Reframing Libel:taking (all) rights seriously and where it leads

Andrew Scott and Alastair Mullis

Overview

Principles underpinning the libel regime

Application to regime design

Proposals for a coherent libel regime

Principles

Centrality of freedom of speech

Respect for privacy and reputation

Access to justice

Taking free speech seriously

‘[freedom of speech is] 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... applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness

without which there is no “democratic society”

Steel and Morris v United Kingdom ECHR 68416/01, at [87].

Taking free speech seriously

‘Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally

important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J… “the best test of truth is the power of the thought to get itself accepted in the competition of the market”… Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and

ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle

seek to influence them. It acts as a brake on the abuse of power”

R v Secretary of State for the Home Department,ex parte Simms [2000] 1 AC 115, at 126

Taking free speech seriously

‘we too are concerned about the potential for misuse of libel law so as to preclude investigative journalism, to stifle scientific and medical

debate, to undermine the important work of human rights organisations and other NGOs, or to invite the strategic legal tourist from abroad. To the extent that the law allows powerful individuals or corporate entities to ‘chill’ important, warranted comment concerning themselves, their

activities, their products or their ideas, it is socially dysfunctional’

Mullis and Scott (2009) Communications Law, 14(6), 173-183, at 173

Principles

Centrality of freedom of speech

Respect for privacy and reputation

Access to justice

Taking reputation seriously

Reputation quintessentially public in nature: so how can it be protected by Article 8 ECHR ?

Social psychology: key element in one’s self-esteem (self-worth) derives from

perception of what others think perceived harm to reputation causes harm to self-

esteem / impact on psychological integrity of individual

Principles

Respect for privacy and reputation

Centrality of freedom of speech

Access to justice

Taking access seriously

Access to justice important in principle and

practice

Costs, CFAs and the ‘chilling effect’ of libel

Access to justice for claimants

Application: purposes of libel

Compensate for hurt feelings

Compensate for unquantifiable presumed harm

Compensate for special (provable) harm

Vindicate / restore reputation

Compensating Article 8 harm

Hurt felt (harm) explained by social psychology

Generally, degree of hurt relatively low reasonable to consider a damages ‘cap’

Art. 8 harm: ramifications (I)

Meaning: that (those) inferred by the claimant, subject to test of

capability / reasonableness / other claimant incentive to plead mainstream meanings no need for a ‘single meaning rule’ no need for determination by jury no need to argue defences relevant to multiple

indeterminate meanings

Art. 8 harm: ramifications (II)

Defences: emphasis on justification and fair comment no particular need for Reynolds privilege

Standing: corporations unable to recover damages for Art.8

harm

Art. 8 harm: ramifications (III)

Costs: changes on meaning and Reynolds would mean very

substantial reduction in costs

Access to justice: enhanced access to justice for claimants reduced chilling effect for defendants

Application: purposes of libel

Compensate for hurt feelings

Compensate for unquantifiable presumed harm

Compensation for special (provable) harm

Vindicate / restore reputation

Vindication & intangible loss

Damages awarded to vindicate reputation: but is a monetary award the best way to achieve this?

Preference for discursive remedies (mandated apologies, corrections, rights to reply, and possibly declarations of falsity) achieve necessary symbolism enhance public understanding (one purpose of Art 10)

Vindication: ramifications (I)

Vindication & intangible loss damages remedy to be withdrawn mitigated by availability of Art 8 damages (for

individual claimants) and impact of discursive remedy

Meaning: no reason to divert from claimant’s capable /

reasonable meaning(s) no need for ‘single meaning rule’

Vindication: ramifications (II)

Standing: corporations able to seek discursive remedy

Defences: emphasis on justification and fair comment Reynolds privilege positively inappropriate

Downside for defendant: would have to provide discursive remedy – a prima

facie infringement of Article 10 right not to speak commercially disadvantageous BUT upside of enhanced journalistic credibility

Downside for claimant: vindication not coterminous with intangible harm –

‘stain’ not entirely removed

Vindication: ramifications (III)

Downside for defendant: would have to provide discursive remedy – a prima

facie infringement of Article 10 right not to speak commercially disadvantageous BUT upside of enhanced journalistic credibility

Downside for claimant: vindication not coterminous with intangible harm –

‘stain’ not entirely removed

Application: purposes of libel

Compensate for hurt feelings

Compensate for unquantifiable presumed harm

Compensation for special (provable) harm

Vindicate / restore reputation

Special damages

No reason why special damages should not continue to be recoverable if provable note: entails shift in burden of proof of harm

Meaning issue becomes less central determination of meaning a by-product of

demonstrating how damage caused

Defences: remain as at present

Endpoint: a two stream libel regime

First stream: libel tribunal / county-court / (self-) regulatory body to decide capability of meaning; applicability of

justification / fair comment defences to award max damages £10k for Art 8 harm (soft cap

imposed by dint of choice of route); no capacity to award special damages

to determine appropriate discursive remedy

Endpoint: a two stream libel regime

Second stream: High Court to consider claims for serious Art 8 harm and special

damages only; no damages for vindication / intangible harm

reliant on claimant’s capable (reasonable) meaning and harm-causing meaning respectively

cap on Art 8 harm benchmarked to damages for physical injury; no limit on special damages

Endpoint: a two stream libel regime

Reflections majority of cases proceed through stream 1 strong incentive to settle cases quickly continuing potential for abusive use of stream 2? potential for game-playing by (media) defendants?

Reframing Libel:taking (all) rights seriously and where it leads

Andrew Scott Alastair Mullis

a.d.scott@lse.ac.uk a.mullis@uea.ac.uk