Tort Law - Defamation - England & Wales 2012-2013
Defamation
Feldman (2002): two major rationales to justify freedom of expression * Mill’s instrumental value of freedom of expression on rule-utilitarian analysis: it is best not to censor (unless harmful) anything for risk of censoring truths. * Democratic rationale suggests freedom of expression allows crucial political discourse, but this is less convincing in a representative system where expression is only heard at elections
Lord Nicholls in Reynolds v Times Newspapers (2001) – views democratic rationale positively
Art.10 ECHR – expression of information, opinion, ideas. Restrictions possible if ‘prescribed by law’ and ‘necessary to democratic society’ * s.6 HRA 1998 – unlawful for public authority (incl. courts) to act incompatibly to ECHR. * Ovey and White (2006) – Court consistently gives protection to publications/speech, it views these as central to the protection of other rights. * Lord Steyn in Reynolds – ECtHR proceeds on fact-specific basis. But nevertheless speech more specifically protected than other forms of expression in law on defamation.
Chilling effect – prospect of action on defamation as deterrent to publication generally (falsehoods and truths) * Derbyshire v Times Newspapers (1993) – notion takes place in judicial discussion: worsened by burden of proving truth, scale of damages, absence of financial support, uncertainty of Reynolds privilege. Held – local gov’t councils/political parties may not sue in defamation. Breach of right to free speech. * Barendt et al. (1997) – two forms of chilling effect * Direct chilling effect – omission of material; ‘if in doubt strike it out’ * Structural chilling effect – prevents creation of certain material (self-censorship if taboo) * Steele – note, English protection of opinion rather than fact adverse effects on quality of reporting
Nevertheless, defamation actions protect reputation * Companies as well as people may sue – no added
Feldman (2002): two major rationales to justify freedom of expression * Mill’s instrumental value of freedom of expression on rule-utilitarian analysis: it is best not to censor (unless harmful) anything for risk of censoring truths. * Democratic rationale suggests freedom of expression allows crucial political discourse, but this is less convincing in a representative system where expression is only heard at elections
Lord Nicholls in Reynolds v Times Newspapers (2001) – views democratic rationale positively
Art.10 ECHR – expression of information, opinion, ideas. Restrictions possible if ‘prescribed by law’ and ‘necessary to democratic society’ * s.6 HRA 1998 – unlawful for public authority (incl. courts) to act incompatibly to ECHR. * Ovey and White (2006) – Court consistently gives protection to publications/speech, it views these as central to the protection of other rights. * Lord Steyn in Reynolds – ECtHR proceeds on fact-specific basis. But nevertheless speech more specifically protected than other forms of expression in law on defamation.
Chilling effect – prospect of action on defamation as deterrent to publication generally (falsehoods and truths) * Derbyshire v Times Newspapers (1993) – notion takes place in judicial discussion: worsened by burden of proving truth, scale of damages, absence of financial support, uncertainty of Reynolds privilege. Held – local gov’t councils/political parties may not sue in defamation. Breach of right to free speech. * Barendt et al. (1997) – two forms of chilling effect * Direct chilling effect – omission of material; ‘if in doubt strike it out’ * Structural chilling effect – prevents creation of certain material (self-censorship if taboo) * Steele – note, English protection of opinion rather than fact adverse effects on quality of reporting
Nevertheless, defamation actions protect reputation * Companies as well as people may sue – no added