Freedom of Speech:
In a free pluralist democracy freedom of expression is paramount to freedom as a whole
Freedom of expression is guaranteed by
Law (Art 10 ECHR & Human Rights Act 1998):
Article 10 part 1: Everyone has the right to freedom of expression: including freedom to hold opinions and to receive and impart information and ideas without interference by public authority.
Article 10 part 2: The exercise of these freedoms, in subject to such formalities are prescribed by law and are necessarily in democratic society in interest of: National security, public safety, prevention of crime, protection healthily morals, protection of reputation of rights of others, protecting the disclosure of information received in confidence of from maintain the authority.
Defamation – Libel and Slander
Both are defamation. The only real difference is that libel is something, which is permanent and can be seen whereas slander is not recorded permanently and is transient.
Slander cases are less rare than libel because it’s hard to prove the act happened without written or recorded evidence.
The defamatory effect of broadcast images is determined as libel by the effect of section 4 of The Theatres Act 1968
Where defamatory material is broadcast by radio or television it is libel by section 166 of The Broadcasting Act 1990
Multigroup Bulgaria Holdings v Oxford Analytica Ltd. (1997)
Classed as permanent even though transient
Therefore libel and not slander
(Deleted email can be recovered and read by others)
Nature of the Tort
Statement made about the claimant that reflects negatively upon the reputation they enjoy.
It must be of a nature that ‘lowers the claimant in the estimation of right thinking members of society’ or ‘which would tend to cause people to shun or avoid’ the claimant or would expose the claimant to ‘hatred ridicule or contempt’
Along with demonstrating that the detrimental statement has been made the claimant must show that the statement has been published.
Broadcast or published simply means disseminated
S.1 Defamation Act 2013 – “serious harm” to reputation
Defamation, weather its libel or slander, is an act that can damage someone’s reputation. This can be done by a story, photograph, video, any social media platform is capable of performing a defamatory act on somebody.
However, the truth is a defence to defamation.
Right Thinking People
The words must be defamatory in the view of right thinking people
Sim v Stretch  52 TLR 669 “an exclusive group of people who were neither too tolerant or too censorious”
Simply an attempt to identify the average, reasonable person who does not hold extreme views.
Some people are sensitive to opinionated comments and its crucial they don’t come across as facts.
Words may be in their natural meaning defamatory.
Words like; ‘Thief’, ‘Criminal’, ‘Adulterer’, ‘Racist’, ‘Pedophile’ are all capable of lowering a person in the minds of right thinking people.
Claimant replies on the natural meaning of the words.
Some words are ambiguous.
The meaning of words in common parlance change e.g. Gay
The claimant must show that the words carry a defamatory meaning that refers to the claimant.
The cases of Crow v Johnson (2012) and Lord McAlphine v Bercow (2013):
Crow v Johnson:
The leader of the RMT Union Bob Crow took London mayor Boris Johnson to court relating to issued leaflets of the 2012 London election campaign. However he had failed his libel act case.
In the judgement of the day of the hearing, Mr Justice Tugendat announced that ‘in the context of a hotly contested election” the words could not be held to be defamatory
McAlpine v Bercow
Sally Bercow, the wife of the House of Commons speaker tweeted ‘Why is Lord McAlpine trending?’ was seen libellous in the high court. An innocent emoticon was posted at the end of the question insinuated that Lord McAlpine was guilty of a crine he was wrongly accused of. As a result of Bercow agreed to pay £15,000 in damages for the libel tweet.
Innocent words may be defamatory because of extrinsic facts known to the reader.
X is ‘stepping out with’ Y is innocent on the face of it.
But not if Y is married to or in a long term relationship with Z (Bowman v MGN (2010))
Who can be Sued?
The originator of the statement is liable for his or her own deliberate or negligent publication
Every one repeating the libel (distributors)
Employers may be vicariously liable
All active publishers…
(But most claimants will sue those who have the most money – newspapers rather than journalists/ editors)
Most defences to defamation have recently been amended and put into statutory form by the Defamation Act 2013 (came into force on Jan 1 2014)
Consent (‘Leave and licence’)
Truth (s.2 DA 2013)
Honest Opinion (s.3 DA 2013)
Publication on matter of public interest (s.4 DA 2013)
Operators of websites (s.5 DA 2013)
Peer-reviewed statement in journals (s.6 DA 2013)
Reports protected by privilege (s.7 DA 2013)
Offer of Amends (plus accord & satisfaction)
No member of parliament can be sued for defamation
Truth (s.2 DA 2013):
It is a defence for the defendant to show that the imputation conveyed by the statement complained of is substantially true
Where there are multiple imputations, the defence still remains as long as imputations not shown to be substantially true do not seriously harm the claimant’s reputation
Taylforth v News Group Newspapers (1994) (Evidence of police witness crucial to supporting the allegation of oral sex in a car)
Aitken v Guardian Newspapers (1997) (last minute discovery of factual evidence to support the allegation of breaching ministerial guidelines)
Miller v Associated Newspapers Ltd (2005) (despite errors in its assertions the newspaper was fundamentally correct in its allegation against the claimant
Defence applies if 3 conditions are met:
1. It was a statement of opinion (not an imputation of fact)
2. The statement indicated (in general or specific terms) the basis of the opinion
3. An honest person could have held the opinion on the basis of any fact which existed at the time the statement was made (or anything which was asserted to be a fact in a privileged statement)
Publication on a matter of public interest (s.4 DA 2013)
This is a new defence and is based on the common law defence established in the landmark case of Reynolds v Times Newspapers Ltd (1999)
The defence is established if :
1. The statement was on a matter of public interest, and
2. The defendant reasonably believed that publishing the statement was in the public interest
Reynolds: Ten Factors
1. The seriousness of the allegation
2. The nature of the information
3. The source of the information
4. The steps taken to verify
5. The status of the informant
6. The urgency of the matter
7. Whether comment was sought from the claimant
8. Whether the article contained the claimants side of the story
9. The tone of the article
10. The circumstances of the publication
Reynolds: Subsequent cases
Flood v Times Newspapers (2012)
Allegation of corruption made against Sgt. Flood
Court of Appeal denies the defence – inadequate steps taken on verification
Supreme Court upholds the defence – significance of decision
Subsequently Sgt Flood wins 60K damages – Times did not update its story and report that he had been exonerated following investigation. Failure to report this was “a refusal to take a course which was professional, responsible and fair”
S.4(3) DA 2013 puts into statutory form the defence of ‘reportage’ (the neutral reporting of attributed allegations involving the claimant rather than their adoption by the newspaper)
Defendant does not need to have verified the information because the way the report is presented gives a balanced picture
In determining whether it was reasonable for the def to believe publication was in the public interest the court must make such allowance for editorial judgement as it considers appropriate
Offers of Amends:
Defence under Defamation Act 1996. Any party guilty of defamation may make offer of amends where:
Did not know/ have reason to believe words applied to claimant
Did not know that words were defamatory of that person (i.e. a mistake)
Offer must be in writing
Make suitable apology
Publish a correction in a reasonable manner
Pay compensation and costs (as agreed or ordered)
A right to privacy is guaranteed by Article 8 of the European Convention on Human Rights
Article 10 of the ECHR also recognises a right to freedom of expression
Human Rights Act 1998 s.12, – where a journalist is facing an injunction to prevent publication, courts will have regard to freedom of expression & compliance with any relevant privacy code, e.g. Clause 3 Editors’ Code
How does a court decide?
Relevant factors/ requirements:
Does the claimant have a reasonable expectation of privacy?
What were the expectations of any pre-existing relationship?
If it is private, how serious an invasion is it?
Is the information already in the public domain?
What is the claimant’s history of prior revelations?
Are there public interest grounds to warrant the intrusion?
Development of Privacy
Does not technically exist as a separate tort (why did the courts not develop this or parliament legislate for it?)
Has developed out of traditional breach of confidence
Is typically characterised as an action arising from ‘misuse of private information’
Campbell v MGN (2004)
Is ‘misuse of private information’ the same thing as breach of privacy?
Did the claimant have a reasonable expectation of privacy with respect to the information disclosed?
Does right to privacy outweigh freedom of expression?
What were the elements of private information in this case? (fact of drug addiction; fact that receiving treatment; receiving treatment at NA; details of NA therapy; photos of her going into/ out of the clinic)
Why were MGN entitled to publish the first two elements but not the remaining three? (public interest)
What is ‘different’ about the three? (note the overlap with Data Protection on the fifth)
Should the law go further?
Mosley v United Kingdom (2012)
What were the issues at stake in this case?
What arguments were advanced by Mosley?
What arguments were advanced by the UK govt.?
How did the ECHR justify its judgment?
Do you think they were right? How much of a ‘chilling effect’ would a pre-notification requirement have on political reporting and investigative journalism?
Is ‘entertainment’ as opposed to education/ information something that deserves the same level of consideration under freedom of expression?
General problem is that social media means that we are all now ‘publishers’ and should think carefully about what we say – Facebook, Twitter etc. all pose significant legal risks depending on how they are being used.
The Risks of Social Media:
• Offensuve/Malicious/Menacing communications
• Confidential Information/ Data Protection
 Article 10 http://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/9 [Accessed 15th April 2014]
 Crow v Johnson case http://inforrm.wordpress.com/2012/07/17/case-law-crow-v-johnson-libel-action-against-london-mayor-struck-out/ [Accessed 15th April 2014]
 McAlpine v Bercow http://www.independent.co.uk/news/uk/crime/lord-mcalpine-libel-row-with-sally-bercow-settled-in-high-court-8896773.html [Accessed 15th April 2014]