Protecting the reputation of defamation law: How defamation law can remain justified in an age of globalized communications, science, human rights and democratic values
| Author | Charlotte Leigha Cruise |
| Pages | 77-98 |
S.S.L.R Protect ing t he reputation of d efam ation law
77
Vol.2
Protecting the reputation of defamation law: How
defamation law can remain justified in an age of
globalized communications, science, human rights
and democratic values
Charlot te Leigha Cru ise.
The 59,511 signatur e strong pet ition for libel reform clearly demonstrates the
impetus for reform of Anglo-Welsh defam ation law. This dissertation
identifies the increased im portance of freedom of expr ession in modern
society as underlying the need for reform, with t he emergence of the int ernet
highligh ting the inadequacies of the current law. It is argued t hat the
increased importan ce of free expression is a result of three ideological
development s in society; th e id eal of repr esentative and accountable
gover nance, the ideal of the advancement of society and societal goods
through science and the recognition of freedom of expression as a
fun damental human righ t. This disser tation determines what limits
theor etically should be imp osed on the protection of reputation in or der to
achieve these ideals and com pares this position to the protection afforded to
rep ut ation under th e current law and in the coalition ’s proposals for reform .
From this comparison the changes needed to meet the dem ands of modern
society becom e app ar en t. To achieve th e ideal of representative and
accountable gover nance it is argued a new statutory defence for inform at ion
which is conducive to political discourse and is hon estly believed to be true
should replace the Reynolds privilege. It is also considered a single
publication rule bolster the protection of such m at erial and provide a more
principled and pragm atic approach to the realit y of mult iple pu blication over
the internet. To assist the advancement of society and societal goods throu gh
science it is argued that it is justifiable on utilitar ian grounds to provide
absolu te pr ivilege to scient ific expr ession .
To reflect the recognition of free expression as a fundam en tal human right it
is proposed that further reform s are n eeded includin g lim iting the right to sue
in defamation to natural persons and im plementin g statutory reform of th e
defences of ‘justification’ and ‘honest com ment’. It is proposed that the
defence of ‘just ification’ is renamed ‘truth’ and should available for
imputations n ot complained of, as this may help the defendants dem on strate
that the damage to the claim ants reputation is not as extensive as alleged. It is
proposed that the d efence of ‘honest comment’ should be renam ed ‘honest
opinion’ and should require a public interest element. It is concluded that the
implem en tation of these proposals will allow for a prin cipled approach to the
Sou tha mpton Studen t Law Rev iew
78
protection of reputation that is align ed with m odern d em an ds. However, it is
recognised th at this may only be the first step on the road to achieving a
balance between protection of reputation and freedom of expression that is
appropriate to m odern societ y. It is recognised to fully ach ieve this aim the
disincentive t o free expression, embodied in th e potentially high cost of
defend in g an action in defamation, mu st also be com bated.
Introduction
t has been argued that defamation law is ‘unsatisfactor y’.1 Arguably th is is
mainly because the current law is too restr ictive of free expression. This
view is adopted by the governm ent in justifying it s proposals for reform in
th e Defam ation Bill 20102; they claim that consultation with interested parties
and recent repor ts3 demonstrate ‘mountin g con cern …. that ou r defamation
laws are not striking th e right balan ce, but rather ar e havin g a chilling effect
on freedom of speech’.4 This statem en t signifies that it is ultimately the level
of protection offered by the law itself that is the root cause of the unjustifiable
inhibition of freedom of expression . Wh ilst th ere is clearly extensive literature
which in dicates that the costs of defam ation cases are very high,5 it is argu ed
that fun damentally the cau se of th e concern th at free expression is being
unduly inh ibited is th at the substantive law does not offer protection to
expression in scenarios in which m od ern values and inter ests dem and that it
should. It can be seen that if in dividuals felt that their expression was
adequ at ely protected, then they would not unduly censor th eir expression.
This is because they would be confiden t that there was little r isk of losing an
1 HL Deb 09 J uly 20 10 , vol 770, co l 423
2 Defam atio n Bill HL Bill (2 010-20 11) 55/ 1
3 See Mi nist ry of Ju stice , Draf t Defam at ion Bill Con sult ation Paper (CP3/ 11, Mar ch 20 11) pg
5. 'Pa rties ' inclu des; ' n on-go ver nmen tal or ganis ation s; th e med ia and pub lishin g indu stry;
th e legal p rofess ion; in tern et-b ased o rgani sation s; an d rep resen tat ives of th e scien tific
com mun ity'. 'Rep orts ' includ e; Min istry of J ust ice, Rep ort o f the L ibel W orki ng Gr oup ( 23
Mar ch 20 10) ; Cultur e Medi a and Sport Com mitt ee, Press Stan dar ds an d Priv acy, Seco nd
Rep ort (Cm 362, 20 09 ); Engli sh PEN & In dex on Cen sorsh ip, Fre e Speec h is no t For Sa le;
The Imp act of Englis h Libel L aw o n Freed om of Expr ession (Englis h PEN & In dex on
Cens orsh ip Lond on, 2 009 )
4 Min istry o f Jus tice, Dr aft D efam atio n Bill Cons ultat ion Pa per (CP3 /11, Mar ch 20 11) pg 3
5 Dat a from a stud y of costs in 139 cas es by th e MLA show s the a verage (mea n) of co sts in
defa mat ion case s to be £ 135,00 0 (u sing o nly the cas es in wh ich th e defen dant s costs were n ot
skew ed by be ing rep resen ted as zero due t o the u se of in h ouse lawye rs). Da ta an alysis fr om;
David Howar th 'Th e cost o f libel pr oceed ings: a scept ical not e' [20 11] CLJ 3 97 Base d on
figur es from ; Ja ckson L.J, R eview of Civ il Litiga tion Cost s: Prelim ina ry R epor t, Appen dix 17.
It is also cla imed t hat t he cos ts of de fam ation cases are on avera ge thr ee tim es mo re th an th e
da mages awa rded ; Ja ckson L.J , Rev iew of Civil L itiga tion Cost s: Prelim in ary Repor t, pg 3 42.
Fur ther mor e a com para tive stu dy of est imate d costs of defam ation proc eedings claims that
En glish Libe l cases c ost 140 time s mor e tha n th e Eur opean avera ge; T. Lar son a nd D.
Leon ardi , 'A Com para tive Stu dy of Costs in Defam atio n Pro ceedin gs acro ss Eur ope',
Pr ogram me in Compa rat ive Media Law an d Policy, Cen tre for Socio -Legal Stu dies Un ivers ity
of Oxfor d (Dece mber 200 8) .
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