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Published: Fri, 02 Feb 2018
English law of defamation | Free 2.1 Law Essay
In your opinion, is the English law of defamation fully compatible with Article 10 of the European Convention on Human Rights?
The English law of defamation recognizes reputation as an interest worthy of protection. Article 10 of the European Convention on Human Rights (ECHR) protects the right to freedom of expression, including the right to ‘hold opinions and to receive and impart information and ideas without interference by public authority’. This essay will explore to what extent the two are fully compatible, particularly with regard to determinations as to truth, opinions and value judgements and with regard to the balancing of freedom of expression against protection of reputation of public figures. This essay will also follow the progression of what can be seen as English law’s initial oversight of the ECHR, to a gradual acknowledgment, through to incorporation by means of the Human Rights Act (HRA) 1998 and towards what many hope will be an eventual harmonization of the two.
English law affords protection to reputation by holding that every person is entitled to their good name, which if brought into disrepute, may give cause for an action in the tort of defamation either for libel, actionable per se, if the statement is in a permanent form or for slander if the statement is in transient form and the claimant can also prove special damage. In order to mount a claim for defamation a claimant must establish:
1. that the words used are capable of being defamatory – either by lowering the claimant in the estimation of normal, right thinking people, exposing the claimant to hatred, contempt or ridicule or causing the claimant to be shunned or avoided.
2. that the words refer to the claimant – even if not specifically named or even if reference is made through a fictional character , and
3. that the words are published – publication in the legal sense meaning communication to at least one person other than the claimant
Defences to a claim of defamation include:
i. Justification (truth) – a complete defence, not defeated by malice and which recognizes that a statement may damage reputation but also acknowledges that reputation cannot be upheld by concealing the truth;
ii. Privilege – on account that dissemination of the information outweighs the protection of reputation when such information is in the public interest. Privilege comprises two distinct defences:
a. Absolute privilege – for situations of utmost importance such as parliamentary proceedings , judicial proceedings , or for official state communications (executive privilege) and,
b. Qualified privilege – for communication of information in circumstances where there is a duty for the information to be given and received .
iii. Fair comment – dealing with non-malicious statements of opinion commenting on facts that are in the public interest.
Truth, Opinions and Value Judgements
Justification may appear to be the utmost defence but it is a less utilised defence as the truth in many circumstances is costly and difficult to prove. If truth is difficult to prove then opinions are even more impossible. It is these subjective and less verifiable expressions that are afforded extensive protection under Article 10 and one of the main ways in which English law may be seen as not being fully compatible with the ECHR.
Article 10 states that:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Though the UK has been a partner to the ECHR from its signing in 1950, English law for decades failed to acknowledge freedom of expression as contained in Article 10. Despite not having any enshrined protection of freedom of speech prior to 1997, English law has always maintained that its legal principles and norms afforded sufficient protection to free speech and have historically relied on statutory interpretation when seeking to resolve conflicts between free speech and other rights. The ECtHR has clearly held however that legal norms, unless ‘formulated with sufficient precision’, cannot be regarded as law
One means whereby English law has sought to afford some limited protection to freedom of expression in relation to defamation can be found in the principle that mere insult and abuse could not be deemed as defamatory . In the case of Berkoff v Burchill , however, a description of a plaintiff as ‘hideously ugly’ has been found capable of being defamatory even when dissenting judgement in the same case has pointed to such a holding being a possible infringement on freedom of speech . While ugliness is clearly a subjective concept and it is almost impossible to prove that such a statement specifically lowered the reputation of the claimant in the estimation of normal, right thinking people, the finding in Berkoff is also surprising considering the ECtHR’s many previous judgements demonstrating the inclusive concept of opinions and value judgements and related findings of breached against the UK. In Sunday Times v UK the ECtHR explained that freedom of expression also extended to those ideas that ‘may shock or offend or disturb’ and, in Castells v Spain , further clarified that opinions, speculation and criticisms fell under the protection of Article 10(1).
English law distinguishes between facts and opinions holding justification as one of the defences to libel statements of fact and fair comment being a defence to a defamatory statement of opinion. The ECtHR makes distinctions between facts and value judgements and in many cases an opinion and a value judgement may indeed have the same meaning. While neither English law nor the ECtHR have ventured to define the elusive concepts of opinions or value judgements, it is precisely these subjective concepts which often give rise to contentious suits in defamation. In the case of Lingens v Austria the ECtHR has made distinctions between facts and value judgements determining that Article 10 only calls for distinction between the two when information published by the press is of a political nature, it has also held that value judgements by their very nature cannot be proved and that the defence of justification cannot be required in any value judgement situation. While in most cases a fact and a value judgement will have the same meaning, A loophole may occur in the protection English law affords to freedom of expression when a defence is denied in respect of an opinion not based on any provable fact and not particularly in the public interest such as in the Berkoff case above. In this way English law may be deemed as failing to strike a sufficient balance in protecting the competing rights of freedom of expression and the right to reputation. Of even more pressing concern, however, are instances when such protection fails in regard to expression of opinions that are in the public interest.
In the case of Lingens the publisher of a magazine printed two articles criticising the Austrian Chancellor and suggesting that he had taken action to protect former SS officers from investigations into Nazi atrocities. The ECtHR in this case made distinctions between facts and value judgements determining that in this instance the published articles contained the journalist’s interpretation of information taking the form of value judgements. In this case the ECtHR determined that Article 10 only calls for distinction between the two when information published by the press is of a political nature, but also held that value judgements by their very nature cannot be proved and that the defence of justification cannot be required in any value judgement situation. Lingens therefore provides a sharp demonstration of expressions which the ECtHR has determined to be value judgements which, if the English common law principles were applied, would almost certainly have been categorised as statements of fact. This clearly demonstrates that there can be major differences between findings of opinions and value judgements, the classifications of which hold important implications for the protection of freedom of expression. In commenting on these issues, Young cites faults with the distinctions between facts and opinions as framed in domestic law and those between facts and value judgements as framed by the ECtHR but contends that instead of adopting another less than perfect distinction, domestic law should remedy such a loophole by allowing the defences of justification and fair comment for both statements of fact and opinion and also in cases where the statement is made in a personal capacity such as detailed above in the Berkoff example.
The Public v Private Divide
While the rights afforded to freedom of expression in Article 10(1) are given special protection from public authority interference, The ECHR recognises that qualifications to this protection are needed if a balance is to be struck between public and private rights and achieves this by means of Article 10(2) which states as follows:
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
It is obviously in the public interest for issues such as public order and national security to be maintained. When information on these issues are restricted not for order or security concerns but merely for political expediency such as avoiding embarrassment to public officials or public bodies, then this in itself is clearly not a ‘necessary’ restriction of freedom of expression which is in the public interest. English law has historically fallen short of full compatibility with Section 2 of Article 10 by disproportionately restricting freedom of expression, in favour of these types of considerations.
Political v Private libels
The case of Derbyshire County Council v Times Newspapers Ltd is significant not least because it demonstrated a new willingness of a domestic court to make a preliminary and determinative reference to the Convention in order to resolve an issue but also because its judgement had significant implications for the tort of defamation. In this case the local authority sued the newspaper for allegations of misadministration of its pension funds. The Court of Appeal invoked Article 10 to assist with determining whether the local authority could mount such an action for protection of its administrative reputation. The Court found that there was no “pressing social need” for the local authority to have such a right in mounting an action for defamation and held that the local authority could not sue but that an individual councillor could sue in malicious falsehood for statements defamatory of his reputation in relation to his work activities. The House of Lords later upheld the judgement and, in doing so, based their findings solely on domestic law which they also credited as being consistent with Convention principles.
While the Courts in Derbyshire were correct in denying the local authority the right to sue in defamation there are various unsatisfactory elements in the judgement which leave English law still not fully compatible with the Convention. Loveland argues that Lord Keith’s reasoning that public officials should be treated to the same standard as private citizens is both incorrect and irreconcilable with Article 10 and cites Lingens and Castells in calling for tri-partite system where ‘the limits of political criticism are wider with regard to Government than in relation to a private citizen or even a politician’. Loveland further contends that where other common law jurisdictions such as the US and Australia have recognised the constitutional law and tort law divisions in defamation the English courts’ reluctance to differentiate between political and private libels shows that English law has not found a sufficient balance between protection for public rights and freedom of expression .
Outing and Punishing Press Sources
There is historical and present evidence of English law’s failure in balancing public and private rights where they compete but there is also evidence of public rights being used as an excuse to punish those who attempt to exercise freedom of expression. This is evident in the many cases where the press has been pressurised to reveal its sources. In the case of Goodwin v UK the ECtHR determined this practice to be in breach of the Convention and ruled that an order to disclose sources is not compatible with Article 10 unless there is an overriding requirement in the public interest. In the Goodwin case where an injunction already protected the company then there was no need for source disclosure as this would go beyond what was called for in Article 10 (2).
English law has had various breaches in regard to Article 10 but there is also evidence that the law is slowly moving towards greater compatibility. In the 1999 HL ruling in
Reynolds v Times Newspaper Ltd. the Court accepted the ECtHR rulings in Oberschlick v Austria and De Haes & Gijsels v. Belgium that certain information could be of sufficient political importance that there would be an interest both for the press to publish and the for the public to receive it . The Human Rights Act 1998 (in effect 2 Oct 2000) now incorporates the majority of the Convention into domestic law. Section 2 obliges courts to ‘take into account’ and to interpret issues in accordance with the ECHR, s. 4 allows the courts to make a Declaration of Incompatibility, while s.6 addresses acts of public authorities and s. 12 addressed freedom of expression with specific provisions against undue restrains on the media rights to publication. We have yet to see how these provisions impact upon defamation and while these developments alone do not render the English law of defamation fully compatible with Article 10 of the Convention, they are most certainly steps in the right direction.
- Jones, M (7th edn, 2000) Textbook on Torts (London: Blackstone Press Limited).
- Loveland, I (2003) Constitutional Law, Administrative Law and Human Rights 3rd
ed. (London: LexisNexis Butterworths) Chs. 18-20.
- Bill of Rights 1688, Article 9.
- European Convention for the Protection of Human Rights and Fundamental
Freedoms, Rome, 4 November 1950, Article 10.
- Human Rights Act 1998.
(c) Domestic Cases
- Adam v Ward (1917) AC 309.
- Bata v Bata  W.N. 366.
- Chatterton v Secretary of State for India  2 Q.B. 189.
- Dawkins v Lord Rockeby (1873) L.R. 8 Q.B. 255.
- Derbyshire County Council v Times Newspapers Ltd.  QB 770 and  3 All
ER 65, CA.
- Hulton & Co. v Jones  AC 20.
- Jordon v Burgoyne  2 QB 744.
- Newstead v. London Express Newspaper Ltd.  1 KB 377.
- Parkins v Scott (1862) 1 H & C 153.
- Reynolds v Times Newspaper Ltd.  3 WLR 1010.
(d) ECtHR Cases
- Castells v Spain (1992) 14 EHRR 445.
- De Haes & Gijsels v. Belgium  25 EHRR 1.
- Goodwin v UK (1996) 22 EHRR 123.
- Lingens v Austria (1986) EHRR 407.
- Oberschlick v Austria  19 EHRR 389.
- Sunday Times v UK (1979) 2 EHRR 245.
(e) US Case
- New York Times v Sullivan (1964) 376 US 254
(f) Journal Articles
- Loveland, I (1996) ‘A sign of things to come? The ECHR and a “public/private”
divide in the civil law of defamation’ Communications Law 1(5), 193-197.
- Young, A (2000) ‘Facts, Opinions and the Human Rights Act 1998: Does English
Law Need to Modify its Definition of ‘Statements of Opinion’ to Ensure
Compliance with Article 10 of the European Convention on Human Rights?’
O.J.L.S. 20(1), 899-107.
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