Mistakes and libel

For the third time, Britain’s highest court is considering one of the principal questions affecting the media under England’s notorious defamation laws.

In Flood v Times Newspapers, the Supreme Court has been asked once again to decide when the media should be permitted to escape liability for publishing a false defamatory allegation. In this case, The Times published allegations of corruption against a police officer relying on the facts of an Independent Police Complaints Commission investigation, but without any serious inquiry of its own. The IPCC subsequently exonerated the officer.

On a deeper level, this case asks when our vital democratic need for robust scrutiny of public affairs should override the rights of individuals not to have their reputations publicly ruined.

The Court (at that time the House of Lords) first tackled the problem of mistaken defamatory publications in 1994 in a case concerning alleged corruption by the former Taoiseach of Ireland, Albert Reynolds. It concluded that where a story concerns a matter of public interest and the journalists and editors concerned behaved responsibly, the publisher may avoid liability for defamation. To make that more certain, the judges endorsed ten indicative factors, including the circumstances and urgency of the publication and whether the person defamed was contacted.

That undoubtedly sounds like a sensible solution. It contains, however, a basic problem that has defied any definitive resolution. To ask whether a journalist has acted responsibly is entirely unlike asking whether a doctor or engineer has acted in accordance with their professional standards, which have no equivalent in the more loosely-governed world of journalism. The responsible journalism test therefore leaves a wide margin of discretion to be resolved by the courts.

In the United States, the answer has been that the state, in the form of judges, should not be determining standards of journalism, setting a precedent that has excited the envy of journalists here and everywhere. Under the US constitutional right to free speech, American courts have concluded that any person broadly described as a public figure can only succeed in a defamation action if he or she can prove that the publisher of the defamatory allegation was motivated by actual malice. In short, it is virtually impossible for a public figure to win a defamation case in the United States.

The European Court of Human Rights has however gradually distanced itself from these American principles. It has instead decided that the right to personal reputation is rooted in the fundamental right to respect for private life. As a result, under the Human Rights Act, British courts must give reputation the same weight as freedom of expression where a defamatory allegation harms an individual’s personal integrity.

Without a renunciation of the European Convention on Human Rights, Parliament must work within those same constraints. Indeed, the defamation reform bill currently before Parliament does no more than attempt to clarify the existing rules on mistakes and responsible journalism. And for the wider British public, the most basic protections of reputation remain out of reach as the ruinous costs of these complex actions can only be borne by those who have access to deep pockets.