The practical exercise of free speech depends on certainty. Around the world, authoritarian regimes deliberately take an erratic approach to their communication and press laws, ensuring that the independent media remain confused about what is and is not permitted.
When journalists and publishers are unsure about where the boundaries of expression actually lie, they “err on the side of caution” and self-censor. Autocrats don’t need to prosecute everyone, and can even afford to grant magnanimous pardons, once they have made their point. The recent release of Wa Lone and Kyaw Soe Oo in Myanmar is a good example of this.
By contrast, free societies apply a consistent approach. Well formed speech laws not only allow plenty of space for freedom of expression, but are clear enough that journalists – and indeed, all citizens – know where they stand, before they publish.
But even in a democracy, laws can be fuzzy. Free speech controversies in the UK are often related to the hazy definitions in the criminal law (the offences of “stirring up hatred” or making a “grossly offensive” communication, for example).
Either that, or the messy terms of service offered by social media platforms, which even the companies themselves admit are not fit for purpose.
The elimination of uncertainty was one of the central aims of the Libel Reform Campaign. Almost all publishers we spoke to when we launched the campaign in 2009 admitted to some form of self-censorship due to libel fears, including many cases where they were sure of their facts but were unsure whether they could defend themselves in the High Court.
More than one legal academic has told me that the Defamation Act 2013 did little more than codify the pre-existing common law. Yet many editors and media lawyers I have spoken to say that the change in favour of free speech is noticeable. This has as much to do with the clarity that the statute provides, as with the new free speech protections that were introduced.
The “serious harm” test at section one of the Defamation Act 2013 was one of its most significant reforms. “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
When this measure was debated and agreed to by Parliament, free speech campaigners hailed this as a significant win for free speech, one that would weed out trivial claims and discourage “reputation managers” from issuing spurious legal threats.
However, the case of Lachaux vs Independent Print and another threatened to undermine the protection offered by section one. The Court of Appeal held that the phrase “has caused or is likely to cause” meant that a judge could assume serious harm, based only on the tendency of the words to mean something defamatory. Since that judgment in September 2017, the operation of section one has been in a state of uncertainty.
This week, the UK Supreme Court unanimously overturned that decision. The judges held that section one means that the claimant must show “serious harm” with reference to real world facts, rather than hypotheticals. A degree of certainty has been restored, and the “serious harm” protection looks even more secure. Both claimants and defendant know that disputes on this aspect of the law will involve the weighing of provable facts, rather than a single judge’s subjective opinion.
This is an excellent development for freedom of expression, but it also has the potential to encourage responsible and responsive journalism.
In the debate over press regulation in the UK, the issue of corrections is a source of ongoing dismay. The power to force equal-prominence corrections on newspapers is always high on the wish-list of media reform groups.
Now we have a settled interpretation of section one of the Defamation Act, these campaigners may find that law is an ally to their cause. If, after Lachaux, the courts consider the matters of fact (such as the actions of the newspaper after the initial complaint, or the number of unique visitors garnered by a online story), then a prompt and prominent correction becomes the most reliable and demonstrable way to minimise serious harm to reputation, and to neutralise the possibility of a libel complaint before it even gets off the ground.
A real world example of the incentives on offer came to the High Court in July 2014, when a case was brought against the Sunday Mirror by Ruth Cooke and her employer Midland Heart, a not-for-profit property company. The paper had included details of the claimant’s salary as chief executive of the company, in an article that was actually about the unethical behaviour of an entirely different landlord. The wording of the article could have implied that Cooke was implicated in that behaviour.
When the newspaper was alerted to this, it amended the story on its website and published an unequivocal apology in its very next edition. This happened so quickly that by the time the case came before the court, the claimant could not show that any serious harm to reputation had been caused. As the judge, Mr Justice Bean, observed: “It is important to note that the apology is now far more accessible on internet searches than the original article.”
After a period of uncertainty, the Lachaux judgment returns the section one standard to that applied in Cooke. The publisher’s response to a complaint can really make a difference to the “serious harm” assessment.
A perennial complaint of media critics is that newspapers publish defamatory articles in order to generate sales (and online page impressions) and then immediately correct them. Won’t the section one mechanism just incentivise more of this kind of behaviour?
Not at all. If any media outlet did indulge in such cynical behaviour, the strategy would only work if the article was available long enough to actually generate those sales and clicks. But keeping an article live for that purpose would be exactly the thing that tipped it into “serious harm” territory.
So there is a quick elegance to section one, that cannot be matched by the admirable but slow mediation processes offered by regulators IPSO and Impress. It delivers fast vindication of reputation for claimants who have been unfairly defamed and it offers a cheap exit ramp for media outlets when they know they have made a mistake.
But it also protects those same outlets from trivial claims and gives them a choice to fight a case on the facts if they wish. All of this is good for responsible journalism and for freedom of expression.
Robert Sharp is policy advisor and former head of campaigns at English PEN, a writers’ charity that promotes literature and free speech.
Picture: UK Supreme Court