of a higher standard means that freedom of speech has no place if the reputation of the work of another is at risk. This particular defence is particularly detrimental to the right to free speech since it requires that opinions about the work of another be made honestly and fairly. To this end, opinions are suppressed and this certainly compromises the right to free speech. It can be argued however, that the defence of absolute privilege does not compromise the right to free speech. However, since it is for the defendant to prove, the restrictions against free speech are implied. Whether or not the defendant has the right to claim absolute privilege, he or she is not only required to respond to the plaintiff’s claim, he or she must also provide evidence of absolute privilege to the satisfaction of the court. The only saving grace is that when a respondent successfully invokes the defence of absolute privilege the defamation claim will be defeated and it is no moment whether the statement is true or false or made maliciously. The following is a list of statements that can be the subject of an absolute privilege defence: Statements made in Parliament are subject to absolute privilege although the privilege can be waived.24 Official Parliamentary papers, proceedings.25 All statements made in the course of judicial proceedings. Also accurate, fair and contemporaneous reports of judicial proceedings that are conducted in public are the subject of absolute privilege.26 Under Section 9(2) of the Defamation Act 1952 this privilege protects the broadcasting of judicial proceedings.27 Communications between lawyers and their clients is subject to absolute privilege. Statements made between public officials in the course of their respective duties are also subject to absolute privileged.28 With the exception of attorney/client privilege, each of the permissible scenarios allowing the defence of absolute privilege relates to matters conducted in public and the presumption is that they are already a matter of public record. In this regard freedom of speech is protected with respect to publishing information that the public has access to in the first place. Qualified privilege as a defence will only succeed if the statements are communicated and there is no evidence of malice, spite or ill-will. The following can give rise to the defence of qualified privilege: Defamatory statements communicated in compliance to a social, legal or moral duty provide that the author of the statement had some interest in making the statement and the statement’s recipient had some interest in its receipt. Lord Atkinson explained in Adam v Ward [1917] AC 309 that: “a privileged occasion is .... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”29 Qualified privilege will also extend to persons who have an interest to protect such as property, reputation or business.30 Again this aspect of qualified privilege contemplates that only persons of means will have a qualified privilege and the defence is limited in that way. Accurate and fair reports of parliamentary proceedings. Accurate and fair non-contemporaneous reports of judicial proceedings Statements published by the media typically have qualified privilege.31 There are two categories of qualified privileges listed in Schedule 1 of Parts I and II of the Defamation Act 1996 list two classes of qualified privilege. They are “statements having qualified privilege without explanation or contradiction”32 and “statements privileged subject to explanation or contradiction.”33 Part I of Schedule I generally refers to statements made by appointed public officials and Part II of Schedule I refers generally to public notices and reports.34 Even with these concessions for defendants it is generally believed that the law of defamation is unduly complicated and sets out to strenuously protect the reputation of the plaintiff. Lord Porter in Report of the Committee on the Law of Defamation in September 1949 thats: “The general criticism of the law of defamation is that it is unnecessarily complicated, unduly costly, it is difficult to forecast the result of an action both as to liability and as to the measure of damages; it is likely to stifle discussion on matters of public interest and concern, is too severe on a defendant who is innocent of any intention to defame and is too favourable to gold-digging plaintiffs.”35 Complicating matters with respect to balancing free speech and the protection of one’s reputation is the manner in which libel is substantiated and prosecuted. To start with libel is actionable per se, meaning that the plaintiff need not prove actual or special damages in a suit for libel.36 In general it appears that the courts will permit the libel laws in defamation to function as a tool to silence the critics of those who have some form of status in society. This is more clearly demonstrated in those cases in which the claimant is a trading company. In South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 the defendant’s newspaper published an article condemning the plaintiff’s housing policy for its workers. The plaintiff company did not plead actual damages. The defendant argued in its defence that a company was devoid of personal character and as such did not have a character to protect. Moreover, since the material published did not refer to the company’s business, the defamation claim was not capable of substantiation. The Court of Appeal did not agree and ruled that: “…if the case be one of libel - whether on a person, a firm, or a company - the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case."37 In other words, the Court of Appeal ruled that the company may recover damages just as any individual may and may recover damages even if there was no proof of damages. In this regard, any one wishing to express negative opinions about the conduct of corporate citizens will be minded of the financial consequences of those comments so that freedom of speech is contained. In Jameel v Wall Street Journal 2006] UKHL 44 the House of Lords went even further by ruling that: “…a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special, although, where there is no such evidence, the damages given will probably be small.”38 The House of Lords in Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011 provided a further blueprint of the kind of statements that would substantiate a claim in libel. The House of Lords explained that: “…a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business.”39 By taking this approach the House of Lords restrains freedom of speech to such an extent that it is virtually impossible to speak ill of a company. After all, almost any negative statement, communicated to another may be capable of having a tendency to damage that company’s business. This is of course, provided the author of the statement can prove one of the permissible defences stated above. To make certain that reputation is protected at the expense to free speech, the House of Lords went further in providing the following examples that will illustrate the tendency to harm the company’s business. The House of Lords explained that: “Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it.”40 In fortifying the position at common law with respect to the current imbalance between the protection of one’s reputation and the protection of free speech, the House of Lords announced in Jameel v Wall Street Journal, that the current state of the law regarding proof of damages and libel against companies willremain unchanged.41 One of the greatest compromises with respect to the protection of the right to free speech in favour of protection of the reputation is the fact that one of the permissible defences is that the defamatory statement is justified or that the truth of the statement is proved. Proving the truth or justification of a statement is the defendant’s burden and proving it untrue is the plaintiff’s burden. But as David Lewis explains: “…sometimes the facts that would justify a defamatory publication are known to be true but admissible evidence capable of proving them is unavailable.”42 This is particularly problematic for the defendant who does not have the financial resources or the wherewithal to prove the truth of the statement made in the exercise of the right to free speech. This imbalance breathes new life into the statement “put your money where your mouth is.” Free speech in this regard comes at a cost that many can ill afford.. This juxtaposition was manifested by the case of Steel and Morris v The United Kingdom [2005].43 The action was issued in 1990 by McDonald’s Corporation against defendants Helen Steel and David Morris.44 There were obvious differences between the parties in terms of financial and other essential resources. McDonalds is a well known rich and powerful international food chain and the defendants were by comparison two ordinary citizens connected to Greenpeace, a non-profit organization.45 Ultimately, the defendants were “low earners and could not afford to pay for legal representation.”46 The libel case arose out of a pamphlet prepared by London Greenpeace and circulated b Steel and Morris were sued for libel following the distribution of a pamphlet prepared by London Greenpeace The circulated pamphlet was headed, What’s Wrong With McDonald’s? Everything They Don’t Want You to Know.47 The libellous content of the pamphlet was summarised by the High Court as follows: “…of being responsible for starvation in the Third World, of destroying vast areas of Central American rainforest, of serving unhealthy food with a very real risk of cancer of the breast or bowel and heart disease and food poisoning, of lying when it claimed to use recycled paper, of exploiting children with its advertising and marketing, of cruelty to animals, and of treating its employees badly; all the while deceiving the public and hiding its true nature behind a clean, bright image.”48 From the issue of process by McDonalds, the actual trial lasted for seven years and the defendants were obviously prejudiced by a lack of financial support in producing and/or investigating the truth of the statements contained in the circulated pamphlet. The result was an award against them in favour of McDonalds in the sum of 60,000 pounds for libel.49 Although the sum was reduced by an appellate court in 1999, the original judgment was essentially upheld.50 The defendants, responded by filing an action against the UK with the European Court of Human Rights claiming that they had been denied the right to a fair tial under Article 6 of the European Convention on Human Rights because they did not have access to legal aid against a corporate giant such as the plaintiff..51 Agreeing with the defendants, Steel and Morris, The European Court of Human Rights ruled that the UK had violated not only was Articles 6 protection denied, but also article 10, which protected the right to freedom of speech. The UK Registrar provided a synopsis of the ruling as follows: “…they were severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses.”52 The synopsis provide by the UK Registrar went further to state that: “In conclusion, given the lack of procedural fairness and the disproportionate award of damages, the Court found that there has been a violation of Article 10.”53 The Registrar also noted that: “This summary drafted by the Registry is not binding on the Court.”54 In other words, despite violations of free speech and the impact that financial inequalities has on the exercise of free speech in defamation litigation, the UK was not under a duty to alter its law so that free speech may continue to be compromised in cases where a defendant does not have the resources to prove truth of or justify the statement made. In Rantzen v Mirror Group [1994] QB 670 the court of appeal pointed out that Article 10(2) of the European Convention on Human Rights permits free speech to be restricted in a manner “prescribed by law” but must be safeguarded in a manner “necessary in a democratic society.” 55 In other words, the courts regard as do the legislators, that protection of one’s privacy is a right that necessary in a democratic society and is a right that is prescribed by law. To this end, the Article 10(2) exception becomes far more important to the English courts than the right to free speech mandated in Article 10(1). The European Court emphasised the importance of Article 10(2) and drew attention to the fact that previous concepts the right to freedom of expression is: “…subject to such…penalties as are prescribed by law and are necessary in a democratic society…for the protection of the reputation or rights of others.”56 In other words the right to free speech is not an absolute right whereas the right to one’s good name is an absolute right. Conclusion The right to freedom of speech is obviously restricted in the application of defamation laws. The judiciary and the legislators have adapted an approach to the law that emphasises that the right to free speech will not be exercised if it has the capacity to damage the good reputation of others. What complicates matters for advocates of free speech is that the onus is on the author of the alleged defamatory statement to prove that the statement is true of at least amounts to fair comment. As demonstrated throughout, proving the truth of the statement is not easy for some defendants. A statement may be true, or indeed a fair comment, but proof of the same is an entirely different matter. It therefore follows that free speech is unduly and unfairly restrained in favour of protection of one’s “good’ reputation. It therefore follows that there is no appropriate balance between the two conflicting rights. The only means of overcoming this imbalance is to make provision for legal aid for defendants who cannot otherwise afford it in the litigation of defamation law suits. Bibliography Adam v Ward [1917] AC 309 Alexander v North Eastern Railway (1865) B & S 340 Bryanston Finance v De Vries [1975] QB 703 Chatterton v Secretary of State for India [1895] 2 QB 189 Cole-Wilson, Lois. (May, 2005) “E-law Update.” Available online at: http://72.30.186.56/search/cache?ei=UTF-8&p=Steel+and+Morris+v+The+United+Kingdom+%5B2005%5D&rd=r2&fr=yfp-t-501&u=www.ipit-update.com/case03.htm&w=steel+steels+morris+v+united+kingdom+2005&d=IngzF7XiQGb9&icp=1&.intl=uk Retrieved 3 April, 2009. Defamation Act, 1996. Defamation Act 1952 Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011 European Convention on Human Rights Harding, C.; Kohl, U. and Salmon, N. (2008) Human Rights in the Market Place: The Exploitation of Rights Protection by Economic Actors. Ashgate Publishing Ltd. Human Rights Act 1998. Jameel v Wall Street Journal 2006] UKHL 44 Labunski, R. “The Evolution of Libel Laws: Complexity and Inconsistency.” (2007) 5(1) Publishing Research Quarterly, 59-95. Law of Libel Amendment Act 1888 Lewis, David. (2005) “Whistleblowers and the Law of Defamation: Time for Statutory Privilege?” [2005] Web JCLI Available online at: http://webjcli.ncl.ac.uk/2005/issue3/lewis3.html Retrieved 3 April, 2009 Lewis v Daily Telegraph [1964] AC 234. McDonald’s Corporation and Another v Steel and another [1997] EWHC QB 366 McPherson v Daniels (1829) 10 B & C 263. Media Libel. (n.d.) “Helen Steel and David Morris v McDonald’s Corporation.” Available online at http://medialibel.org/cases-conflicts/print/mclibel.html, Retrieved 3 April 2009 Merivale v Carson [1887] 20 QBD 275 Mitchell, P. (2005) The Making of the Modern English Law of Defamation. Hart Publishing. Monson v. Tussauds, Ltd., [1894] I Q. B. 671. Parliamentary Papers Act 1840 Rantzen v Mirror Group [1994] QB 670 Report of the Committee on the Law of Defamation September, 1948 Available online at: http://www.bopcris.ac.uk/bopall/ref9765.html Retrieved 2nd April, 2009 Reynolds v Times Newspapers [1999] 4 All ER 609 Rogers, W.V.H. (2002) Winfield and Jolowicz on Tort. London: Sweet and Maxwell. South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133. Staff Reporter. (Feb. 15, 2005) “McLibel Pair Win Legal Aid Case.” BBC News Available online at: http://news.bbc.co.uk/1/hi/uk/4266209.stm Retrieved Retrieved 3 April 2009 Staff Reporter. (Feb. 15, 2005) “European Court Rules on McLibel Case.” International Herald Tribune Steel and Morris v The United Kingdom [2005]/Press Release Issued by the Registrar (Feb. 15, 2005) Available online at: http://www.timesonline.co.uk/article/0,,2-1485307,00.html Retrieved 3 April, 2009. Tolstoy-Miloslavsky v UK [1995] 20 EHCR 442 Turner v MGM Picture [1950] 1 All ER 449 Wier, J. “Local Authority v Critical Ratepayer – A Suit in Defamation.” (1972) Cambridge Law Journal 238. Read More