A fight for rights

The implementation of the Human Rights Act 1998 has created a challenge for the courts to balance the rights of the

individual with freedom of expression. Rosalind English reports

The compatibility of defamation proceedings with Article 8 (right to a private life) and Article 10 (right to freedom of expression) of the European Convention on Human Rights has been subject to consideration by the domestic courts since the implementation of the Human Rights Act 1998.
The courts have had to achieve a balance between the freedom of the press and respect for the reputation of an individual.
Also under consideration has been a European Court of Human Rights admissibility decision relating to the on-availability of legal aid for defamation proceedings.
Boris Berezovsky (2) Nikolai Glouchkov •(1) Forbes Inc (2) James W Michaels (2001) 31/7/2001
The Court of Appeal held that the requirement on the publisher of an article to be able to justify the sting of that assault was not a disproportionate invasion of the right to freedom of privacy. The article implied, without factual justification, that the applicants had been involved in serious criminal activities. The court considered that the requirement pursued the legitimate aim of protecting people from the publication of damaging and unjustifiable falsehoods.
This case provides an answer to some of the conjectures relating to libel law in this country, and the compatibility of some of its more baroque features with Article 10 of the convention. The reason why these conjectures abound in the first place is that libel law is so different in other contracting states. None of the Strasbourg cases on defamation provide any guidance on the convention-compatibility of such arcane concepts as Lucas-Box meanings, qualified privilege, or the burden on the defendant to provide justification that addresses the “sting” of the verbal assault rather than its literal message. Most of the Strasbourg court's ponderings on defamation law relate to the use of fines for defamation as being the general blunderbuss to keep the press in check.
The Court of Appeal's approach here is sensible and helpful. These various requirements, which impact more on a defendant than a claimant in libel cases, are not blandly asserted to be compatible with the convention, but rather more precisely tied in with the convention's own obligation that the state regulates its media in such a way that it respects private reputations and dignity, as well as fostering public debate and freedom of expression. Thus the various tests and steps in libel litigation are presented as procedural safeguards for individual reputations, rather than oppressive limitations on press freedoms. At each of these separate steps in the proceedings – testing exaggeration and error, assessing fair comment and qualified privilege – the court is reminded of the importance of giving adequate weight and liberty to press freedom.
Geoffrey Robertson QC of Doughty Street Chambers, Heather Rogers of Matrix Chambers and Sara Mansoori of 5 Raymond Buildings instructed by Pinsent Curtis Biddle for the appellants. Desmond Browne QC and Matthew Nicklin, both of 5 Raymond Buildings, instructed by Peter Carter-Ruck & Partners for the respondents.
Kerry O'Shea •(1) MGN Ltd (2) Free4internet.net Ltd (2001) 4/5/2001
The first defendant published the second defendant's pornographic advertisement relating to an adult internet service provider. The advertisement featured the picture of a well-known glamour model with a caption inviting readers to join the service provider in order to see pictures of her. The advertisement did not name or otherwise identify the woman portrayed, but it was alleged that the woman in the advertisement was identical to the claimant, and persons who read the words together with the photograph and who knew or were acquainted with the applicant would reasonably have understood them to refer to her. The claim was dismissed on the grounds that the application of the strict liability principle to the lookalike situation would be disproportionate to the legitimate aim of protecting the reputations of lookalikes and would contravene Article 10 of the convention.
Harsh though the original strict liability rule seemed to be on the publisher, the business of publishing does carry risks. The minimal chance of this sort of coincidence rebounding on a publisher, who, in the same way as the defendants in this case, benefits from the vast profits of pornography, is a risk that such a party can adequately afford. As Sir Wilfred Greene, then Master of the Rolls, said in the case of Newstead •London Express Newspapers (1940) 1 KB 377: “If there is a risk of coincidence it ought, I think, in reason to be borne not by the innocent party to whom the words are held to refer, but by the party who puts them into circulation.”
In this case, the publisher was innocent of the resemblance between the photograph of 'Miss E' and the claimant, and of course it seems unfair to impose liability. But removing strict liability shifts the almost impossible burden of proving bad faith on the part of the publisher onto the claimant, whose reputation has been damaged through no fault of her own. That is why the courts originally imposed liability for libel on publishers who inadvertently disseminated material whose meaning was defamatory only to readers with special knowledge – it is worth recalling Lord Reid's words in Morgan •Odhams Press (1971) 1 WLR 1239: “In deciding the question one would require to have in mind not only the innocent publisher, but also the person who wishes to injure the reputation of the plaintiff, but tries to avoid liability by disguising his libel so it conveys nothing to the ordinary reader, but causes those with special knowledge to infer that it is aimed at the plaintiff.”
This judgment greatly reduces the chances of innocent individuals who find that their reputation has been severely compromised by a picture researcher who has found a lookalike to adorn some piece of scurrilous material. This has become even more widespread since the proliferation of internet soft and hard-core pornography sites. Mr Justice Morland observed that it would impose an impossible burden on a publisher if they were required to check if the true picture of someone resembled someone else who, because of the context of the picture, was defamed (paragraph 43 of the judgment). This may be true, but no publisher in their right mind would ever undertake such an exercise. If they are in the business of publishing material in which the content is likely to be defamatory, they are doing it for a profit, and can therefore well afford to bear the burden of the odd libel action when they unintentionally link some innocent third party with damaging copy.
There is little or no guidance from Strasbourg on the Hulton •Jones (1910) AC 20 point. Most cases and commentary on the subject of defamation relate to defences for defamation, particularly where public figures are involved. However, in all the cases where the Strasbourg court has been called upon to consider whether an action for defamation is a disproportionate interference with the publisher's freedom of expression under Article 10 of the convention, it seeks to balance that right with the reputation of rights of others. This is preserved not only in Article 10(2) but of course in Article 8 as well. It may well have been the case that if the claimant here had pressed home her rights under Article 8, the Article 10 rights of the publisher may not have carried the day. But despite the case of (1) Michael Douglas (2) Catherine Zeta Jones (3) Northern & Shell plc •Hello! Ltd (LTL 21/12/2000), Article 8 has not yet evolved into a fully-fledged privacy tort and aggrieved individuals still have to rely on the intricacies of libel litigation to protect their standing in the eyes of others.
Geoffrey Shaw QC of 1 Brick Court instructed by Peter Carter-Ruck & Partners for the claimants. Mark Warby of 5 Raymond Buildings instructed by Davenport Lyons for the first defendant and Henri Brandman & Co for the second defendant.
John McVicar •United Kingdom (2001) (Admissibility Decision) 29/5/2001
The applicant wrote an article for the magazine Spiked in which he suggested that Linford Christie had used banned performance-enhancing drugs. He alleged that the lack of legal aid available to defend defamation proceedings constituted a breach of the right to a fair trial as protected by Article 6 of the convention. He further complained that the finding against him violated his right to freedom of expression. The European Court of Human Rights considered that the arguments of the parties raised complex issues of law and fact, and held that the application was admissible. An examination of the merits will be undertaken by the European Court of Human Rights at a later date.
It is a long established canard of Strasbourg case law that the non-availability of legal aid for defamation does not amount to a denial of access to court for the purposes of Article 6 of the convention – Winer •United Kingdom (1986) 48 DR 154; Munro •United Kingdom (1987) 52 DR 158; (1) Steel (2) Morris •United Kingdom (1993) Application No.00021325/93. So why is this case any different? The European Court of Human Rights appears to have accepted the applicant's argument that his position could be distinguished from all these other cases. He claimed that he had been uniquely prejudiced by the exclusion of the evidence of two of his best witnesses as a consequence of his misunderstanding of the requirements laid down for valid service of witness and expert evidence under the rules of the Supreme Court and order for directions. The applicant maintained that no such misunderstanding would have occurred had he been legally represented.

McVicar alleged that the lack of legal aid to defend defamation proceedings constituted a breach of the right to a fair trial

When the court comes to consider this case on its merits, two predictions may be made. One is that it will reject the Article 6 claim for fear of being accused of forcing states to supply financial support for non-meritorious libel claims, extending this friviolous litigation game, in other words, beyond the circle of the rich. But it is also likely, given the attitude of the court to claims for press freedom, to cave in to the same argument about lack of funding for libel defendants under Article 10. If these predictions are realised, it will be open season again for libel lawyers.
David Price of David Price & Co for the applicant. H Llewellyn of the Foreign and Commonwealth Office for the respondent Government.
Rosalind English is an associate tenant at One Crown Office Row and provides civil commentary for Lawtel Human Rights