Submitted by: Tavisha Sood
Question: Northern Ireland should not adopt the requirement codified in s.1(1) of the Defamation Act 2013 that the “publication has caused or is likely to cause serious harm to the reputation of the claimant” as it tips the balance too far in favour of freedom of expression, at the expense of the right to reputation. Critically discuss with reference to relevant authority.
Introduction
In this essay, I critically evaluate how the introduction of s.1(1) of the Defamation Act 2013 (Hereinafter DA 2013) brought the tort of defamation into the 21st century and while it does afford more protection for freedom of speech, it does not do so at the expense of a right to a reputation. In order to do so we explore; the history of UK libel laws; how s.1(1) provides protection for free speech; why this does not diminish the protection of reputation and lastly why Northern Ireland (NI) should adopt this policy.
UK Libel Laws prior to DA 2013
Protection of Reputation (Article 8) and Freedom of Expression (Article 10) are always likely to find themselves in some tension as one person’s freely expressed view is another person’s unjustified calumny (Emily Cleevely 2011). However, UK’s imbalanced laws that heavily favour the right to a reputation over free speech has exacerbated this tension for years.
England’s libel laws were initially designed to defend the integrity of the Crown with pro-claimant provisions such as the presumption of falsity. However, it is exactly these libel laws that led to the UK gaining the infamous title of being the ‘libel capital of the western world’. With increasing ‘Libel Tourism’ - a practice of people issuing defamation in the UK to ensure success – the UK’s legal reputation was inviting mass international and domestic criticism. Domestic organisations such as ‘English Pen’ and ‘Sense about Science’ pushed for higher protection of free speech, warning England that its libel laws were perpetuating self-censorship. Across the pond, The USA’s steady effort towards creating legislation such as the Libel Tourism Protection Act (2008), was a stark reminder that the English courts pro-claimant approach was under international scrutiny from other commonwealth jurisdictions as well.
Prior to DA 2013, legislators, and academics such as Emily Cleevely (2013) criticised this lopsided system for it ‘imposed significant financial burdens and levels of self-censorship’, all thanks to the pro-reputational laws.
In fact, the case of McDonalds Corp v Steel & Morris [1997] consolidated this criticism by finding numerous flaws in the UK libel system; The pivotal concern being the lack of adequate protection of free speech within the UK libel laws. It brought to light how the threat of expensive litigation battles coupled with pro-claimant friendly law had a ‘chilling effect’ on free speech: Publications and Newspapers were forced to err on side of caution by not publishing any criticism so as to avoid incurring high legal fees (Mariette Jones 2019).
The effects of the pro-claimant 1996 defamation laws were seen through the results of the survey ran by The Publishers Association in 2010 that aimed to study the impact of libel on publishers. The survey found that 100% of the publishers had modified their content before publication to avoid libel action. This ‘chilling effect’ that the common law of defamation had on free speech, in particular on journalism, was one of the main driving forces behind the push for legal reform.
Section 1(1)
Section 1 (s.1) of the DA 2013 introduced the ‘serious harm’ test which specified that a statement cannot be defamatory unless it causes (or is likely to cause) serious harm to the reputation of the claimant. This requirement of serious harm builds upon previous constraints such as ‘real and substantial tort’ set in Jameel v Dow Jones & Co [2005] and the requirement of a ‘threshold of seriousness’ as established in Thorton v Telegraph Media Group Ltd [2010].
Throughout the years, there had been numerous judges such as in the case of Reynolds v Times Newspaper [2001] that have tried to balance the law better but failed, inhibited by the old Act; thus DA 2013 was introduced as a way to provide a supportive framework, provide clarity, and deliver more protection for freedom of speech.
This serious harm test allows the courts to block trivial libel lawsuits by increasing the threshold of what can constitute defamatory. The Supreme court in Lachaux v Independent Print Ltd and another [2019] dissented that the inclusion of s. 1(1) is intended to not only raise the threshold of seriousness but also requires factual proof that the ‘impact of the words was to harm the claimant’s reputation’. The reduction in trivial lawsuits being brought forth will positively impact the efficiency of the courts and be cost-effective for parties involved and the courts.
By relying on facts and not just regarding the statement as defamatory because of its inherent tendency to cause harm to reputation, s. 1(1) allows for the courts to better balance freedom of speech and protection of reputation.
For example, in the case of Mardras v New York Times [2008], Justice sir Davis found that Mardras had standing to sue New York Times over their story alleging that he was a conman, despite the fact that only 177 copies of that story had been sold in the UK and the website publishing the article only had 4 hits. If this case was to be brought to court under the DA 2013, Mardras might not have been able to proceed with his claim under s. 1(1) without showing that those 4 hits on the website had caused him ‘serious harm’; It would have forced the courts to consider solid matters of fact in a preliminary hearing. It is reasonable to infer that those 4 hits on the website would not have caused harm that is equal to the ‘chilling effect’ that this would have had on journalism. The high legal costs of this trial would have forced publications to think twice about reporting on something again.
Protection of Reputation
This legislation does not indicate an overhaul of the right to a reputation, nor does it impede this right since DA 2013 still obligates the libel defendant to bear the burden of proof in justifying that their libel is true. At the debates for legislative reform of the Defamation Act 1996, it was argued that as long as the presumption of falsity was intact, protection of reputation would not be compromised. Despite the European Court of Human Rights deeming the presumption of falsity to fall on the defendant to be incompatible with Article 10, the courts retained this presumption. Thus, the libel reformers rejection of any attempts to shift the burden of proof to the claimant shows that despite the reform of the old defamation bill and the introduction of s.1(1), the common law tradition of protecting reputation over speech still stays intact.
Moreover, the introduction of s. 1(1) actually proves to be helpful in providing protection of reputation by encouraging public and prominent apologies by the party accused of making the defamatory statement. Publications, by issuing corrections, can minimise the ‘serious harm’ caused to the claimant.
This was seen in Ruth Cooke and Midlands Heart Ltd v MGN Ltd and Trinity Mirror Midlands Ltd [2014] where Ruth Cooke sued Sunday Mirror under the DA 2013 for publishing her salary as the chief executive of the company. The Judge, Mr Justice Bean, observed the facts of the case and dismissed her claim based on the fact that upon complaint, Sunday Mirror had promptly issued an ‘unequivocal’ apology and thus the harm to her damage did not meet the threshold under s.1(1).
It can be reasoned that an unequivocal apology does more to repair a damaged reputation than monetary damages won through a defamation trial because of how ‘honour’ and reputation are viewed in modern society. Mariette Jones in ‘The Defamation Act 2013: A free speech retrospective’ argues that reputation is the projection of the self to the society, and if that is true, would a prompt and public apology not be a better redress for one’s reputation than simple monetary gains?
Moreover, a claimant’s right to protect their reputation is not constrained under this section since Sumption SCJ in Lachaux v Independent Print Ltd [2019] clarified that when determining serious harms, the courts are right to consider the scale and standing of the publication to be influential. This means claimants bringing defamation suits against larger publications will still have a certain amount of protection and assistance when trying to establish a defamation claim under this new threshold.
Northern Ireland
I believe s.1(1) provides the much-needed protection for free speech without impeding an individual’s right to protection of their reputation and NI should adopt this requirement. NI’s reluctance to adopt s.1(1) can be detrimental for Northern Irish media which would be stifled and vulnerable to frivolous legal claims under the old restrictive law. With Northern Irish Media deprived of free speech protection, Belfast could risk becoming the libel capital of the western world.
Lastly, as Mr. Paul McDonell, in Lord Lexon’s debate on implications of Ulster’s severance stated, NI’s refusal to adopt this requirement will force it to ‘operate in a situation of legal uncertainty’. This would make defamation cases costlier and more complex since NI would have to turn to the UK and ECHR for conflict resolution.