Freedom of speech, does it still exist?

Press Focus: Media Law Article

Urgent Change needed in Libel laws to defend Journalists Journalists are calling out for a change in the present libel laws which govern the publishing of defamatory statements. Freedom of speech seems to be dissolving, as the claims against publications win court cases due to the complicated and hard to prove libel laws and defences. Claimants who believe they have been defamed and hold stature and wealth, can easily afford to pay the court fees, and can be awarded huge damage payments. In cases of defamation the Journalist or publication has some defences, although these can be very hard to prove in court. In these times, a Journalist must collect evidence to support and prove their story in court.

Evidence of the high fees Lawyers are now charging for claims of libel in court, has led Labour MP for Rotherham, Dennis MacShane, to call for limitations on their legal fees. These high fees ensure poorer members of society are not able to defend themselves from defamation or claim damages caused by these defamatory statements. Modern libel and slander laws originally descended from English defamation law, the law’s history is somewhat obscure. Civil actions for damages were frequent as long ago as the reign of Edward I (1272-1307), the first fully reported case of libel being widely accepted as punishable within common law was tried in the reign of James I (1566-1625). Inside defamation (also called calumny and vilification); there are two forms from which the common law origins of defamation derive. Libel, which is committed by publishing a defamatory statement in a permanent form or slander, which covers defamatory statements of unrecorded speech.

Although a statement may be derogatory, certain circumstances allow this to be permissible in the law. In some defences against defamation the claimant has a much easier position proving defamatory statements in a court of law. The claimant must prove to the jury, that the statement complained of was defamatory, that it refers to the claimant in question and that the statement was published, in order to claim for damages. For the defendant, usually a journalist, proof against defamation, as decreed by law, is much more difficult, the main reason for being the fact a court views defamatory statements as false unless the defendant can prove otherwise.

Although as a journalist you can always document your evidence to bring before the jury but as some cases show this is not always enough. Director of the English branch of PEN, Jonathan Heawood, said in December, “We don’t want to be scared of making those statements because a really wealthy individual or corporation can simply slap a writ on you” This statement truly describes the feeling among publishing writers in society today, a fear of having the book thrown at you for freedom of speech. When a journalist has made a true mistake there is the defence ‘offer of amends’, however a claimant may challenge the defence by proving the writer or publisher did indeed know the words were defamatory and false or did know the words referred to the claimant.

Another defence against defamation is ‘justification’, in Taylforth v News Group Newspapers (1994), The Sun were able to successfully use ‘justification’ against Ms. Taylforth as they had a police witness to give evidence for their defence that the claimant and her partner were seen having oral sex in a parked car. A crucial issue today and a strong defence, is ‘fair comment’ in which a defendant must prove the statement complained of was not a fact but an opinion, that it was a matter of public interest, any facts the comment was based on are true and the comment was made without malice (which essentially means it was made honestly). Although ‘fair comment’ can be just as difficult and prejudiced as the other defences for example; In Galloway v Telegraph Group Ltd. (2006), the court of appeal denied the Telegraphs appeal against the Labour MP’s victory stating he was not received money from Saddam Hussein’s regime. They remained to say a headline featured, which read “damming new evidence” was not a comment but a statement that the Telegraphs evidence stated Mr. Galloway was guilty. Journalism’s purpose is to inform the public of issues within the public’s interest, but the law and juries the way they are now are strangling freedom of speech with particular and detailed conditions of publication.

In 2006, the Evening Standard criticised Gordon Ramsey’s television programme claiming some scenes were faked, once proved to be a false claim Ramsey won £75,000. Although mistaken it is difficult to decide whether the Evening Standard were not merely investigating, perhaps mistakenly for the public’s interest. Human right lawyer Geoffrey Bindman backs a review of the libel law, he said “There is a difficult balance to be struck between freedom of expression and the protection of the innocents from damaging falsehoods and invasion of legitimate privacy. In Britain, the pendulum has swung too far towards censorship” As we can understand from this human rights lawyer that freedom of speech and the defence of fair comment are rapidly disappearing or becoming more obscure. In the Cruise v Express Newspapers (1998) court case, Mrs. Kidman and her husband of the time Tom Cruise, won a 6 figure sum from the Express. This was after the paper falsely claimed their marriage was only to hide the fact they were both homosexual. The paper was obviously derogatory and could cause damage to their reputation and livelihood; however the claimants being wealthy A-list celebrities hardly needed a 6 figure damages sum. This is why some critics are unhappy with the concept of a jury, ‘plucking from thin air’ a figure for compensation and damages.

Another very serious and undermining problem within the libel laws as they stand presently is a growing problem which critics are calling ‘libel tourism’. As Junior Justice Minister Bridget Prentice said in December in Parliament, the Government would also [like to] examine whether the civil law should be changed after MPs complained that wealthy foreigners were using British courts to silence investigative journalists. These problems, details and corruptions within defamation law are causing a disruption in the fine balance between the News and the Law. Investigative journalism is also greatly suffering with journalists scared to report, the government must act now and stop these phenomenal fees and courts cases over libel, slander and defamation.