Defamation: Global Perspectives
Parallel Event to the 38th Regular Session of the UN Human Rights Council
20 June 2018
Palais des Nations, United Nations at Geneva
Opening Remarks of Jonathan Price
In the time available to me, I’m going to try to paint a picture – a necessarily impressionistic picture – of the current state of the law of defamation in the United Kingdom. As I will set out, the libel lawyers of London, though they may be a small and exclusive club, have a disproportionately long and chilling reach.
The sanctioning of speech is extremely dangerous. The freedoms we have today, and the progress those freedoms have engendered – in welfare, security and culture – have been enabled by the flow of thought, from person to person, community to community, and country to country. Without such freedom of expression, democracy itself is impossible. It is for these simple, foundational reasons, that the Enlightenment which heralded the dramatic acceleration of scientific and social progress which we enjoy and rely upon so much today, correlates to the emerging importance of the Lockean notion of free speech as a fundamental right. You simply cannot have progress and the fruits of progress without it.
Nevertheless, defamation laws are of course universal. All countries recognise a private right of action for insult and damage to reputation, and most countries still retain criminal sanctions for a variety of wrongs, from private insult to offences of a more public nature, such as desecration of a national symbol.
Take the three top-ranked countries in RSF’s 2018 World Press Freedom Index – Norway, Sweden and the Netherlands. Of those, only Norway is free of any criminal defamation or insult provisions, and that has only been the case since 2015. Of the 57 OSCE participating States, criminal defamation has been done away with in only 15. The UK is one such state. The offences of blasphemy, criminal libel and sedition were officially abolished in 2008 and 2009, although in practice they had been obsolete for many years prior to that.
Some criminal insult provisions remain, but these are modern laws borne out of anti-discrimination legislation crafted in the 1960s and 70s and since updated, and they are very much public in character. They seek to engender respect for those with protected characteristics, and whilst they are sometimes used in ways which may be considered oppressive – for example many have criticised the conviction of a man who trained his dog to raise its paw in a Nazi-style salute when it heard certain anti-Semitic phrases – on the whole these provisions have been proportionately applied.
But what I’m going to talk briefly about today is specifically civil defamation law, in particular the procedure and the substantive law and of English libel.
We very often hear how defamation and insult laws contain over-broad and vague provisions, making them impossible to predict and too easy to manipulate, particularly for political ends: a censors’ charter. This was the reasoning behind the Lesotho Constitutional Court’s recent ruling that criminal defamation was unconstitutional, and it is welcome to see such progress on the rolling back of criminal defamation laws in other parts of Africa.
If anything, English defamation law suffers from a problem at the other end of the spectrum, but equally concerning: its rules are intricate and manifold; its procedure richly layered. So much so that it is common for defamation actions to get bogged down in torturous procedural and technical wrangles, with little of substance apparently decided. Indeed, the English law reports are full of procedural decisions arising in defamation cases, despite the number of defamation trials annually numbering sometimes in the single figures. A couple of years ago I personally appeared in two contested defamation trials in one year, which accounted for something like a quarter of the grand total in England and Wales.
Many lawyers and a good deal of judges have lamented the complexity of English defamation law. Those who practise it form a specialist coterie – “the libel bar” – situated in the narrow Dickensian lanes of the Temple, populated by a narrow self-selecting group of mostly middle-aged, upper middle class white men, a disproportionate number of whom are, it has to be said, called Jonathan. Defamation law is so specialised that it can only be tried in the High Court, and now only by a small handful of judges – some of whom are themselves former libel barristers – because there is an acceptance that most other judges are simply incapable of properly understanding its niceties.
The result is a set of laws and rules that are so obscure as to be more or less meaningless to lay people. But – and here we see a similarity with the overbroad and vague provisions elsewhere in the world – English defamation law contains crucial aspects which depend upon the summary assessment of a single judge for their determination. I have in mind in particular the linked issues of “defamatory meaning” and “serious harm”. These lie at the heart of a defamation action, yet they are ruled upon in the abstract, by a judge sitting alone, hearing only from counsel. Until recently, issues such as this might be left to a jury to decide, and the abolition of juries in defamation cases was a sensible cost-saving provision. However, there is now a concerning reliance upon judges to adjudicate upon the meaning of expressions used by ordinary people in their routine daily online interaction with each other. There have been a number of cases recently where, I would argue, that process has gone awry, giving rise to liability on the part of defendants for off the cuff remarks made on social media, and crippling them financially.
With such complexity comes increased expense. A libel case that goes to trial at the Royal Courts of Justice on the Strand in London is likely to cost at least a quarter of a million pounds, or double that, and possibly ten times that amount. That’s right: the costs of litigating over a single tweet could easily exceed a million pounds. These are life-altering sums of money for private individuals. Criminal defamation may have been abolished, but the consequences of falling foul of the civil law can be just as dire, if not more so.
So, the position in England and Wales is this: libel law has been developed and is operated by a tiny highly educated group of lawyers from a particular social echelon, yet it affects everyone who might ever post a comment on Facebook or like a tweet.
And it affects those people not just in the UK, but in all places on Earth with an internet connection. As long as material available online, no matter who put it there or where they were when they did so, is downloaded in England and Wales, there is a good chance the High Court will entertain a defamation complaint in relation to it. So, it was no surprise to me to learn shortly after her assassination that Daphne Caruana Galizia – the bravest and most principled journalist you’re ever likely to find, but a journalist whose singular focus was corruption and political dishonesty in her home country of Malta – was being threatened with ruinous defamation proceedings by firms in London. It was depressingly predictable.
Concern over these issues, including as expressed by the European Court of Human Rights, has led to an attempt at reform. The Defamation Act 2013, enacted following an energetic campaign, including by English PEN, contains a number of provisions that, it was anticipated at least, would give more robust protection to publishers against frivolous or foreign libel suits. As to whether those new provisions have solved any of the issues I have outlined above, the jury is still out. The early indications are that little has changed, and I note that the new legislation appears to have done nothing to deter the aggressive threats made against Daphne Caruana Galizia. But the biggest issue of all – the eye-watering expense of bringing or defending libel proceedings – remains unaddressed. And as things stand, the limited reforms in the 2013 Act do not extend to Scotland or Northern Ireland, leaving an unsatisfactorily inconsistent picture across the UK.
So, whilst criminal defamation is no longer a feature on the landscape of United Kingdom law, and there has at least been some attempt to reform the civil law of defamation, there is no reason to feel complacent.
Doughty Street Chambers