A roundtable hosted by English PEN and Index on Censorship
Thursday 11th March
Free Word Centre, 60 Farringdon Road, London EC1R 3GA
Notorious cases of ‘libel tourism’ have led to growing calls for the reform of English libel law, not least from the United States, where new laws have been passed to defend American citizens from English libel actions.
Reformers in the UK are now asking why free speech is worth less here than in the US. Have recent decisions at the European Court of Human Rights about the complex balancing act between Article 10 and numerous other rights and considerations actually weakened free speech in the UK? Does the United States First Amendment offer a potential route forwards to those who wish to strengthen free speech in the UK through a Bill of Rights? What are the dangers of taking this route?
In honour of the visit of Aryeh Neier, President of the Open Society Institute, English PEN and Index on Censorship invited a distinguished group of free speech advocates, lawyers, academics and writers to debate the future of libel reform, and ask: ‘Is it Time for a British First Amendment?’
The discussion covered a lot of ground, and points raised included the following:
The Sullivan case in the United States ushered in an era of investigative journalism which fostered public debate about the Vietnam War and led to the Watergate revelations.
Whilst serving an important social function, libel law is always potentially open to abuse, and it is incumbent on the state to ensure that it is not used at the expense of the public interest in free speech.
There have been several media-friendly changes in English law over recent years, which include the Reynolds defence; the Offer of Amends system; capped damages at £220,000; the exemption for public bodies; and the recent ruling exempting Google from strict liability.
Nonetheless, there is a chilling effect that strikes every publisher, editor, scientist, blogger, author and NGO when they receive a libel claim for a publication that they believe to be true and in the public interest, yet which they are currently unable to defend because of both the costs and the uncertainty of the Reynolds defence.
Whilst the American approach allows a certain class of defendant – the media – to write freely about a certain class of claimant – ‘public figures’ – it does not define the public interest more generally. Meanwhile, the American use of exemplary damages may serve to deter some publications, but it does not work for all claimants.
A number of speakers stressed that the balance struck by English law between reputation and freedom of expression was broadly in line with that of major commonwealth countries, such as Canada, South Africa and Australia, as well as a number of western European states such as Germany. In this, as in numerous other areas, such as hate speech bans, the US affords freedom of expression a uniquely privileged position.
Strasbourg has generally liberalised free speech over the last thirty years, but some recent rulings have revealed the Court’s confusion over whether reputation is a right (protected under Article 8) or merely an interest (under Article 10.2). The Radio France case and many others found that it was the former, but this was strongly doubted in Karako v Hungary and of 13 defamation cases where the public interest was at stake in the last few years, 12 were won by media applicants, and Article 8 was not mentioned in any of them. So the pendulum may be shifting back in favour of free speech, at a time when the English courts seem to be moving in the opposite direction (see the Guardian case in the Supreme Court).
It was shown that American and European law are not complete strangers: the First Amendment has been cited many times at the European Court, and has helped to clarify the importance of free speech in cases such as Derbyshire, where public bodies have been held to be immune from libel. Article 10 is not a satisfactory free speech provision – it is so riddled with exceptions – and a more robust constitutional provision along the lines of Article 19 of the International Covenant on Civil and Political Rights may be preferable.
On the other hand, Article 17 of the ICCPR, the right to privacy, includes a right to ‘protection of the law’ from ‘unlawful attacks’ on ‘reputation’ which is not included as a ‘right’ in the ECHR.
Both the ECHR and the ICCPR include protection/respect of the ‘reputation’ or ‘rights of others’ as a potentially legitimate restriction on free speech (Article 10 (2) and Article 19 (3) (a) respectively) but only the ICCPR contains protection of ‘reputation’ as a ‘right.’
Lisa Appignanesi, President, English PEN
Heather Blake, UK Director, Reporters Sans Frontieres
Tracey Brown, Managing Director, Sense About Science
Stewart Chisholm, Media Programme, Open Society Institute
Darius Cuplinskas, Information Programme, Open Society Institute
Francesca Fanucci, Freedom of Expression Consultant, Open Society Justice Initiative
Vera Franz, Information Programme, Open Society Institute
Jo Glanville, Editor, Index on Censorship
Mike Harris, Public Affairs Manager, Libel Reform Campaign
Jonathan Heawood, Director, English PEN
Gwyneth Henderson, Chair, Media Legal Defence Initiative
John Kampfner, CEO, Index on Censorship
Andrew Kenyon, Professor of Law, University of Melbourne
Francesca Klug, LSE
Anthony Lester QC, Blackstone Chambers
Morris Lipson, Independent consultant
Martin Moore, Director, Media Standards Trust
Alistair Mullis, Professor of Law, University of East Anglia
Fiona Napier, International Advocacy Programme, Open Society Institute
Aryeh Neier, President, Open Society Institute
Peter Noorlander, Legal Director, Media Legal Defence Initiative
Gavin Philipson, Professor of Law, Durham University
Geoffrey Robertson QC, Doughty Street Chambers
Andrew Scott, Lecturer in Law, LSE
Robert Sharp, Campaigns Manager, English PEN
Andrew Stephenson, Partner, Carter-Ruck
Originally posted with the url: www.englishpen.org/aboutenglishpen/campaigns/reformingthelibellaws/british-1st-amendment/