The value of free expression in the UK: defamation reform and conditional fee arrangements

“We must be free or die, who speak the tongue
That Shakespeare spoke: the faith and morals hold
Which Milton held. – In everything we are sprung
Of Earth`s first blood, have titles manifold.”
William Wordsworth

English liberty has been tied up with freedom of speech for centuries. John Milton defended its value in 1644 in Areopagitica, as did John Stuart Mill in his famous On Liberty in 1859.  English law has proudly protected free speech, arguably since the signing of Magna Carta in 1215 and continued to lead the way through decisions such as Entick v Carrington [1765] EWHC KB J98. The value of free speech, now more broadly encapsulated in Article 10 of the European Convention on Human Rights as ‘freedom of expression’ is arguably the most established and unchanging of the United Kingdom’s political values.

 Of course, there are two sides to every coin. All of these bold statements of value recognise that free expression is not a simple concept. The Court in Entick commented that they were ‘no advocates for libels, [and] all Governments must set their faces against them’ and On Liberty is just as famous for its discussion of the limiting Harm Principle as its defence of free speech. At the present time the United Kingdom appears to face a crossroads of principle: recent and proposed developments in the law surrounding defamation actions, Conditional Fee Arrangements and Legal Aid suggest that free speech is once more being re-examined.

 First, consider the proposed Defamation Bill [HL] 2010-11, now at the Committee stage in the House of Lords. The most salient changes the Bill makes is the introduction of a new defence on the grounds of ‘general public interest’, the requirement that the claimant’s reputation must have suffered or be likely to suffer ‘substantial harm’ and the reversal of the presumption of trial by jury in defamation cases.

 The ‘general public interest’ defence may seem innocuous to those familiar with European Human Rights Law. In reality however, the Bill goes further than the Judgements of European Court of Human Rights have so far, making no distinction between whether the information purports to be fact or opinion. The only stipulation is that the defendant acted responsibly. If the Courts follow ECtHR jurisprudence on what should be considered as in the ‘public interest’ then we can expect to see this new defence primarily employed in defamation and libel actions against political figures. It is difficult to see, without adopting a very broad definition of the public interest, how this defence will limit the ability of popularly derided celebrities to bring cases. Indeed, the courts should be very wary of extending the definition further than that adopted by the ECtHR, as to do so would cloud our understanding of what is valuable about political speech and accountability.

 The question of ‘substantial harm’ may raise an important question: whether the value of reputation is instrumental or intrinsic. If reputation is of intrinsic value, then the mere fact of its damage should be enough to form the basis of an action in defamation. If it is of instrumental value however, then it can only form the basis of an action if some other harm is incurred by damage to it. That harm could be economic, such as loss of a job or employability or social, such as the exclusion from particular walks of life. It remains to be seen exactly how courts will interpret this provision and whether intrinsic or instrumental criteria for measuring ‘seriousness’ will be preferred. In principle it seems preferable that the intrinsic value of reputation should be preserved, both morally and conceptually. We must wait and see.

 The question of trial by judge taking precedence over trial by jury has raised some eyebrows. There seems no principled reason why one method should be preferred over the other of course and the debate largely turns on whether one considers collective unexamined reasoning to be preferable to the detailed judgement of a smaller number of professionals.

 If we consider the proposed reforms in the light of the recent decision in MGN Limited v. United Kingdom [2011] (Application Number 39401/04) the debate over the value of free speech in the context of defamation develops yet another dimension. The ECtHR considered Conditional Fee Arrangements, which enable a lawyer offer claimants ‘no win no fee’ packages, on the understanding that if the case is won double fees are due, almost invariably from the defendant. They ruled that such arrangements constitute an unjustified burden on defendants, acting as a disincentive to publication and a limitation of free expression. Given recent dramatic cut-backs to civil legal aid, this might be considered a bridge too far. Whether actions for defamation will become inaccessible to those without means is a serious question and raises the possibility of future discussions of free expression being tied together with questions of equality.

 When coupled with the measures proposed in the Defamation Bill, this development indicates that free expression in English Law is being dragged once more to the forefront of contentious political principles. Whether recent developments indicate a move towards a more absolutist American-style conception of free expression or whether the common law will prove resistant to change remains to be seen. We can be sure of one thing however: just because a value is well established doesn’t mean that it is a settled matter. Free expression in English Law is a value in constant flux and lawyers and laymen alike would do well to give both the value and these new changes, serious thought.

By Alexander Green

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