Chapter 14 Outline answers to essay questions

Defamation

‘The threat of the “chilling effect” of the English law of defamation is an illusion.’

Discuss.

This question requires consideration of the law of defamation in terms of both legal principle and procedural issues. The argument to be debated is whether or not the law of defamation impacts adversely on the freedom of speech of the public and the press.

Regarding legal principle, significantly in English law there is a presumption of falsity, subject to the defence of justification. The key areas are defences to defamation and the impact on their interpretation of the Human Rights Act 1998. You might begin by noting that governmental bodies and political parties cannot bring defamation actions (Derbyshire CC v Times Newspapers) owing to the importance of free expression to the democratic process.

The defence of honest comment was liberally applied in British Chiropractic Assn v Singh. The most relevant defence is that formerly known as qualified privilege as applied to the media in Reynolds v Times. This was interpreted liberally in Jameel v Wall St Journal and is now enacted as Publication on a Matter of Public Interest in the Defamation Act 2013 s. 4. The provisions of the Defamation Act 2013, particularly s 1 (the serious harm requirement) are significant.

Good answers would include comparisons with the American First Amendment and Sullivan v NY Times, the law in New Zealand, and the ECtHR decision in Lingens v Austria.

In procedural terms the most fundamental issues are the simplification of the trial process under the Defamation Act 1996, control of damages awards by juries (John v MGN) followed by the abolition of the right to jury trial (Defamation Act 2013 s 11), and whether funding possibilities under conditional fee arrangements make the law more accessible to the ordinary person. Be sure to end with a strong conclusion.