In English libel proceedings, the "reverse burden of proof" is so counter-intuitive and so seemingly outrageous, it is difficult to comprehend just why it exists at all.
The effect of this reverse burden is to put the defendant in a weak position from the very beginning of the case, in terms of both what legally needs to be proved and the (often terrfying) costs in doing so.
It also means that the claimant (a far better word than the archaic plaintiff, by the way) can actually win a case even though the defamatory statement is true simply because the defendant is not evidentially or financially able to prove its truth.
Nonetheless, it is worth trying to understand why the tort of libel is structured in this way, and I will try an explain it by analogy with other English torts.
Imagine a Farmer, and imagine that I am in his field.
He comes and says "get orf my land". He threatens to sue me as a trespasser. The Farmer can prove he owns the field and he can also prove that I am standing in his field. He doesn't have to prove damage, for - like libel - trespass is actionable without proof of damage.
"Aha," I say, "I have a legally-valid contractual licence (like a ticket for a rave); I have a legal right to be on this land; and so I have a complete defence to your action for trespass."
"No you haven't," replies the Farmer.
In court, it would then be for me to prove that I have a licence, and not for the Farmer to disprove it.
(It would be the same with the owner of a copyright suing someone claiming to have lawfully downloaded a copyrighted work, though there damage would have to be shown.)
I do not think this is necessarily unreasonable: I claim to have a licence and so it is for me to show that is the case.
But this is, like in libel, a reverse burden: I am having to prove my defence.
So what has gone wrong in libel?
Imagine now a Reputable Person.
I defame that person - almost literally I de-fame her. By analogy, I am trespassing on her reputation.
In theory, the Reputable Person has to prove that she has a reputation in England & Wales and that I have defamed that reputation. In this way, the Reputable Person is in a position similar to the Farmer.
Once the Reputable Person has shown this, then the law says it is for me to prove that I am lawfully defaming that reputation, just like an alleged trespasser can try and show he has a legal right to be in the field.
Where, in my view, libel has partly broken down on this issue is that the courts just nod through what the Reputable Person needs to show to get the claim off the ground.
Any link with England & Wales seems to be enough; no scrutiny is put to whether someone actually has a relevant reputation; and any criticism (even calling Steven Berkoff ugly) is held to be defamatory.
And so the burden is instantly thrown on to the other side - to show that the statement was justified or fair comment or privileged. And with this burden goes all the terrifying costs risks.
In my view, libel should not be treated like trespass or copyright infringement; the claimant should have to certify the falsity of the defamatory factual statement before a claim can be brought, and that this certification should be open to cross-examination by the defendant.
But courts should be far more rigororus in putting the claimant to test on what already has to be proved to bring a libel case: that there is an applicable reputation in England & Wales in the first place, and that the statement defames that reputation.
If the courts did this then the reverse burden of proof (and the costs) would not be such a problem.
Thursday, 12 November 2009
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12 comments:
In the third paragraph, shouldn't that be: "... because the defendant is not evidentially or financially able to prove its truth." ?
Thanks once again for making these things so accessible - and interesting! I'm in agreement with your viewpoint here.
But I restate my earlier concern - just how does the claimant ;) go about proving an accusation false?
If I say you wore women's knickers for the best part of 2009 to date and you find it offensive (which indeed you may not) - how do you prove my claim false? Surely the only plausible action here is to require me to prove the claim true.
As much as I despise the obvious misuse of defamation law as a silencing tool, I still find it simplistic to insist the burden is necessarily reversed. But then, IANAL.
You're getting more solid work done on sabbatical than most people do while at their desks...
Thanks!
How come policy, particularly the social utility of a free press and the potential for crushing liability, appear to have so little sway?
But surely this only switches the burden of risk from one side to the other. If a journalist make scurrilous remarks about you suggesting that you are not the high-minded, honest lawyer that you, your friends and colleagues believe you are then, under your proposal, you will face bearing the costs of any action if a judge doesn't choose to share your high opinion of yourself. I think the idea of making the cases simpler and much less expensive, with or without switching the burden of proof, offers the fairest route to justice for all parties whether defamed or innocently exercising the right, and opportunity, to pass fair comment.
I think the idea of requiring the plaintiff to certify that the alleged defamatory material was false and having them cross-examined on it before the action goes forward would be excellent.
Do you have a mechanism like the following from the Ontario court system (somewhat dimly recalled from my time articling): if a party makes an offer to settle which is refused and the other party does not do better at trial, then the costs from the point of the spurned offer are against the one who spurned the offer and on a higher scale than usual.
Say I'm sued for libel and I make an offer to settle and the other party does not accept the offer. If the matter goes to trial and the plaintiff doesn't do better at trial than the offer I had made, then costs don't follow the usual route. Instead, the plaintiff would receive his costs up to the point where I'd made my offer and they'd be costs on a party - party basis (a tariff that usually amounts to about 60% of the actual costs). From the time of my spurned offer which the plaintiff didn't manage to improve on at trial, I would get my costs paid by the plaintiff on a solicitor - client basis (another tariff usually amounting to about 90% of actual costs).
It gives me an incentive to make a reasonable offer to settle, like nominal damages and retraction/apology with an offer of party-party costs to that point (since costs at trial are normally party-party) and the plaintiff has incentive to accept a reasonable offer or to make a reasonable counter-offer.
I'm guessing there is no similar mechanism in English courts, though it is not on its own enough to keep there from being a degree of libel chill in Ontario (and in Canada in general). It will be interesting when at some point our current libel laws butt up against our Charter of Rights and Freedoms which includes freedom of speech.
Excellent series of posts. Jack of Kent is one of my favourite blogs.
I think we're confounding two issues here and we need to separate what you call the "terrifying cost risks" from the jurisprudence.
Damages in libel cases are typically quite small. It's the court costs that are terrifying. The problem isn't jurisprudence, it's the terrifying fees charged by lawyers operating a closed shop.
The fees charged by plumbers are terrifying enough. But the fees charged by lawyers can easily be 20 times more.
Yes. I know. The argument is that people are paid what they are worth. But this deliberately ignores one fundamental fact.
The value of a plumber is judged objectively in the physical world. A plumber who fixes pipes is worth paying. One who is endorsed by the leading plumbing authorities might be worth paying marginally more. One who is endorsed by all the authorities and can't fix a pipe is only worth suing.
In contrast, the value of a lawyer's work is judged subjectively and largely by their peers. So a barrister employed by, say, Carter Ruck, wearing the right school tie and charging in the region off £1,000 per hour, may mumble a few words in Latin and the Judge will confer. Whilst a 'barrack room lawyer' coming from the streets who has not dined at the Inns of Court may put forward a brilliant argument and be dismissed as an arrogant upstart who needs putting in their place.
If the training of lawyers takes T times more than plumbers and requires I times more intelligence (however that is defined), then there is justification for lawyers charging T x I more than plumbers.
But the training of a lawyer is not more than 2 or 3 times longer than the apprenticeship of a plumber. And intelligence follows the same Gaussian distribution as height. Ergo, there are as many lawyers who are two times more intelligent as plumbers as there those who are twice as high.
So the proper ratio of fees charged by leading lawyers to leading plumbers is at the most 4 or 5 to 1.
If this terrifying imbalance were corrected, then your concern that "the claimant can actually win a case ... simply because the defendant is not evidentially or financially able to prove its truth" would be solved.
But of course, there is no more chance of that happening than bankers giving back their bonuses or politicians not fiddling expenses. So we must look to the jurisprudence instead.
Your equation of the burden of proof in libel and trespass is exactly what I was thinking myself, and I entirely concur.
Simon Singh has to prove he has a licence. The licence he, and the Keep The Libel Laws Out Of Science campaign, claims is the title of "Scientist" rather than "Journalist" or "Other Commentator". This passes muster with a small minority of "skeptical" scientists and with a large majority of those who didn't get much past GCSE General Science. But it does not necessarily pass muster with other scientists who have equal qualifications but are not given equal access to the Guardian's oxygen of publicity.
Which brings us down to your conclusion that "courts should be far more rigorous in putting the claimant to test ... that there is an applicable reputation."
I don't know where you've been, but I can tell you that in the 58 years I've spent on this earth I've come across scores of people who've told me that Chiropractic has solved problems their doctors couldn't reach. Therefore, in my anecdotal experience, which is not acceptable in court, paying a battery of lawyers £1,000 per hour for months on end to test the validity of Chiropractic's reputation can only feed shed-loads of money into the already too-rich and do nothing but confuse the issue.
As a corporate lawyer I understand why you would not support my position on this. But I do, nevertheless, very much appreciate you giving me the opportunity to disagree.
It really is very difficult to get the balance right, because different circumstances lead to different conclusions on where the burden should lie.
Certain newspapers have said things like "Mr X is a paedophile" when in fact he (most likely) wasn't. The cost to Mr X of such a false accusation is large, if people believe it. Now one could argue that if Mr X is, then there is a massive public interest in knowing it, so it should be possible to have a public debate about it. After all, the situation is not unlike the proposition that "SnakeOilCo's compound doesn't heal". There is public interest in knowing the truth, but there is a cost to SnakeOilCo in having their compound wrongly questioned. But we argue that there should be a public debate around that.
But in fact there is a difference. Even the DPP can't label Mr X of being a paedophile without proving it - innocent till proved guilty - and that is in the public interest. So really no one else should be allowed to either. So perhaps we do have to live with a system where newspapers can't accuse fat newspaper bosses of being engaged in fraud without having suitable levels of proof.
But suggesting that a drug might be ineffective is in a different category, one of regulatory testing and probabilities. All drugs have to be tested to demonstrate both safety and effectiveness (a positive test). Whereas people working with children merely have to show they don't have a stains on their files (a negative test). The burden of proof where we address these issues is opposite.
Somewhere in between these lie the "Ms Socialite misbehaved herself" type of story which the tabloids like, and seem to have to have to pay up surprisingly large sums of money for from time to time.
Maybe I’m misunderstanding something here, but isn’t one of the primary objectives of libel law to seriously encourage people to think (and anticipate the potential consequences) before they pass adverse comment in the first place?
Doesn’t your suggestion (quite rightly) put some reactive onus on a guilty party to cough up to defend themselves, but (quite wrongly) also potentially place a terrible burden on the innocent? And if the law of the land is there to protect the innocent, doesn’t the latter scenario therefore effectively invalidate your proposal? Thank goodness we’d be deemed innocent until proven guilty in a criminal court! (At least I believe that to be the case.)
If I was to entertain publishing criticism of another, I’d first get my hard evidence in place, and / or then choose my words very carefully indeed. A tad dull for the media, of course, but might there be a lot less cases going to court, or wouldn’t legal proceedings be greatly curtailed, if everybody took these quite obvious steps in the first place?
@McNulty.
"Simon Singh has to prove he has a licence. The licence he [...] claims is the title of "Scientist" rather than "Journalist" or "Other Commentator"."
He has a PHD in particle physics from Cambridge University and CERN. The claim he makes to be a scientist would seem to be fair do you not agree?
It would certainly seem to be considerably stronger and less anecdotal than your case for Chiropractic.
Well, what about this scenario: The first man is accused of trespassing with notice of a certified letter from a neighbor's lawyer (the second man) stating fallaciously that the first was informed not to trespass and yet did so repeatedly even after the posting of "no trespassing" signs and that further trespassing will result in civil action.
Is this not libel and could not action be taken against the second man for falsely accusing the first?
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