A company can sue for libel under English law.
Usually this will mean a commercially-active company, with shareholders and dividends. These are known as private or publicly limited companies. The word Limited - so familiar that it is hardly noticed - has to be added to the company name so as to signal to investors and customers that the company members - the shareholders - only have limited liability in the case of business failure.
The limited company exists separate from its (company of) shareholders. It can enter into contracts and own property; it will legally exist, even if every shareholder died the next day; and it can sue and be sued, and also be prosecuted as a defendant under criminal law.
All this because a company in law is a corporation, and so has legal personality; and in law, as with dogs, personality can go a long way.
But there are other corporations which cannot sue for libel.
A local authority is a corporation. Like a limited company, it can contract and own property; it exists separate to the councillors and the officers; it can (generally) sue and be sued, and sometimes even prosecuted.
However, a local corporation cannot sue for libel, and nor can most other statutory corporations discharging public functions.
This is because of an important House of Lords decision reported in 1993.
Derbyshire County Council had sued the Times Newspaper for libel. As a corporation under English law, it was presumed that it could sue for libel. It had personality, and it had a reputation.
However, the House of Lords held - as a matter of principle - a local authority could not sue for defamation.
For a public body to do so would be an unwarranted and undesirable limitation upon freedom of speech.
This was not even a "defence" - the right to sue did not exist in the first place.
However damaging the allegation - and it was not doubted that a local authority had a reputation which could be defamed (ie, de-famed, or damaged) - the public interest meant that such actions could not be brought. And this ruling has been taken to mean by lawyers that no public authority - not just local authorities - can sue for libel.
And if a libel case cannot be brought, they cannot be threatened; and so there is not even a chilling effect.
Accordingly, I can type the following about a particular statutory corporation without any fear whatsoever:-
The General Chiropractic Council happily promotes (and regulates) bogus treatments for which there is not a jot of evidence.
I am safe because the GCC are a statutory corporation discharging a public function, and so I have the protection of the Derbyshire rule.
All this of course brings me to the British Chiropractic Association.
The BCA are suing Simon Singh for libel for saying about the BCA what I have just said about the GCC, but the BCA can sue because they are a company.
However, perhaps crucially, they are not a limited company. They do not have shareholders; they do not pay dividends; they do not make a commercial profit. They do not need to put the word "Limited" at the end of their name. It legally exists for a non-commercial purpose.
The BCA are a Company Limited By Guarantee. Their company details are here.
(It is interesting to read the examples in Wikipedia of other companies limited by guarantee.)
Such legal entities exist so that charities and non-profit entities can still have legal personality: so they can contract and hold property.
But should such entities really be able to sue for defamation? Or to have the benefit of a chilling effect which comes from being able to sue?
On one hand, they are indeed corporations with a reputation.
On the other hand, they are corporations legally structured so to give effect to non-commercial activities, usually promoting a public or charitable good. They are classed as "companies" really just as a matter of legal convenience.
Some may think that this makes companies limited by guarantee more akin to the public authorities barred from suing under the Derbyshire rule, rather than to commercial companies with shareholders and dividends.
There is (as far as I know) no legal authority directly on this point.
Simon Singh had asked the High Court to rule on this in the preliminary hearing, but there was an adjournment immediately after the unfavourable ruling on meaning.
The issue is therefore still entirely open, and so even if Simon Singh loses the Court of Appeal application on the meaning point, he can still ask for a High Court ruling on this "corporate point" - and in turn appeal any adverse ruling to the Court of Appeal.
The BCA do not really have a trading reputation to protect; they have legal personality just so to promote (happily or otherwise) chiropractic and their member chiropractors, both of which are health matters for legitimate public debate and scrutiny.
But if the House of Lords is correct in Derbyshire, why can I not then criticise the BCA when I can happily criticise the GCC for exactly the same failings?
Is this a bogus distinction?
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