Judgment was today handed down in Thornton v Telegraph.
It is a complex judgment and will take time to digest.
But on first glance it appears that the Mr Justice Tugendhat has effectively introduced a substantial harm test for libel.
If so, that would mean that libel moves from being a tort (a type of legal action) which is actionable per se over even the most trivial comments to being one where the claimant has to show that the libel would have a substantial effect.
Again, I must emphasise that this is only at first glance, and I will blog fully about this when I can.
But do read the judgment.
Change seems to be afoot in libel law, and it is coming from the courts not the legislature.
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Wednesday, 16 June 2010
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4 comments:
That sounds like good news. but I'm cautious of being so positive.
Also, I haven't heard about this case yet, that I am aware of. Have I been missing something, or has it slipped in even under Jack of Kent's radar??
I'm not sure I approve of judicial activism pre-empting the legislature. Most especially when a bill seeking remedies to the area is in the legislature. That the test may be a good thing is neither here nor there. The point is that we the people via parliament are supposed to be sovereign, not appointed judges.
If parliament were not acting to cause necessary reforms then this might be justified, but that situation clearly does not currently pertain.
Of with his wig!
I think that the standard* adopted at (92) is a pretty solid one. I'm not sure that it changes the per se nature of the claim though: there's still no need to prove actual damage to reputation, just the potential for damage.
@Peter: I think that what he does in the case isn't really altering the law as much as interpreting what's already there. At (93) he clearly doesn't think that he's doing anything wrong. Anyway: I'm much happier with judges altering areas of the law that are under scrutiny. It's the playing around in the unseen corners of the thing that's most dangerous to democracy,
* "the publication of which he complains may be defamatory of him because it affects in an adverse manner the attitude of other people towards him or has a tendency to do so"
Legislatures can, and often do, shirk their responsibility to maintain the law in a good state, whether because it is to hot to handle (e.g. abortion in Canada) or because it is not seen as important enough (e.g. libel in Canada and the UK).
Courts, on the other hand, don't really have that option but must do the best with the law as it exists, but that law does allow that novel situations or arguments can arise and the underlying common law (in common law countries) can supply an answer where there isn't already clearly binding precedent.
I've not yet read the decision, but claims of 'judicial activism' unaccompanied by specifics excite my skepticism.
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