The Report - BALANCING FREE SPEECH AND REPUTATION

E-mail Print PDF
Article Index
The Report
TERMS OF REFERENCE
EXECUTIVE SUMMARY
BALANCING FREE SPEECH AND REPUTATION
RESTORING THE BALANCE
RECOMMENDATIONS
APPENDIX: CASE STUDIES
ACKNOWLEDGEMENTS
All Pages

BALANCING FREE SPEECH AND REPUTATION

 

Free speech is internationally recognised as one of the most important of all our human rights. The Universal Declaration of Human Rights – written
in the aftermath of the Second World War – describes free speech as ‘the highest aspiration of the common people’. The European Court of Human Rights has historically kept this in mind, describing free speech as ‘one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment’.1 The Court has also noted that free speech protects not only information and ideas ‘that are favourably received or regarded as inoffensive or a matter of indifference, but also those that offend, shock or disturb’.2 The Human Rights Act (1998) gives British citizens the right to free speech as set out in Article 10 of the European Convention on Human Rights: the freedom ‘to receive and impart information and ideas without interference by public authority and regardless of frontiers’. This formalises a long tradition in British society, which has respected free speech because of its importance for democracy, for scientific inquiry, and for self-fulfilment.

Free speech is a cornerstone of democracy. Without free speech, we could not hold the government to account; nor could we represent our political views or expose the wrongdoing of those who represent us. This is why MPs claim an ‘absolute privilege’ to make or repeat defamatory remarks in the House of Commons. It enables them to air their constituents’ concerns without the fear of a libel action. The importance of this principle was reaffirmed in October 2009, when an injunction was used in an attempt to block the reporting of parliamentary business. In the wake of this scandal, Westminster, the media and the public have been reminded of the essential value of free speech to democracy.

The recent revelations about MPs’ expenses – which have contributed to a process of democratic renewal – would not have been possible without public access to closely-guarded information. Even as campaigners attempted to use the Freedom of Information Act to uncover MPs’ expenditure, the Speaker turned to a libel law firm, Carter-Ruck, to protect his reputation.3 Other MPs threatened to sue for libel in the wake of the revelations. Before this information became public, such threats could have silenced critical reports. Now that the public knows how the expenses system was operated, MPs would find it hard to mount a successful libel action. Yet public figures in other countries continue to use English libel law to silence their critics, from Ukraine to Iceland (see Appendix).

Free speech is not only vital for democracy; it is also necessary for the pursuit of knowledge. From Socrates to Galileo, philosophers and scientists have been penalised for challenging received wisdom. New ideas can be deeply unsettling. Backed up by scientific research, they can force us to rethink our place in the universe. Science depends on rigorous debate, which is best conducted within a scientific framework, not a court of law, as the ongoing case of British Chiropractic Association v Singh demonstrates (see Appendix). Free speech is also important for self-fulfilment. We all benefit from being able to speak our minds, to express our emotions and to understand the emotions of those around us. Novelists and other creative writers depend on their right to freedom of expression to illuminate the human condition. Yet libel law has been used against at least one novelist in recent years who inadvertently created a character resembling a real person, who subsequently sued for libel (see Appendix).

Free speech is also essential in order for a strong and independent media to hold the state to account, to expose corruption, and to host national debates on matters of public interest. This does not mean that the media should be free to defame members of the public or public figures with impunity. However, journalists have an important role to play in society, and so long as they exercise that role responsibly, the public interest is served better by a liberal regulatory regime that allows occasional mistakes, than by a stricter regime that curtails media freedom. Societies live and breathe through the oxygen of free speech.

Sometimes the atmosphere can become polluted. We don’t always like what we hear, and some speech can be disturbing. No one would deny that speech is powerful. We are linguistic animals, and if speech didn’t have the power to change our lives we wouldn’t have bothered to invent it. It is in recognition of the special power of speech that Article 10 of the Human Rights Act sets out a number of interests that may occasionally justify constraints on the right to freedom of expression, such as national security, public order, and ‘the rights and reputations of others’. This means that any legal restraints on our speech (and other forms of expression such as writing and art) must be justified by one of these concerns. For instance, the Official Secrets Act limits the freedom of soldiers and public officials to share their knowledge of sensitive issues. However, in order to prevent governments imposing undue restraints on free speech, the European Court of Human Rights has established some key principles here: any restraints must be (1) necessary in a democratic society; (2) proportionate to the threat posed; and (3) subject to legal certainty – in other words, the law must be clear and consistent.

The law of libel developed many centuries before the idea of human rights entered the statute books, as part of the arsenal of the wealthy. From its origins in the eleventh century to today’s million-pound court cases, libel law has been used to protect the rich and powerful from criticism and has come to be associated with money rather than justice. The high costs involved and the scale of potential damages have chilled free speech. A major report published last year by the Programme in Comparative Media Law and Policy at the Oxford Centre for Socio-Legal Studies revealed that the cost of libel actions in England and Wales is 140 times higher than the European average.4

Libel law exists to protect people against statements that have a meaning lowering them ‘in the estimation of right-thinking members of society generally’, or exposing them to ‘hatred ridicule or contempt’ or causing them to be ‘shunned and avoided’.5 It is always presumed that such statements are false, just as it was once presumed that a gentleman must be blameless. In English law, the defendant in a libel case is asked to prove the truth of their statement, or that it was a ‘fair comment’, not intended as a statement of fact, or that the allegation, even if false, was made in the public interest. Thus the defendant carries the burden of proof. The English approach to libel therefore suggests that the reputation of the claimant is more important than the free speech of the defendant. This feature is one of the reasons why foreign claimants choose English courts over other jurisdictions that do not presume falsity. It is also an anomaly in English law, where defendants are usually presumed innocent until proven guilty.

Most countries in the world have some form of civil libel law, which allows ordinary citizens to defend their reputation in court. Indeed, the Universal Declaration of Human Rights (1948) recognised the right to legal protection against ‘attacks upon […] honour and reputation’. However, the architects of the European Convention of Human Rights did not include a primary right to reputation. They recognised the potentially chilling effect of creating such a right. Our reputation is a function of the interplay between how we behave and what is considered acceptable in our society. Liberals have a bad reputation in a fascist society; fascists have a bad reputation in a liberal society. No one can go through life expecting to maintain a good reputation, regardless of their words or actions. In order to avoid the chilling effect of creating a right to reputation, whilst acknowledging the need for some legal protection against defamation, the Convention defines ‘reputation’ as a potential constraint on the fundamental right to free speech. The state is responsible for finding an appropriate balance between free speech and the protection of reputation.

In the past decade, probably the most significant development in libel law has been the evolution of the Reynolds defence, which derives from a judgment made in 1999 by the House of Lords on a case brought by the former Irish Taoiseach Albert Reynolds against the Sunday Times. In their judgment, the Lords ruled that under certain circumstances, the media could mount a ‘public interest’ defence against allegations that turned out to be false. However, the defendant would have to demonstrate that they had acted responsibly, and the judgment outlined several possible criteria that judges could use to determine whether the defendants had done so. A Reynolds defence has since been used successfully in Jameel v Wall Street Journal and in the case of Bent Coppers (see Appendix). Lord Hoffman said in Jameel that this defence should apply ‘to anyone who publishes material of public interest in any medium’, not merely to professional journalists and editors. However, the prohibitive costs of libel law and the misplaced burden of proof have deterred potential defendants from testing this defence in court.

On 21 July 2008, the United Nations Human Rights Committee issued a damning critique of English libel law. The UN stated that the ‘practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work’.6 The report also highlighted the impact of the internet, which ‘creates the danger that a State party’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest’. Over the last decade, increasing numbers of foreign claimants have brought libel actions in the English courts, often against defendants who are neither British citizens nor resident in this country. This phenomenon, known as ‘libel tourism’, has led American states to pass legislation protecting their citizens against the financial consequences of such rulings and the House of Representatives passed a bill this year to protect all US citizens. This has come to be known as ‘Rachel’s Law’, after the American academic Rachel Ehrenfeld who was sued in London by the Saudi businessmen Khalid bin Mafouz over allegations in her book Funding Evil. Only 23 copies of the book were available in the UK, but the English courts still heard the case (see Appendix).

In its 2008 report, the UN indicated that English libel law may breach Article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression. It was this report that prompted Index on Censorship and English PEN to launch this inquiry. We soon realised that the problem of ‘libel tourism’ cannot be addressed in isolation. Foreign claimants choose English courts to silence criticism, not only because of a jurisdictional loophole but because English libel laws are favourable to the claimant. We might close this loophole, yet the problem for British writers and journalists would remain. Moreover, in today’s fragmented media environment, it is not only the traditional media companies – newspapers, broadcasters and book publishers – that have an interest in free speech. Everyone with access to the internet now has the capacity to create a blog, or post material to YouTube or other social networking sites. The rise of ‘citizen journalism’ and the readiness of newspapers such as the Guardian to host post-moderated material on their websites alongside editorial content have blurred the old boundaries between the media and the public. This means that, increasingly, private citizens without the resources of a newspaper or publisher are being forced to defend themselves in an expensive, complex and unfair environment, in which their basic rights are not respected. Many bloggers receive writs to take down content on their website posted by other people. The moderators of (and some contributors to) the football fan forum ‘Owlstalk’ were subjected to a sustained legal assault by the directors of Sheffield Wednesday FC (see Appendix).

In its early days, the internet was heralded as a device that would globalise free speech, by creating new opportunities to ‘seek, receive and impart information and ideas’. Whilst it has certainly allowed millions of people the freedom to blog about their lives, and to share their views with the world, the internet has also given states and corporations unparalleled powers of scrutiny over citizens’ communications. New technologies of censorship and surveillance have developed in competition with the technology of freedom. Meanwhile, libel laws that were created in an age of manuscript circulation are now being applied against twenty-first century communications. Libel law urgently needs to be reformed to meet the new demands of global publishing. It is time now for the British state to restore common sense to this area of law, which has an enormous impact on the fundamental right to freedom of expression, both in the UK and internationally. All arms of the state – legislature, executive and judiciary – must be involved in this process, which is too important to leave to the courts alone. Civil society also has an important role to play, as charities and NGOs such as English PEN and Index on Censorship have shown by conducting this inquiry. Ultimately, we believe that legislation will be required to set an appropriate balance in law between the protection of reputation and the fundamental importance of free expression. In the following section we set out the ten primary failings in the current legal system, and offer solutions to these failings.

1 Handyside v UK (1976) 1 EHRR 737 para 49

2 Ibid.

3 See Daily Mail, 10 August 2007

4 A Comparative Study in Defamation Proceedings
Across Europe, Programme in Comparative Media
Law and Policy, Centre for Socio-Legal Studies,
University of Oxford, December 2008

5 See Andrew Nicol, Gavin Millar and Andrew Sharland,
Media Law and Human Rights, second edition
(Oxford: Oxford University Press, 2009), p. 81

6 UN Human Rights Committee, 21 July 2008