Qualifying free speech

The UK Court of Appeal might have restrained England's stringent libel laws - but it's long way from a free press.

Helene Guldberg

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A ruling at the UK Court of Appeal in London on 5 December 2001 raised hopes of enhanced protection for the media in libel cases. Three judges ruled that when ‘public interest’ stories are published in good faith – even if the story cannot be proven to be true in court or is later proven to be untrue – the media should have the defence of qualified privilege.

The judges ruled that in the libel case of Loutchansky v Times Newspapers Ltd trial judge Mr Justice Gray had wrongly interpreted the law relating to freedom of the press – that he had set ‘too stringent’ a test for the defence of qualified privilege. But although the appeal judges’ ruling is a step in the right direction, it still leaves editors and journalists uncertain as to when the defence of qualified privilege will apply in practice.

Traditionally, the defence of qualified privilege applied to a person or organisation that had a ‘duty’ to publish information that the reader had an ‘interest’ in receiving: known as the ‘duty-interest’ test. In the Loutchansky case, however, Justice Gray ruled that the duty to publish test was whether ‘a publisher would be open to legitimate criticism if he failed to publish the information in question’. In response, The Times argued that Gray’s definition set too high a hurdle and would restrict free speech.

The Appeal Court judges broadened the scope of qualified privilege defence, stressing that ‘public interest’ meant the promotion of ‘a free and vigorous press to keep the public informed’, including ‘the corresponding duty of the journalist (and equally his editor)…to behave as a responsible journalist’.

But how will judges decide what is responsible journalism? As Queen’s Counsel (QC) Lord Lester, representing The Times, told the Court of Appeal: ‘The law is in a wholly incoherent state over the formulation of the test of qualified privilege.’ Justice Gray drew on legal precedents from the nineteenth century (which he was found by the court to have ‘substantially’ misquoted, with the origin of some of his ‘quotations’ remaining unclear). The Times drew on the House of Lords’ judgement in the Reynolds v Times Newspapers Ltd of 1999 – considered by many to be a landmark ruling – for its defence of qualified privilege.

In the Reynolds case, the House of Lords ruled that newspapers that made defamatory statements should be protected if the information published was so important that the interest in publishing it outweighs safeguarding a person’s reputation. ‘The press discharges vital functions as a bloodhound as well as a watchdog’, ruled the Lords. ‘The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.’

But England still has a long way to go to catch up with the law as it exists in most other Western countries. In England, libel law rests on the assumption that claimants have an ‘unblemished record’ – and claimants only need to show that the words complained of are capable of lowering their standing in the estimation of ‘right-thinking members of the public’.

Those who sue do not need to prove that their reputation has been damaged – nor do they have to prove that the words complained of were untrue. The assumption is that the defamatory statement is false, with the burden falling on the defendant to prove it is true. This reversal of the burden of proof – with the defendant pretty much guilty until he proves his innocence – is almost unique to English libel law.

The defendant does not only have to defend the literal meaning of what he has said, but also possible interpretations. So arguing that a particular defamatory meaning was not intended will not hold up as a defence in court. Claimants can – and often do – succeed in attributing defamatory meanings to statements that the defendant never intended to be defamatory.

In the USA, the landmark ruling in New York Times v Sullivan in 1964 created a ‘public figure defence’ – making it extremely difficult for public individuals to sue for libel. To succeed in a libel case, claimants would need to show that not only were the allegations untrue but that they were made maliciously or with reckless disregard to the truth.

The US Supreme Court observed that in free debate erroneous statements are inevitable and must be protected – otherwise free expression would not have the ‘breathing space’ it needs, and media self-censorship would become the norm. The fear of not being able to prove the truth of the published words in court – and the recognition of the expense and resources required to do so – would limit public debate.

In 1997, the US Maryland State Appeals Court refused to recognise an English ruling, arguing that the principles of the English libel law failed to measure up to basic human rights standards and were ‘repugnant’ to the First Amendment ideal of free speech.

So, by broadening the scope of qualified privilege, is English law finally moving in the direction of incorporating a public interest defence? Not really. When you look at the criteria that publications will have to meet in order to qualify for the protection, it looks like this is only a very small step in the right direction.

In the Reynolds ruling, the Lords suggested a list of at least 10 factors that should be taken into account to determine whether journalists and editors had acted responsibly, including: the seriousness of the allegation; the nature of the information, and the extent to which the subject matter is a matter of public concern; the source of the information; the steps taken to verify the information; the urgency of the matter; whether comment was sought from the claimant or whether the article contained the gist of the claimant’s side of the story; and the tone of the article.

In short, the price of broadening ‘qualified privilege’ is to submit editorial judgements to judicial scrutiny. Editors will not know at the time of publication whether a particular story is likely to be protected or not, and it is still left to judges to decide the balance of the interests of freedom of speech and the protection of reputation. Ultimately, this leaves little protection for the open exchange of ideas.

It is possible that one day the English libel courts will move away from the uncompromising support for the right to reputation over the right to speak freely – but the Appeal Court ruling doesn’t take us very far down that road. It is nowhere near the public figure defence in the USA, which allows journalists to write what they believe to be right – even if it is wrong – as long as there is no malice or reckless disregard to the truth.

Free speech online

The Loutchansky v Times Newspapers Ltd case also raises important questions for online publishing. The Court of Appeal upheld Justice Gray’s ruling that the The Times’ online archive could be open to libel actions for the foreseeable future, with no defence of qualified privilege.

In 2000 (the year after the initial libel writ) Loutchansky sued The Times over the continued availability of defamatory material in its online archive. His lawyers argued that, since The Times had failed to mount a defence of justification, it was not entitled to keep the material in its online edition.

Justice Gray ruled that rather than applying a ‘single publication’ rule – which says that publication takes place the day the material is posted on a website – the article is seen to be ‘published’ every time it is read. This means that, while libel actions against ‘hard copy’ articles have to be taken within one year of publication, online publishers in England face the indefinite risk of libel action.

Even if the original publication of the article should afford qualified privilege, on each subsequent publication the defendant would have to show they had immunity. In other words, the defence would have to be mounted every time the article was read online. By upholding this ruling, the Court of Appeal has done no favours for free speech online.


Read on:

Libel law: free speech on trial, by Helene Guldberg

Some last words on that libel trial, by Mick Hume


spiked-issue: Free speech

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