Is the English Defamation Law an invasion of free speech?
The media commenting on an individual or organisation’s actions and character is unexceptional. However, it becomes problematic when they assert their opinions, and project their bias, to the detriment of the relevant party’s reputation. This article will assess whether the current law (under the Defamation Act 2013) constitutes an invasion of the media’s right to free speech within the United Kingdom (UK). Thus, it will consider the impact had by judgments in analogous cases in shaping and restraining the liability of media for speech deemed acceptable.
The law as it stands
Section 1 of the Defamation Act (DFA) 2013 sets out that for a statement to be actionable under the law of defamation the statement must have caused or be likely to cause ‘serious harm’ to the claimant’s reputation. Prima facie this arguably constitutes a major limitation on the free speech and therefore the free press. Nonetheless, there is a breadth of case law which refines these restraints on free speech, reducing its “oppressive nature”. Sim v Stretch is an example of this. It considered whether “the words [would] lower the plantiff in the estimation of right-thinking members of society generally?” This terminology is important, helping to reduce the floodgates as it minimises the ability to sue by setting a more objective requirement, creating higher thresholds for the claim to establish defamation. This reduces the likelihood of people being able to win defamation cases for more obscure areas such as lookalikes. Similarly, the requirement under Section 1 of the DFA for ‘serious harm’ to have been caused, or at least have been likely to be caused, function to restrain liability.
Currently English law distinguishes between two types of defamation; the first being slander, where defamation occurs through word of mouth or temporary forms of statements in which there needs to be a recognition of special damage to be successful. The second is libel which is typically written communication, however, it can include more creative outlets such as plays and movies. Libel tends to cover more permanent form statements. This type of defamation is actionable per se. Considering all these caveats the law of defamation should not be condemned as an invasion on the media’s freedom but as a diligent balancing act of the rights of individuals and the freedom of the press. The high threshold established through case and statute law, means that the media will not be liable unless they fulfil a relatively narrow criteria.
As defamation is focussed on reputations, an individual’s level of recognition and profession may be mitigating factors to whether their claim is viewed as defamation. Hence, a large proportion of defamation cases involve celebrities as opposed to non-specific, individuals. Critics of the law of defamation argue that high-profile individuals should understand and accept that the public have a greater desire to have information and it naturally follows that the media will speculate. The law of defamation is therefore an invasion on the media, as Bacaj stated the “media is one of the main pillars of the proper presentation of a democratic society”. It produces a “chilling threat”, reducing the publication of controversial topics out of fear of litigation.
Comparatively..
In the absence of rigid defamation regulations, ‘fake news’, tends to circulate misinforming the public and creating a lack of trust and credibility in the media.
Against the backdrop of other jurisdictions law of defamation, the UKs appears somewhat restrictive. The First Amendment of the United States Constitution clearly states there can be “no law to prohibit the free exercise thereof; or abridging the freedom of speech’. Similarly, Kosovo’s Law on Freedom of Speech allows for few limitations on freedom of speech and only in particular spheres, whereas in the UK defamation law covers all forms of media, including social media (as demonstrated with Stoker v Stoker). On the other hand, considering these restrictions in isolation paints a distorted image of the law of defamation in the UK. As said previously the law aims to achieve a balance between the rights of individuals, but also democratic principles. In the United States, for a libel case to be successful it must be proven to have been made with actual malice, meaning the knowledge that it was false or was reckless in checking. This high threshold makes it even more difficult to hold the media to account and means the American media lacks credibility which is consistently reflected in the polls. Likewise, Kosovo’s ‘great freedom’ in publication has led to calls for the introduction of greater defamation protections. In the absence of rigid defamation regulations, ‘fake news’, tends to circulate misinforming the public and creating a lack of trust and credibility in the media. Such an environment of distrust is conducive to populist such as Trump, who use ‘fake news’ to further their political goals. Therefore, although the Defamation law is more restrictive to media journalists, this does not correlate to creating an invasion of their freedom. Instead, it could be argued to be implemented to protect the media’s credibility as in its absence, the media cannot be trusted to pursue the truth. Considering the central role the media plays in a free democracy, it is imperative that they can be held to account.
When looking at prosecution of the media, particularly tabloid newspapers, people tend to sue for defamation in conjunction with privacy. Although there is not a statute for defining privacy there is extensive case law. When attempting to identify privacy Wagner DeCew focuses on the condition of personal privacy instead of claiming privacy as a distinct right a person has. He classes privacy as the ‘condition of not having un-documented personal information about oneself known [possessed by others]’. Thompson reinforces the idea of self-identity as protection by saying it is a
‘cluster of derivative rights some of them derived from rights to own … others from the right to your person or your right to decide what to do with your body’.
Such a conception of privacy has a wider scope than defamation as it looks at whether a person’s personal autonomy and individual space has been interfered with compared to defamation which is more specifically focused on the image/ reputation of a person.
This can be explained through Kanye v Robertson, where journalists gained access to a private hospital room attempting to interview the claimant and took pictures of his injury. This was not regarded as defamation as the interview and photos would be unlikely to reduce a right-thinking member of society's viewpoint as they would be aware of the person's vulnerable position. Nevertheless it is clearly defined under privacy as the photographs of the head injuries, as well as unauthorised entrance into the private hospital room, is an invasion as you are imposing on someone’s choice to keep this private, seen through the private room as well as the signs that indicated journalists were not allowed there. Across the Atlantic Article 8 of the European Convention of Human Rights (ECHR) establishes the ‘right to respect for private and family life’, showcasing the widespread nature of privacy law compared to defamation. Accordingly, privacy laws are often considered to be more intrusive than defamation laws.
How well do the available defences protect free speech?
Lastly, there are numerous defences available to allegations of defamation which have the mitigate its intrusive nature. The Defamation Act (2013) outlines the defences of privilege, truth, honest opinion and publication on matter of public interest. Coincided with need for, or at least likelihood of ‘serious harm’ and the focus on ‘right-thinking members of society generally’, these defences limit the arguably invasive tendencies of the law of defamation. Moreover, the law can be argued to create greater guidelines for correct journalism, which harbours an environment wherein the media can be trusted to inform the masses and ultimately democracy can thrive.
Defamation law is not an invasion of the media’s right to free speech. It carefully manages and balances the interest and rights of several parties. While it does objectively limit the freedom of the press, it does so to the benefit of democracy. Furthermore, the vast amount of defences on offer fosters proactive and truthful journalism, built on a culture of vigorous investigations and fact-checking. As much as these regulations might feel like a nuisance for journalist and pundits in the UK, overall, these laws play an indispensable role in our society.