Friday 10 August 2012

Free Speech is Protected and Encouraged by the Courts in England, Provided you don’t Defame People

Let us not beat around the bush, London does have the label of being the number one city for bringing libel proceedings, this has in turn earned it the reputation of being the capital of ‘libel tourism’.   
However, in my opinion, many pundits has failed to mention the fact that many individuals and small companies are defamed on a daily basis and cannot afford not to defend themselves against these defamatory attacks. For such companies and individuals, their reputation is their biggest asset: it is their trust factor that helps them bring in and retain their client base.

Small companies and individuals are at the heart of defamation cases. In my experience, I have seen far more individuals and small companies suffer at the hands of an unscrupulous acquaintance, a disgruntled employee or a ruthless pirate type competitor, rather than a “David v Goliath” scenario where the lonely reporter is unable to write an article because a behemoth corporation does not want a piece to be aired. So the real issue that the Government has to deal with is where the balance should lie between an individual’s right to free speech and another’s right not to be defamed. The Government in my view has set the right balance and already has many existing laws to protect reporters and businesses alike. One such example is called the “Reynolds Privilege” which in simplistic terms gives reporters a defence against cases of alleged defamation, if the piece is in the public interest and they have acted responsibly in testing the merits of their information. This principle was recently upheld by the Supreme Court’s panel of five judges in Flood v Times Newspapers [2012] UKSC 11.

There are many reasons why claims of defamation are brought in London’s High Court. It is not by chance, not by luck, and not because it is deemed Plaintiff (Claimant) friendly. In my opinion, the main reason for this label, is because London can boasts the most robust legal system and the most knowledgeable Judges, who are able to deal with complex defamation proceedings, which are now more often than not, fought over material that is published online, to billions of internet users, rather than just in the printed word.

Some pundits have stated that our legal system, in respect of defamation cases, gives the Claimant substantive protections – well try telling that to the many Claimants who have had their cases struck out at the first instance by an intellectual and specialist libel Judge of the High Court because the Judge has quickly identified that the claim has no merit, or lacks substantive publication and therefore cannot be deemed to have sufficiently damaged one’s reputation. Or, even those who fight libel trials, before a jury of their peers, only to lose at the end.  The Court is not stupid, and does not generally waste its time dealing with cases that have no merit.

The Claimant is not given an inordinate amount of protection: the playing field is at best level, or if anything sloped towards the Defendant, for various reasons i.e. under the Civil Procedure Rules the Defendant can apply to the Court for the Claimant to make an advance payment into Court in respect of their legal costs. This immediately places the burden on the Claimant to essentially “put up or shut up”. If they can’t pay the relevant cost sums, the case stops there and then.  This is a widely used tactic by Defendants and one that the Claimant does not have the benefit of.

However, the fact of the matter is simple, if you accuse someone of something you must be able to prove it, or at the very least rely on a defence in law.  This mantra is what underpins every aspect of the British legal system. If you are accused of a crime, the Police and Crown Prosecution Service must be able to prove this to the Court’s satisfaction before they are adjudged as guilty; if you accuse someone of breaching a contract in a civil case, you must be able to prove this to the Court’s satisfaction before you are awarded damages, and in turn if you accuse someone of something that in turn damages their reputation, you must be able to show that it is true (or rely on one of the other defences). This is what the entire British justice system was founded upon, innocent until proven guilty.

There is no doubt that the freedom of speech laws vary significantly in Britain and in the USA. The USA derives its laws from its Constitution. Even now, with the development of the internet and the fact that more libel cases are fought over material posted online, third party publishers, such as Google, You Tube and Facebook, who I often interact with as part of my day to day work, are protected from libel action under federal legislation. 

The fact of the matter is that when an author or journalist writes something that could be considered defamatory, and therefore damaging to one’s reputation, these comments should be permitted to be heard and challenged in the correct forum, that being a Court of law, something the Leveson Enquiry has proven to the public. To say that it is expensive and people are bullied by those with wealth is frankly a cop out. The Courts are now seeing more and more litigants in person, who are given a degree of flexibility when it comes to procedural matters, so to rely on the old adage of ‘I cannot afford a solicitor’ is poppycock. If your allegation is questionable, either don’t say it, be able to prove it, or rely on another defence afforded to you by the law. Very simple.

The proposed new Defamation Bill will change the goalposts. I do not feel that commentators give it enough credit. For example, the single publication rule will prevent action against comments made online that are over one year old, therefore trying to equalise the position between the printed word and the virtual word. As such, cases involving archived content or cached content on the internet may well become a thing of the past.

The development of British libel law has not come just from a statute enacted over 100 years ago, but has developed by means of substantive case law, this is why we have defences such as the ‘Reynolds’ defence.  London may be considered the libel capital of the world, but that said, the Court does not always accept jurisdiction to deal with matters, and there are specific legal tests that must be satisfied to achieve this. So yes London may be the ‘libel tourism’ capital of the world, but to become a libel tourist here you must have the right VISA for entry i.e. the Court must be convinced as to the merits, and jurisdictional aspects of your claim, before it will allow you to enjoy the sights and sounds of this much sought after ‘tourist resort’.

John Spyrou
Head of Media and Internet Law
Bains Cohen Solicitors LLP

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