Defamation. Caution is the name of the libel game

The judiciary remains hostile to an extension of the law of privilege to embrace a New York Times v Sullivan-style public figure defence. It believes that such a far-reaching change requires legislation.

Sir Michael Davies, in striking out a public figure plea in Bennett Ors v Guardian Newspapers (1995), said that US culture was different from other countries, including the UK, and that “what was appropriate in the US was not necessarily appropriate elsewhere”.

Lord Inglewood, in the second reading of the Defamation Bill in March, said the Government's view was that “there is no place for such a defence in the UK's defamation law…the media are adequately protected by the defences of justification and fair comment”.

“It is salutary that those defences are available only if the facts are substantially correct. What matters is the subject matter of the publication and how it is treated rather than who happens to be the subject of the allegations,” he added.

In Sullivan the US Supreme Court created a special category of plaintiff for public officials in defamation actions.

The common law rule of strict liability was replaced by a narrowly defined fault criteria in which a public official could not recover damages for a defamatory falsehood relating to his official conduct unless he proved that the statement was made with malice.

In Curtis Publishing Co v Butts (1967) a US court ruled that “differentiation between public figures and public officials and adoption of separate status of proof for each have no basis in law”.

In Gertz v Welch (1974), the US Supreme Court agreed and defined public figures as “government officers and those who, by reason of the notoriety of their achievements or the vigour and success with which they sought the public's attention, were properly classed as public figures”. But it restricted the definition of public figures to those who voluntarily placed themselves in that position.

The House of Lords sounded a note of caution in Derbyshire County Council v Times Newspapers (1993), in which it decided that a local authority could not sue for libel.

But the position of the individual councillor was expressly distinguished. Lord Keith held: “If the individual reputation of any [member of the authority] is wrongly impaired by the publication [he] can himself bring proceedings for defamation.”

This reservation is surprising in a judgment which held: “It is of the highest importance that a democratically elected governmental body should be open to uninhibited public criticism.

“What has been described as 'the chilling effect' induced by the threat of civil actions for libel is important. Often, the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving these facts is not available. This may prevent the publication of matters which it is desirable to make public.”

Sir Michael Davies, in an application to strike out a public figure privilege plea in Greer v Guardian Newspapers in April 1995, was troubled by the chilling effect principle. He said: “It seems almost to say that it is all right to publish defamatory matter which you cannot show to be true if it is desirable to make it public, without fear of any legal action against you. I ask the rhetorical question: known to whom to be true?”

In Greer Davies relied on the distinction drawn in Derbyshire between the council and individual members and dismissed the defendant's arguments as being too far in advance of their time.

In Cash v Mirror Group Newspapers, Judge Drake said that the defendant had made a strong argument for law reform, but added “that is not the law today”. He said: “At the heart of my reason for rejecting [its] submissions is the decision in Derbyshire [which] made a clear distinction between the position of elected bodies, such as a county council, and individual private citizens.”

He was not satisfied that the Indian, Australian or US authorities to which he was referred should affect his conclusion as to the position of English law.

In Bennett, Davies reached the same conclusion. He said: “The persuasive overseas authorities do not convince me that, on their account, the Sullivan doctrine should be adopted by our courts.”

But public figure privilege was not the only defence advanced in Bennett: the defendant argued that the article should attract qualified privilege because it concerned statements made in pursuance of legal, social or moral duty to persons who had a corresponding duty or interest to receive them (the Blackshaw v Lord test, where the subject matter is of public interest).

The difference between the two privilege defences advanced in Bennett is that public figure privilege relies on the status of the plaintiff and common law privilege relies on the status of the information. Davies was not satisfied at the interlocutory stage that the common law privilege defence was unarguable.

The judiciary is reluctant to leave a defamed plaintiff without remedy: thus the distinction in Derbyshire between the public authority and the individual member. The council was not left without a remedy because it could still maintain an action in malicious falsehood.

The English view is cautious, but not unreasonably so, because the question has to be whether public interest is better served by press self-censorship (induced by strict libel laws) or the wider dissemination of misinformation. If an editor can publish what he “knows” to be true but cannot prove, standards will fall.