Freedom of our politicians to defame others in the House of Commons
should be maintained but journalists need protection too, argues
Charlotte Davies...
Being libelled is an occupational hazard for any politician. Politicians have been - and always will be - subject to the harshest of criticism. After all it comes with the job and they themselves can often give as good as they get.
It’s when this criticism becomes defamatory that politicians seek redress through the courts.
But what level of protection from being sued in defamation should one have when, for example, writing a newspaper article about the extra-marital exploits of a Government minister or when ‘blogging’ about the financial impropriety of a local councillor?
The Bill of Rights 1688 states that ‘freedom of speech and debate…in Parliament ought not to be impeached or questioned in any court’.
In the House, politicians have often availed themselves of the protection of absolute privilege to say whatever they like about anyone. Stephen Byers famously made serious accusations about Martin Sixsmith, his Department’s former Head of Communications, while Kate Hoey launched a concerted campaign against former England football manager Terry Venables, claiming that he broke Football Association rules and was unfit to be a Company Director.
Even those higher up the political food chain appear to enjoy trying on the suit of armour. Tony Blair once accused John Simpson of reporting for the BBC ‘under the instruction and guidance of Serbian authorities’ during the NATO bombing of Kosovo.
Had any of these statements been repeated outside those four walls, they could well have resulted in libel actions. Even John Simpson said he would have sued… and won.
The arena of the House must therefore be protected, not because anything said in Parliament should never be questioned in court but because the sheer volume of law suits would cause our judiciary to come to a grinding halt.
Outside the green-leathered boxing ring, there exists no absolute privilege (it exists in other areas but not when it comes to defaming politicians). Instead, any existing or aspirant Member of Parliament can be successfully sued for defamation if malice can be shown to be present. This is known as qualified privilege.
With a General Election looming ever closer, what you can or cannot say about your electoral opponents will become more of a pertinent issue in the months ahead. Many candidates see the run-up to an election as an opportunity for a free-for-all slander session, on the premise that members of the public have a right to know what the other candidates really get up to. In fact, just because there is an imminent election doesn’t mean that you can say what you like about your opponent.
Section 10 of the Defamation Act 1952 states that no prima facie case of qualified privilege exists just because the statement ‘is material to a question in issue in the election’. Mr Justice Eady in Culnane [2005] ruled that Section 10 does not preclude a candidate from relying on qualified privilege to defend an election statement, provided that the privilege is not based solely on the fact that the statement was made in the course of an election. Thus, some other defence under qualified privilege must exist.
This is an interesting piece of legislation in that it appears to serve little purpose other than to make doubly sure everyone knows an election campaign isn’t an excuse to slag off your opponents.
Our politicians have much greater recourse in the courts than they do in the US. In order to prove libel under US jurisdiction, the claimant (if he is a public figure, such as a politician) must show malice (New York Times v. Sullivan [1964]). Malice, as Lord Steyn said in Reynolds, ‘is notoriously difficult to prove’. There is therefore a risk that elections are being won and lost on the basis of false allegations.
The attractiveness of our legal system has caused a phenomenon known as ‘libel tourism’, where claimants file their libel suits in jurisdictions thought more likely to give a favourable result, often the UK. This appears to have been particularly useful to individuals accused of being involved in terrorism.
New York has sought to protect itself and earlier this year introduced the Libel Terrorism Prevention Act, which protects writers from foreign judgments in countries that do not meet the free speech standards of the United States.
Perhaps what this demonstrates is just how much the balance falls in the favour of public figures in this country.
Many have been tempted to take advantage of this. Among the most notable are Jonathan Aitken, whose attempt to ‘cut out the cancer of bent and twisted journalism’ prematurely ended his political career, and Neil Hamilton (who even had the law changed to enable him to bring his claim) whose fall from grace was matched only by that of Jeffrey Archer.
The Reynolds defence has gone some way in redressing this balance. In the case of Reynolds v. Times Newspapers [2001], the Law Lords ruled that the media could publish information, even if it turned out to be untrue and defamatory, provided that the public had the right to know it and it was the product of responsible journalism.
The seriousness of the allegation, the source, the steps taken to verify it, the urgency of the matter, whether the claimant was asked to comment and give their side of the story, and the tone of the article were all points that would be taken into consideration by the court.
However, when The Daily Telegraph sought to rely on the defence in its case against George Galloway, Mr Justice Eady said that The Daily Telegraph ‘did not merely adopt the allegations. They embraced them with relish and fervour. They then went on to embellish them.’ Thus, the defence failed.
The courts have said that this case has since been over interpreted; it should not be taken as a reluctance of the courts to allow the defence, the defence was bound to fail on the facts. Galloway or not, the Reynolds defence is alive and kicking, and what it demonstrates is a shift towards a more US-style protection of the right to free speech. The effect of this in potentially precluding colourful characters from standing for office for fear of incontestable defamation remains to be seen.
What do we seek to achieve in defamation law in the political context? We aim to balance freedom of speech with the freedom not to be libelled. In the House this balance appears to have fallen firmly on the side of freedom of speech, but the scales also seem to be gradually tipping this way outside the House, and rightly so.
However, with Martyn Jones, Nigel Farage and Alan Duncan (to name a few) having all recently won libel claims against various publications, defamation law is still clearly a ‘trusty shield’ for wronged politicians.
Charlotte Davies recently left renowned libel law firm
Carter-Ruck to join Ely Place Chambers as a pupil barrister.