Freedom of Expression v Protection of Reputation – A Critique of the Defamation Act 2013

English defamation law has, in the past, put a heavy emphasis on the protection of reputation and largely neglected freedom of speech as a principle. This earned Britain a reputation for ‘libel tourism’ whereby wealthy foreigners took advantage of Britain’s libel laws despite having no obvious connection to the country[1]. However, the law has undergone reform in recent years, with landmark cases such as Reynolds V Times Newspapers[2] favouring freedom of speech. After much political debate, the Defamation Act 2013 was put forth intended to preserve freedom of speech, preventing so-called ‘libel tourism’ in addition to simplifying what was considered an overly complex area of law[3]. Though the Defamation Act 2013 was a step forward in reaching a balance between the protection of freedom of expression and the protection of reputation, the balance is yet to be achieved. This essay will argue that in order to achieve the right balance more emphasis must be placed on the protection of freedom of expression, as the keystone of a legitimately democratic society. Furthermore, individual areas of relevant law will be critically assessed to evaluate their respective contribution to this balance with consideration given to counter arguments throughout.

Freedom of Expression and The Right to Reputation

The protection of reputation is and ought to be protected through legislation; acts of defamation can be incredibly harmful to the reputation, finance and mental health of individuals. However, it comes at a heavy cost. John Stewart Mill, a pioneer in jurisprudence, explored the idea of harm. In ‘On Liberty’, Mill articulated the Harm Principle in which he argued, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[4] The Defamation Act 2013 does exactly this by restricting defamation cases to only those that ‘cause or are likely to cause serious harm to [his/her] reputation’ and thus only limiting the most harmful forms of expression[5]. However, Mill’s utilitarian arguments extend beyond this premise, arguing freedom of expression as a crucial part of any society. Mill contends that it is fundamentally immoral for the majority to silence the minority. This is because if the suppressed opinion is true then humanity is ‘deprived of the opportunity of exchanging error for truth’. In addition to this, if the suppressed opinion happens to be false, humanity ‘loses the clearer perception and livelier impression of truth produced but its collusion with error’, Moreover, he demonstrates the importance of allowing individuals to follow their intellects, and, he explains, to prevent this would prevent great and average thinkers alike achieving their potential mental development[6]. Similar reasoning of progress and individual self-fulfilment were given in the landmark case of Handyside V United Kingdom in which it was held that ‘freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress’[7]. Essentially, it is argued that we require freedom of expression to create, develop and share ideas as a progressive society and as individuals. Where people fear they will be silenced, they will not speak. And if people don’t speak, democracy loses its efficacy as a political system — building on Mill’s ‘Harm Principle’.

Feinberg developed the offence principle, stating that an ‘act of offense’ is sufficient reason for the state to interfere with the liberty of citizens in a democratic state and thus it is appropriate to prohibit some forms of expression[8]. At its most basic level, Feinberg lowered the bar (so-to-speak) of what Mill described as harm. However, the idea of the state interfering with individuals to prohibit forms of offensive expression is a dangerous one. Some people are easily offended, where others might be amused or may take offense by virtue of their bigotry or existing disposition. Furthermore, who is to decide what is offensive? Granting the ability to decide what is and is not offensive — thus what should and shouldn’t be oppressed —  to the state or any other party edges close to censorship and Orwellian constitution.  It is therefore logical that legislation to inhibit the freedom of expression must be approached with caution,  not as a necessary and valuable principle, which ought to be suppressed only in the most serious of circumstances.

 

Has it gone far enough? Issues of defamation act 2013

The Defamation Act 2013[9] has been described as ‘the culmination of a phenomenally successful political campaign’’[10]. The act involved several changes including introducing a test of serious harm, aiming to reduce trivial claims; reducing the ability of corporations to sue for defamation, enforcing a requisite of serious financial loss; codification of the Reynold’s defence into a public interest defence and allowing academic and scientific journals protection from defamation actions, subject to conditions met[11]. The act provided several new means to protect freedom of expression (as demonstrated), however largely neglected substantive areas of the law which ought to be amended.

Reversal of the Burden of Proof

Firstly, the act does nothing to shift the burden of proof from the defendant to the claimant to show that the defamatory statement is untrue. This change has been repeatedly recommended in independent reports[12] and its omission is likely to negatively impact on freedom of expression. Placing burden of proof upon the defendant can be enough to ‘silence journalism that may be in the public interest’ and place an unfair advantage with the claimant. In essence, this reversal of the burden of proof inhibits the ability of the press to question the actions of those for whom cross examination would be too much of a risk, despite being in the public interest. This twist of the law has resulted in unfair cases of defamation such as Armstrong v Times Newspapers, whereby athlete Lance Armstrong successfully claimed damages against the Sunday Times Newspaper after they suggested he had been using illegal performance enhancing drugs, but were unable to prove the legitimacy of their claims (yet we now know them to be true)[13].  It is therefore a logical conclusion that this reversal of burden of proof is likely inhibiting freedom of expression of the media, for fear of a defamation suit, even though it may be in the public’s interest.

Excessive financial remedies for claimants

The defamation act 2013 also does little to address the issue of excessive damages. The Act attempted to remedy this by disposing of Juries in regular defamation cases [Defamation Act 2013], but this an inadequate measure that poses further issues, which will be discussed later. The fear of excessive general damages that may be owed in light of a defamation case not only inhibits the ability of individuals to ‘follow their intellects’ — as discussed by Mill — but may also encourage others to resort to a defamation case fuelled by the prospect of heavy financial gain.

In considering personal injuries damages, the Law Commission commented that

The disparity between the sums of compensation awarded offends the proper relationship which ought to exist between pain, suffering and loss of amenity on the one hand and loss of reputation and injury to feelings on the other. A “wrong scale of values” is being applied.” [14]

The ‘wrong scale of values’ here regards the relationship  between the financial damages awarded to those undergoing personal injuries and those awarded to victims of defamation. This leaves one to consider why reputation is given such high a pecuniary value compared to arguably more serious torts.  It is therefore evident that a new system of damages should be implemented into defamation law, so as to not promote heavy damages where an apology or injunction may be a better fit. Freedom of speech should not be limited to those whom are not afraid of financial repercussions — typically the wealthy and powerful. Pecuniary awards for defamation are mostly inappropriate and should be likely limited to cases where financial loss has occurred.

Minimal Protection for Scientists and Academics

The act makes an attempt to protect ‘peer reviewed statement in scientific or academic journal’ to prevent the law of defamation from impeding on the practice of scientists and academics alike, who rely on discussion and thought for their progress. The law, however, does not go as far as to protect other scientific or academic mediums of communication, allowing the lure of defamation to hang over professionals. Thus, for example, leaves the publication of scientific books and other non-peer-reviewed literature vulnerable to defamation claims. Moreover, no definitions of ‘scientific’, ‘academic’ or ‘expertise’ are given, leaving a further layer of uncertainty to linger over the academic and scientific communities alike. At the heart of the scientific and academic fields is scepticism, which can be construed as defamation for monetary gain under current defamation laws, as is evident in cases such as GE v Thomsen[15], wherein a scientist who gave a presentation questioning the effectiveness and safety of a drug had proceedings brought against him by the drug manufacturer. The minimal protection given to scientists and academic’s freedom of expression is especially worrying, as without the unadulterated ability to debate and propose ideas openly the public interest may suffer. The law of defamation thus does not take enough regard for the importance of scientific and academic expression, putting too much weight on the lesser issue of reputation.

In Review

Freedom of expression cannot be understated as a fundamental principle of any democratic society and this importance has been emphasised time and time again by academics:

“The freedom to choose between values, to have fun through communication, to identify and be identified with particular values or ideas, and to live one’s life according to one’s choice is the essence of liberty. Freedom of expression has an important role to play here”[16]

The law of defamation has, in due regard, made good progress towards striking the right balance between the protection of expression and the protection of reputation in recent years. However, the balance has not yet been reached. The Defamation Act must first address the unfair advantages given to claimants in defamation proceedings, particularly in regards to the burden of proof. Moreover, the remedies applicable in defamation cases ought not to benefit the claimant but instead restore the reputation of the individual — this means reducing financial remedies and instead promoting the use of non-pecuniary remedies. Finally, the ability of scientists and academics to express themselves freely without foreboding liability in court, could have dire consequences for the public interest. The liberty of individuals should not be restricted lightly, and this includes the freedom of expression. Ultimately, the law of defamation ought to place a greater emphasis on the freedom of expression for the sake of individuals and the greater public alike. Until this is addressed, UK law will continue to fail in achieving the right balance between the protection of freedom of expression and the protection of reputation.

 

References

[1] Gordon Rayner, ‘How libel tourism became an ’embarrassment’ to Britain’s reputation’ The Telegraph, (London, 23       Feburary 2010)

[2] Reynolds v Times Newspapers Ltd [2001] 2 AC 127

[3] Defamation Act 2013

[4] John Stewart Mill, On Liberty (Oxford University Press 1859) 21-22

[5] Defamation Act 2013

[6] John Stewart Mill, On Liberty (Oxford University Press 1859) 231- 232

[7] Handyside v United Kingdom [1976] ECHR 5

[8] Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law (volume 1, Oxford University Press 1984)

[9] The Defamation Act 2013

[10] Alastair Cullis and Andrew Scott, ‘Tilting at Windmills: the defamation act 2013’ (2014) 77 MLR 87, 87

[11] Defamation Act 2013

[12] English PEN and Index on Censorship, ‘The Impact of Libel Law of Freedom of Expression’ 2009

[13] Armstrong v Times Newspapers Ltd & Others [2004] EWHC 2928 (QB)

[14] Law Commission, ‘Damages For Personal Injury: Non-Pecuniary Loss’ (HMSO 1995) <http://www.lawcom.gov.uk/wp-content/uploads/2016/08/No.140-Damages-for-Personal-Injury-Non-Pecuniary-Loss-A-Consultation-Paper.pdf> accessed 10 February 2017

[15] David Leigh, ‘US drug firm drops libel action against scientist’ The Guardian (London, 18 February 2010)

[16] David Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn, oxford, oxford university press 2002) 762

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