Essay question

‘Reputation is an integral and important part of the dignity of the individual. Protection of reputation is conducive to the public good.’
Lord Nicholls

Discuss with reference to the impact of the Human Rights Act 1998 on the law of defamation.

An essay question is your opportunity to go into some depth on the policy and implications of the law and to reflect the wider reading you have done on the subject. It is important, however, that you direct your answer to the point of the question, rather than just discussing the legal area in general terms. The best answers will adopt a position which can be supported by legal authority.

A good answer to this question would begin with a brief overview of the tort of defamation: it protects the interest in reputation and is comprised of a defamatory statement, referring to the claimant which is published to a third party. The fact that libel is actionable without proof of damage may support the view that this protection is given a high value; but note that serious damage or the likelihood thereof is now required under the Defamation Act 2013 s 1. (Lachaux v Independent Print)

The main focus of the answer should be on defences to defamation because this is the area in which the HRA has been instrumental in case development: primarily the variation of qualified privilege known as the ‘Reynolds defence’ (see now, Publication on a Matter of Public Interest, defamation Act 2013 s 4). Applying this involves the balancing of the article 8 ECHR interest in private and family life with the article 10 interest in freedom of expression. You may have a view on the respective values of the two competing interests. Mention must be made of HRA s 12(4) which specifies that in the awarding of remedies particular regard must be given to freedom of expression. The Reynolds v Times Newspapers criteria of ‘responsible journalism’ should be listed, with examples of their application in cases such as Galloway v Telegraph, Loutchansky v Times and Jameel v Wall Street Journal (where the Supreme Court indicated that courts should not apply the defence too narrowly). The most recent key case is Flood v Times Newspapers where the defence was not permitted in a case reporting alleged police corruption. You should be able to distinguish the reasoning in these cases.

Another defence, that of ‘honest comment’, was the subject of British Chiropractic Association v Singh and Spiller v Joseph and its application in Singh was extended to protect debate on scientific matters of public concern. This is now incorporated into the Defamation Act s 3: the defence of Honest Opinion.

Other aspects of the tort of defamation which raise issues of human rights would be access to justice (art. 6) because legal aid is not available in defamation, and so ways of avoiding litigation such as the offer of amends under ss 2-4 of the Defamation Act 1996 will be relevant, as are other procedural devises to curtail litigation. You may wish to consider whether the jury’s ability to award (sometimes generous) damages indirectly impacts on freedom of expression. You should discuss the reform of the law of defamation in the Defamation Act 2013, particularly ss 1-4.