The main page for this series on libel is here.
What is defamation law actually for?
So familiar are we with its presence in English legal and media life that we perhaps take the existence of defamation law for granted.
In practical terms, the law of defamation provides the means by which legal action can be taken (or threatened) in respect of statements which are unwelcome to the claimant, regardless of any public interest in those statements being made.
Defamatory statements are the sort which will tend to make others think less of the claimant (or so the claimant may contend), and the claimant can then use the law of defamation to deal with defamatory statements.
However, to approach the law of defamation in this way is almost to adopt a circular definition: that the law of defamation is about the legal consequences of allegedly defamatory statements.
What this approach does not tell you is why allegedly defamatory statements should prompt adverse legal effects; indeed, it does not tell you why we need a law of defamation at all.
The law of defamation should not exist for its own sake. But, in many ways, the practice of defamation law in England now is just an exercise in spotting and threatening to litigate over statements which can be construed as defamatory so as to serve the commercial interests of clients and their lawyers. The law of defamation is thereby deployed as a mere method of media management and, in my view, it has disconnected form its correct purpose.
So what is the correct purpose of defamation?
It must have a purpose. For, just as the law of trespass protects the integrity of land, persons, and goods, and just as the law of copyright protects the interests of the creators (and subsequent owners and licensees) of originally-created works, the law of defamation must have a purpose.
The correct purpose of defamation is to vindicate reputations.
This means that the correct purpose of defamation is not to merely “manage” reputations. Nor is the correct purpose of defamation to “manage” the media. The use of defamation in these regards has led to it disconnecting from what it should be doing.
The law and practice of defamation only makes any sense – only comes close to working with any efficacy – if cases go to full trial: where the defendant can put forward its defences and the court (usually a jury) can decide or not whether the claimant can vindicate his or her reputation.
Almost all the abuses present in current English defamation law are because such trials – and such final vindications – are exceptionally rare (and horrifically expensive). Very few threats of defamation go any where near the courtroom. Almost all cases settle at a stage before a claimant can show any vindication at trial.
Accordingly, English libel litigation in practice has little to do with the actual vindication of a reputation. On the contrary, it uses the threat of the sheer expense and time of such a trial as a negotiating weapon or as a deterrence to unwelcome publicity.
Whatever the law of defamation is in practice, it is not directly about the vindication of reputations.
And it gets worse.
The substance of the law of defamation is also not really that much about reputation either.
Almost all the statements which can actually damage a person’s reputation – employers’ references, credit searches, complaints to police and regulatory authorities – are covered by “qualified privilege”. This means that the person making the statement is free to defame – regardless of the damage caused – as long as he or she is not being malicious.
A great deal of genuinely defamatory material is thereby outside the reach of defamation law.
The law of defamation also treats as actionable statements which do not cause any real damage to a person’s reputation at all. The law “presumes” that a written statement is damaging if it is defamatory. The claimant does not have to prove any damage whatsoever. Until recently, such a claimant would only have received nominal damages (of a farthing or, more recently, one pound) after a full trial. Such pointless claims are now more likely to be struck out as an abuse of process, though the application to strike out is still the costs risk of the defendant.
So we are in the counter-intuitive position of claimants using defamation law not to vindicate reputations but to manage publicity, and of defamation law not in many cases protecting reputations when they matter but providing a “cause of action” when they do not.
The law and practice of defamation is therefore almost entirely disconnected from being based on vindicating reputations. It deals with a residuum of situations, when qualified privilege does not bite, where the mainstream media – and now bloggers and users of the social media – publish something unwelcome to someone wishing to use the tools of “reputation management”.
The law of defamation is still stuck in a worldview where publication was a determined and considered process, and where a publication of any adverse material would, in an intimate business and social world, be likely to have an adverse effect on reputation. But in a world where everyone can self-publish, and where a great deal of self-publication will never impact on reputation, such a view is unsustainable.
Should the law still protect reputation?
There will always be a place for the law of defamation. However, it should in my view have a minor role in civil litigation, used occasionally when the laws of (say) privacy and malicious falsehood are not applicable. And when it is used, the emphasis should be proceeding to trial where, on the test of the defence and the evidence, a claimant can seek vindication.
However, as it stands, the disconnect between the law and practice of defamation on one hand, and the vindication of reputations on the other, is too stark. The law of defamation is too often being used for seemingly ulterior motives.
Whatever the nature of upcoming reforms to the law of defamation, there is one simple question: will the reforms make defamation law more connected to the vindication of reputations?
Next post: what is a reputation?
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