The words of Lord Justice Brooke prefix the third court ruling in as many weeks to strike a blow in support of press freedom.
First, a High Court judge robustly threw out a bid by Cherie Blair’s friend, Martha Greene, to block publication by The Mail on Sunday of a two-page investigative piece on her business activities.
That decision was then upheld by the Court of Appeal, which initially did not give its reasons.
The second ruling, reported last week, was by Law Lords who held that a local paper should be free to name a mother accused of murdering one of her sons, even though this would lead to the identification of her other son.
Now the Court of Appeal has given reasons for its decision to back The Mail on Sunday over the Martha Greene story.
Taking these rulings together, it will be a brave or fool hardly lawyer who argues that a paper should be gagged on the basis that the Human Rights Acts’s privacy provisions outweigh its freedom of expression provisions.
Courts have long baulked at gagging the media on the basis of complaints that they are about to publish something defamatory. Instead they have on numerous occasions held that if the article is published then the complainant is entitled to sue. Those principles have been reiterated in the latest judgment.
The ruling of Lord Justice Brooke, whose judgment included the combined view of Lords Justices May and Dyson, who sat with him, spells out the current approach.
He said: “In this country we have a free press. Our press is free to get things right and it is free to get things wrong.
“It is free to write after the manner of Milton, and it is free to write in a manner that would make Milton turn in his grave.
“Blackstone wrote in 1769 that the liberty of the press is essential in a free state, and this liberty consists in laying no previous restraints on publication.
“Every freeman has an undoubted right to lay what sentiments he pleases before the public. To forbid this is to destroy the freedom of the press. It is this freedom which is under challenge in this appeal.”
Referring to Martha Greene’s lawyer, he said: “Mr Richard Spearman, QC, has argued before us that the enactment of the Human Rights Act 1998 has significantly weakened the inhibitions that judges should feel before imposing prior restraint on the press. This was a surprising proposition, but it deserves careful analysis.
“The survey of the case law shows that in an action for defamation a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at the trial. This is partly due to the importance the court attaches to freedom of speech. It is partly because a judge must not usurp the constitutional function of the jury unless he is satisfied that there is no case to go to a jury.”
Until a full trial of a defamation claim, a court could not safely proceed on the basis that what was said by those accused of defamation was not true. “And if it is or might be true the court has no business to stop them saying it,” he said.
Spearman argued that section 12(3) of the Human Rights Act changed all this and claimed his client had a right to have her reputation protected by Article 8 of the European Convention on Human Rights.
Section 12(3) provides the right to freedom of expression, but says there should be no restraint of publication before a trial “unless the court is satisfied that the applicant is likely to establish that the publication should not be allowed”.
However, Lord Justice Brooke said the court had “no hesitation” in holding that there was nothing in the section that weakened the previous approach. If a claimant could stop the media from exercising their rights to freedom of expression merely by arguing on paper-based evidence that it was more likely than not that the defendant could not show that what it wished to say about the claimant was true, it would seriously weaken the effect of the provisions.
Commenting that “scoops” were the lifeblood of the newspaper industry and that stale news was no news at all, Lord Justice Brooke continued: “If Mr Spearman was correct, people with a fair reputation they do not deserve could stifle public criticism by obtaining injunctions simply because, on necessarily incomplete information, a court thought it more likely than not that they would defeat a defence of justification at the trial.”
Quoting a previous Master of the Rolls, Sir John Donaldson, he said that once a claimant’s right to a fair reputation was put in issue it was the function of the trial, and the duty of the jury, to decide whether the claimant had a right to be vindicated.
He referred to the recent House of Lords ruling that the mother accused of murder could be named and said : “Lord Steyn said, in effect, that the Article 8 rights of the younger child paled into insignificance when compared with the importance to be attached to the freedom of the press to report a criminal trial.
“Similarly, the relevant Article 8 rights of the claimant in the present case cannot be accorded great weight (before the trial of this action takes place) when compared with the importance to be attached to the freedom of the press to report matters of public interest.”
By Roger Pearson