Reframing Libel:
taking (all) rights seriously and where it leads
Andrew Scott and Alastair Mullis
Overview
 Principles underpinning the libel regime
 Application to regime design
 Proposals for a coherent libel regime
Principles
 Centrality of freedom of speech
 Respect for privacy and reputation
 Access to justice
Taking free speech seriously
‘[freedom of speech is] one of the essential foundations of a
democratic society and one of t...
Taking free speech seriously
‘Freedom of expression is, of course, intrinsically important: it is valued
for its own sake....
Taking free speech seriously
‘we too are concerned about the potential for misuse of libel law so as
to preclude investiga...
Principles
 Centrality of freedom of speech
 Respect for privacy and reputation
 Access to justice
Taking reputation seriously
 Reputation quintessentially public in nature: so how
can it be protected by Article 8 ECHR ?...
Principles
 Respect for privacy and reputation
 Centrality of freedom of speech
 Access to justice
Taking access seriously
 Access to justice important in principle and
practice
 Costs, CFAs and the ‘chilling effect’ of...
Application: purposes of libel
 Compensate for hurt feelings
 Compensate for unquantifiable presumed harm
 Compensate f...
Compensating Article 8 harm
 Hurt felt (harm) explained by social psychology
 Generally, degree of hurt relatively low
−...
Art. 8 harm: ramifications (I)
 Meaning:
− that (those) inferred by the claimant, subject to test of
capability / reasona...
Art. 8 harm: ramifications (II)
 Defences:
− emphasis on justification and fair comment
− no particular need for Reynolds...
Art. 8 harm: ramifications (III)
 Costs:
− changes on meaning and Reynolds would mean very
substantial reduction in costs...
Application: purposes of libel
 Compensate for hurt feelings
 Compensate for unquantifiable presumed harm
 Compensation...
Vindication & intangible loss
 Damages awarded to vindicate reputation: but is
a monetary award the best way to achieve t...
Vindication: ramifications (I)
 Vindication & intangible loss damages remedy to
be withdrawn
− mitigated by availability ...
Vindication: ramifications (II)
 Standing:
− corporations able to seek discursive remedy
 Defences:
− emphasis on justif...
 Downside for defendant:
− would have to provide discursive remedy – a prima
facie infringement of Article 10 right not t...
Application: purposes of libel
 Compensate for hurt feelings
 Compensate for unquantifiable presumed harm
 Compensation...
Special damages
 No reason why special damages should not
continue to be recoverable if provable
− note: entails shift in...
Endpoint: a two stream libel regime
 First stream: libel tribunal / county-court / (self-)
regulatory body
− to decide ca...
Endpoint: a two stream libel regime
 Second stream: High Court
− to consider claims for serious Art 8 harm and special
da...
Endpoint: a two stream libel regime
 Reflections
− majority of cases proceed through stream 1
− strong incentive to settl...
Reframing Libel:
taking (all) rights seriously and where it leads
Andrew Scott Alastair Mullis
a.d.scott@lse.ac.uk a.mulli...
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‘Reframing Libel: taking (all) rights seriously and where it leads’ presented by Professor Alastair Mullis and Dr Andrew Scott at the Reframing Libel Symposium, City University London, 4th November 2010.

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Reframing libel scott&mullis

  1. 1. Reframing Libel: taking (all) rights seriously and where it leads Andrew Scott and Alastair Mullis
  2. 2. Overview  Principles underpinning the libel regime  Application to regime design  Proposals for a coherent libel regime
  3. 3. Principles  Centrality of freedom of speech  Respect for privacy and reputation  Access to justice
  4. 4. Taking free speech seriously ‘[freedom of speech is] one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment... applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” Steel and Morris v United Kingdom ECHR 68416/01, at [87].
  5. 5. Taking free speech seriously ‘Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J… “the best test of truth is the power of the thought to get itself accepted in the competition of the market”… Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power” R v Secretary of State for the Home Department, ex parte Simms [2000] 1 AC 115, at 126
  6. 6. Taking free speech seriously ‘we too are concerned about the potential for misuse of libel law so as to preclude investigative journalism, to stifle scientific and medical debate, to undermine the important work of human rights organisations and other NGOs, or to invite the strategic legal tourist from abroad. To the extent that the law allows powerful individuals or corporate entities to ‘chill’ important, warranted comment concerning themselves, their activities, their products or their ideas, it is socially dysfunctional’ Mullis and Scott (2009) Communications Law, 14(6), 173-183, at 173
  7. 7. Principles  Centrality of freedom of speech  Respect for privacy and reputation  Access to justice
  8. 8. Taking reputation seriously  Reputation quintessentially public in nature: so how can it be protected by Article 8 ECHR ?  Social psychology: − key element in one’s self-esteem (self-worth) derives from perception of what others think − perceived harm to reputation causes harm to self- esteem / impact on psychological integrity of individual
  9. 9. Principles  Respect for privacy and reputation  Centrality of freedom of speech  Access to justice
  10. 10. Taking access seriously  Access to justice important in principle and practice  Costs, CFAs and the ‘chilling effect’ of libel  Access to justice for claimants
  11. 11. Application: purposes of libel  Compensate for hurt feelings  Compensate for unquantifiable presumed harm  Compensate for special (provable) harm  Vindicate / restore reputation
  12. 12. Compensating Article 8 harm  Hurt felt (harm) explained by social psychology  Generally, degree of hurt relatively low − reasonable to consider a damages ‘cap’
  13. 13. Art. 8 harm: ramifications (I)  Meaning: − that (those) inferred by the claimant, subject to test of capability / reasonableness / other − claimant incentive to plead mainstream meanings − no need for a ‘single meaning rule’ − no need for determination by jury − no need to argue defences relevant to multiple indeterminate meanings
  14. 14. Art. 8 harm: ramifications (II)  Defences: − emphasis on justification and fair comment − no particular need for Reynolds privilege  Standing: − corporations unable to recover damages for Art.8 harm
  15. 15. Art. 8 harm: ramifications (III)  Costs: − changes on meaning and Reynolds would mean very substantial reduction in costs  Access to justice: − enhanced access to justice for claimants − reduced chilling effect for defendants
  16. 16. Application: purposes of libel  Compensate for hurt feelings  Compensate for unquantifiable presumed harm  Compensation for special (provable) harm  Vindicate / restore reputation
  17. 17. Vindication & intangible loss  Damages awarded to vindicate reputation: but is a monetary award the best way to achieve this?  Preference for discursive remedies (mandated apologies, corrections, rights to reply, and possibly declarations of falsity) − achieve necessary symbolism − enhance public understanding (one purpose of Art 10)
  18. 18. Vindication: ramifications (I)  Vindication & intangible loss damages remedy to be withdrawn − mitigated by availability of Art 8 damages (for individual claimants) and impact of discursive remedy  Meaning: − no reason to divert from claimant’s capable / reasonable meaning(s) − no need for ‘single meaning rule’
  19. 19. Vindication: ramifications (II)  Standing: − corporations able to seek discursive remedy  Defences: − emphasis on justification and fair comment − Reynolds privilege positively inappropriate
  20. 20.  Downside for defendant: − would have to provide discursive remedy – a prima facie infringement of Article 10 right not to speak − commercially disadvantageous − BUT upside of enhanced journalistic credibility  Downside for claimant: − vindication not coterminous with intangible harm – ‘stain’ not entirely removed Vindication: ramifications (III)  Downside for defendant: − would have to provide discursive remedy – a prima facie infringement of Article 10 right not to speak − commercially disadvantageous − BUT upside of enhanced journalistic credibility  Downside for claimant: − vindication not coterminous with intangible harm – ‘stain’ not entirely removed
  21. 21. Application: purposes of libel  Compensate for hurt feelings  Compensate for unquantifiable presumed harm  Compensation for special (provable) harm  Vindicate / restore reputation
  22. 22. Special damages  No reason why special damages should not continue to be recoverable if provable − note: entails shift in burden of proof of harm  Meaning issue becomes less central − determination of meaning a by-product of demonstrating how damage caused  Defences: remain as at present
  23. 23. Endpoint: a two stream libel regime  First stream: libel tribunal / county-court / (self-) regulatory body − to decide capability of meaning; applicability of justification / fair comment defences − to award max damages £10k for Art 8 harm (soft cap imposed by dint of choice of route); no capacity to award special damages − to determine appropriate discursive remedy
  24. 24. Endpoint: a two stream libel regime  Second stream: High Court − to consider claims for serious Art 8 harm and special damages only; no damages for vindication / intangible harm − reliant on claimant’s capable (reasonable) meaning and harm-causing meaning respectively − cap on Art 8 harm benchmarked to damages for physical injury; no limit on special damages
  25. 25. Endpoint: a two stream libel regime  Reflections − majority of cases proceed through stream 1 − strong incentive to settle cases quickly − continuing potential for abusive use of stream 2? − potential for game-playing by (media) defendants?
  26. 26. Reframing Libel: taking (all) rights seriously and where it leads Andrew Scott Alastair Mullis a.d.scott@lse.ac.uk a.mullis@uea.ac.uk
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