Thursday, August 14, 2008

The Human Rights Commitee on British Libel Law.

The UN Human Rights Committee has at its recent session criticised British libel law.(1) In its concluding remarks to its review of the United Kingdom, which can be downloaded here, the Committee states:
"The Committee is concerned that the State party's practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as "libel tourism."(2)

The Committee recommends that the United Kingdom consider adopting a "public figure defence" similar to the defence formulated by the US Supreme Court in Sullivan v New York Times.(3) A public figure defence would prohibit public figures from recovering damages for libel unless the defamatory statement was made with 'actual malice' and the claimant suffered 'actual injury'.

I couldn't agree more with the Human Rights Committee, as British libel law does limit free speech.(4)

The problem with libel law is that it is actionable per se, i.e. the claimant does not need prove that a statement was false or that it caused damage, but must merely prove that was defamatory, it referred to him or her and that it was published.(5)

The defences to a libel claim are primarily these: 'justification" (truth) 'fair comment' and 'qualified privilege.' The later has been expanded by the House of Lords of in Reynolds v. Times Newspapers (6) and Jameel v. Wall Street Journal Europe, (7) giving defendants a defence when the comment in question is in the public interest. These decisions do not, in my opinion, go far enough.

The UK courts have not been able to develop the law in line with the US Supreme Court primarily because the UK does have an entrenched constitution guaranteeing free speech. Article 10 of European Convention on Human Rights does guarantee the freedom of expression, but the convention has only been enforceable in domestic British courts since 2000 and Article 10 is not formulated as strongly as the free speech clause of the US Constitutions' First Amendment.(8)

Hopefully the criticism by the Human Rights Committee will make the British government reconsider the law.

(1) The Human Rights Committee is treaty based judicial committee which periodically, and on application, considers whether state parties to International Covenant on Civil and Political Rights comply with their obligations under the covenant.

(2) See paragraph 25.

(3) 376 US 254. (1964)

(4) Professor Tony Weir makes this comment: "The claimant’s interest is in what people think of him, the defendant’s interest is in saying what he thinks, or thinks he knows. Reputation against expression, therefore. A balance has to be struck. The common law of England has struck it in quite the wrong way. " see Tony Weir, An Introduction to Tort Law 2nd ed. (Oxford, Oxford University Press, 2006) p. 175

(5) See Simon Deakin, Angus Johnston and Basil Markesinis, Markesinis and Deakin‘s Tort Law 5th. ed. (Oxford, Oxford University Press, 2003), 651-666.

(6) [2001] 2 A.C. 127

(7)[2006] 3 W.L.R. 642

(8) Critically, Article 10 contains the qualification that freedom of expression may be subject to such restrictions which are necessary for the "protection of the reputations or rights or others."


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