English Libel Law
concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.’ 10 Also, a comment can only be fair when the defendant can show that it is formed on the basis of true facts; and these facts lead the defendant to truly believe in his published comments. The defendant must also show that his sole purpose is to purely comment on the matter without any wrongful intentions such as damaging the reputation of the plaintiff – ‘One constraint does exist upon this defence. The comment must represent the honest belief of its author. If the plaintiff proves he was actuated by malice, this ground of defence will fail.’ 11 Therefore, libel law not only restricts publishers to the mere publication of facts, but governs in what way and under what circumstances they are allowed to publish certain contents and what sorts of comments they are allowed to make. An unfair libel law can be detrimental to the right to freedom of speech and hinder necessary criticisms, debates and discussions which can lead to the betterment of public interest. At this point, the observant reader may already have noticed anoddity about English Libel Law – the burden of proof in a libel action is on the defendant, who must give evidence in order to make one of the defences available for himself. In other words, there is an assumption of guilt in English Libel Law, contraryto the presumption of innocence in the rest of the English Common Law. Moreover, journalists are often obliged to keep their sources a secret. The failure to reveal their sources may work against them in a libel trial, as they struggle to prove their publications free from defamation. Sceptics may argue that since it is the defendant who accused the plaintiff of allegations in the first instance, it naturally should be the defendant’s responsibility to prove one’s innocence by showing the court that the published contents are in fact true or fair comments. However, one should not
overlook the fact that journalists and commentators are normally advised by the editor and their articles are proofread before publication. Any intentional and false assaults and accusations are generally removed, as publishers know better than anyone else how easily libel actions can be taken against them. Yet, journalists critical of certain public issues remain constant targets as under the current system, the suing party does not need to prove actual damage to reputation before taking libel action against them. Therefore, as long as the concerned party is substantially better financed than the individual writer, the law can effectively be manipulated and abused to threaten, intimidate and silence any unfavourable critics. After all, libel litigations are notorious for incurring astronomical legal fees and being extremely time-consuming. Moreover, the defence of fair comment, given its requirement of a basis of facts for the comment, disregards any possible debates and discussions of scientific and academic issues, especially those of important public interest. In British Chiropractic Association v Singh , Simon Singh published an article critical of chiropractic treatments in The Guardian . However, the science journalist was immediately sued for libel by the British Chiropractic Association. Eventually, Singh claimed victory in the case and justified his comments but its high legal fees coupled with the loss of time and earnings led to his withdrawal from his monthly science column and his refraining from commenting on related issues. 12 This case illustrates how easily a resourceful party can silence critics by suing for libel. Unfortunately, the subjects and events these journalists, scientists and non- governmental organizations report, debate and critique are often of important public interest. The reversed burden of proof and the fact that better financed parties often have the upper hand in libel litigations result in a serious chilling effect on healthy debate and criticism on subjects of important public interest. It is submitted that robust scientific and academic debates should not be intervened by libel laws. Although arguments in such debates may not be able to be proved positive at the current stage, only through
10 London Artists Ltd. v. Littler [1969] 2 Q.B. 375, 391 11 Neil, B. and Rampton, R. (1983) Duncan and Neil on Defamation 2 nd ed., p.58-62
12 Singh, S. (2010) Simon Singh: This is goodbye
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