‘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.

1. Reframing Libel:
taking (all) rights seriously and where it leads
Andrew Scott and Alastair Mullis

2. Overview
 Principles underpinning the libel regime
 Application to regime design
 Proposals for a coherent libel regime

3. Principles
 Centrality of freedom of speech
 Respect for privacy and reputation
 Access to justice

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. 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. 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. Principles
 Centrality of freedom of speech
 Respect for privacy and reputation
 Access to justice

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. Principles
 Respect for privacy and reputation
 Centrality of freedom of speech
 Access to justice

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. Application: purposes of libel
 Compensate for hurt feelings
 Compensate for unquantifiable presumed harm
 Compensate for special (provable) harm
 Vindicate / restore reputation

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. 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. 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. 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. Application: purposes of libel
 Compensate for hurt feelings
 Compensate for unquantifiable presumed harm
 Compensation for special (provable) harm
 Vindicate / restore reputation

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. 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. Vindication: ramifications (II)
 Standing:
− corporations able to seek discursive remedy
 Defences:
− emphasis on justification and fair comment
− Reynolds privilege positively inappropriate

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. Application: purposes of libel
 Compensate for hurt feelings
 Compensate for unquantifiable presumed harm
 Compensation for special (provable) harm
 Vindicate / restore reputation

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. 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. 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. 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. 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