Page 321 - Law and the Media

Law and the Media
Justification: the requirement that the defendant prove the truth of a defamatory
allegation has been held to be compatible with Article 10(2), meeting ‘the legitimate
purpose’ recognized by Article 10(2) of protecting people from the publication of
damaging and unjustified falsehoods (Berezovsky v Forbes (2001)).
Reference: the test as to whether the words complained of in fact refer to the
claimant is objective and, at common law, the liability for ‘unintentional
defamation’ is strict. However, it has been held that the application of this principle
to ‘lookalike’ photographs is incompatible with Article 10 (O’Shea v MGN
(2001)).
Fair comment: the common law of fair comment appears to be consistent with
Article 10 (see Branson v Bower (2001)). It appears that ‘freedom of speech’
considerations limit the basis on which the defence can be rebutted by a plea of
‘malice’ (Cheng v Paul (2001)).
Qualified privilege: it has been said that the principles of qualified privilege in
English law are compatible with Article 10 (Loutchansky v Times Newspapers
(2001)). However, in Saad Al-Fagih v HH Saudi Research & Marketing (2001) the
Court of Appeal found that the media were entitled to qualified privilege in a case
where they had neutrally reported defamatory remarks made by one politician
about another without checking them. This approach is consistent with recent
European case law (Thoma v Luxembourg (2001)), and represents a very
considerable liberalizing of the position from the point of view of the press.
Qualified privilege has also been found to exist in a case of a story that was written
in accordance with the standards of ethical journalism of the country of primary
publication (Lukowiak v Unidad Editorial SA (2001)). The precise limits of
qualified privilege remain controversial, and this is the subject of a number of
pending appeals.

Remedies: it has been held that the combination of Articles 6 and 10 does not give
a claimant a right to seek a ‘declaration of falsity’ (Loutchansky v Times
Newspapers (2001)).

A number of areas remain to be considered, including the common law rule that a defendant
cannot, in mitigation of damage, lead evidence of specific acts of misconduct (the rule in
Scott v Sampson (1882)) or of other defamatory publications to the same effect. The result
of this rule is that a defendant cannot, in practice, lead evidence as to the claimant’s actual
reputation or the reputation he deserves. It is arguable that this rule is incompatible with
Article 10.

19.5.5 Reporting of proceedings

The HRA is likely to encourage a greater openness in the approach taken by the courts in
relation to the reporting of proceedings. The Convention was a decisive influence on the
radical change in practice in relation to hearings in private under the Civil Procedure Rules,
which govern civil litigation.
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