Thursday, October 12, 2006

Law Lords diss defo with public interest defence

UK Libel Laws, the basis for and close cousin of Australia's defamation regime, have made a quantum shift towards freedom of speech following a significant House of Lords decision:

..journalists will be free to publish material if they act responsibly and in the public interest and they will not be at risk of libel damages even if relevant allegations later prove to be untrue.

That's probably an over-optimistic journalist's take on what I'm sure is a finely-parsed ratio with a few devils in its complex detail. Nonetheless it's a huge change. Unlike Australia, whose High Court has given us a cautious right of political communication, I'm not aware of any previous moves by the UK's highest court to wind back their notorious libel laws in this manner.

The key test was whether a media organisation or newspaper acted fairly and responsibly in gathering and publishing the information, the judges said.

If the reporter and editor did so, and the information was of public importance, then the fact that it contained relevant but defamatory allegations against prominent people would not permit them to recover libel damages.

Assuming the Times have summarised it correctly, there are 3 elements to this defence, and all of them must be satisfied:

1) Acted Fairly;

2) Acted Responsibly; and

3) The issue is of 'Public Importance.'

I'm not that au fait on the intricacies of defo, feel free to correct me, but my reading is that in one fell swoop the UK has come from behind to firmly overtake Australia in the free communication stakes.

Our limited ability to 'discuss' political affairs, law since the mid 1990s, has not prevented a queue of politicians supplementing their super at the expense of the media, including small, dissident media like Crikey. And the new uniform laws aren't expected to radically extend this:

To some extent, the new defences of qualified privilege and honest opinion protect newspapers against claims from public figures; nonetheless, public figures will continue to take offence and threaten action, and this undeniably must have some chilling impact on papers, especially the smaller regional ones which cannot so easily afford to defend, let alone lose, a libel suit.

A side comment by the Law Lords may also flag consequences for other contentious areas like professional negligence:

The ruling also said that judges, with "leisure and hindsight" should not second-guess editorial decisions made in busy newsrooms.

Will that also start to apply to Obstetricians, Paramedics, even Lawyers who frequently find their split-second high-pressure decisions being forensically deconstructed for weeks on end in courtrooms?


Daniel said...

You might be interested in a case that I've discussed on my site. I'm still trying to track down the original source and will let you know when I find it! Cheers!

Legal Eagle said...

Interesting! Did you read the recent High Court case (ABC v O'Neill) on defamation and freedom of speech? I'm still not quite sure what to think of it.

Splatterbottom said...

Definitely steps in the right direction. The only remedy for defamation should be appropriate correction. I have never seen anyone win a substantial defamation award who wasn't already well off.

Armagnac Esq. said...

Haven't seen O'Neill, will look up.

Re future directions, I'd like to see a greater emphasis placed on allowing reasonable criticism provided this is directly related to what the person does. For example a pollie, you'd get additional leeway on something definitely related to their probity and work, such as corruption, but not necessarily for personal attacks and gossip about their private life that, while clearly being damaging, has at best a spurious relationship to their ability to do the job.

To put it another way I think there is too much leeway for personal attack based on private lives and not enough for attacking their conduct in their job and directly related matters.

R H said...

Moral attitudes change. For instance, years ago a politician's career would be ruined if it were revealed he was a homosexual.

An anonymous blogger hiding behind a false name can't sue for damages. No offence has been committed. On the other hand, known persons can sue, and rightly so.

Robert, esq.