1st August 2022
Writing about the Wagatha Christie case reminded me of this thought I once had.
Defamation is an odd tort, and to my mind it is a lot like trespass to land, which is another odd tort.
Odd, as in distinctive.
When a person goes on the land of another, and the land owner wants to sue, the land owner has to prove they own the land and that there is/was an intrusion.
It is then for the defendant to prove that they had a right to enter the land, such as a licence.
Similarly when a person defames the reputation of another, and the defamed person wants to sue, the defamed person has to prove that they have a reputation in the jurisdiction and that the defaming statement related to them.
It is then for the defendant to prove that what they say is true or a fair opinion or some other defence.
Trespasser/defamer; land/reputation; and the onus being on the defendant to justify the intrusion/statement.
It is almost as if the law conceives of a reputation almost as a property right, and the presumption is against any rightful intrusion/defamation.
The cry of “get orf my land” transforms into “get orf my reputation”.
*
One criticism often made of libel law is that it is on the defendant to prove a defence.
The claimant does have to prove certain things: that they have a reputation in the jurisdiction; that there was defamatory statement published to the third party; and that the defamatory statement caused (or is likely to cause) serious harm.
So it is not true that a libel claimant does not have to prove anything.
But once these things are shown, it swings to the defendant to prove their defence, and not for the claimant to disprove it.
That this is a practical problem for defendants is obvious.
But the question is whether it could be done any other way?
Just as it would not be for the landowner to prove an intruder has not got a licence, should it be for the defamed person to disprove a defamatory statement of fact?
Surely the person defaming another should have their factual basis in place before defaming another?
Until and unless this problem of the reverse burden of proof is addressed, then many attempts at libel reform will not succeed
This is because many of the problems of libel in practice flow from this key shift in who has to prove what.
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After the (for me, very necessary) explainer on this latest libel trial, would it be possible to have a similar blog on the judge’s summary?
Yes, I read it, but I’m sure I missed a lot that was camouflaged by “polite speak”.
I really don’t care about rich WAGs suing each other.
I do care when very rich people who are may well be behaving illegally sue or threaten to sue people who try to expose any such illegalities.
I have also seen eg hospital trusts spend vast amounts of money to silence whistleblowers (who have no cash to fight them in court).
The unfairness when a villain with lots of money can silence those who would wish to expose them is a real problem in the libel laws.
In my view, the real problems with libel law are that:
a. The costs are so high that libel law if effectively only available to the very rich.
b. You have to be famous to have a reputation worth defending in court.
So these are laws to protect the elite. A rich person can prevent a poor blogger saying mean things about them simply by issuing a writ; they don’t actually have to prove that the blogger damaged their reputation, because the blogger has no choice but to roll over.
Perhaps libel should be made a crime, rather than a tort. Then it could be prosecuted by the state, and penalties allocated according to the magnitude of the offence, rather than the fame of the person allegedly defamed. Then the alleged defamer would be faced with the costs of the state prosecutor, not the cost of paying the most-expensive QCs in the land. The state prosecutor wouldn’t be pursuing silly cases like Wagatha; they’d only be willing to go after egregious cases of clearly malicious lying.
Criminal libel exists in many jurisdictions and was available to the state in the UK until 2009, when it was formally abolished by the Coroners & Justice Act 2009.
Criminal libel is a very bad thing. It sinks below international free speech standards. It is open to abuse by powerful state officials. Since reputation is such a personal thing, there is no way even well-meaning police-officers can possibly identify what is sufficiently damaging to warrant prosecution. Any attempt at doing so would cast a huge chill on free speech and press freedom. It is best dealt with by the civil law, where are Claimant can seek protect their reputation rights if they want.
Punishing someone with a fine or imprisonment and the stigma of criminal record is a disproportionate response to the wrong of damaging someone’s reputation.
You’re right, Jack, that it’s too expensive to bring or defend a libel action. Reducing costs might have the effect of reducing the chill on public interest journalism, whilst also allowing Claimant’s of slender means to protect themselves against smears.
Interesting thoughts. But, non-legal professional that I am, it seems to me that a lot of civil cases have similar double burdens of proof.
Take damages, for example. The claimant first has to prove that there is a contract, and that the defendant is in breach of a clause in that contract which gives rise to damages. But the defendant then has to prove (if they want to defend the claim) that the contract, or that clause, does not apply, or that there is another clause which negates the one relied on by the claimant. If they fail, they lose.
This onus on the defendant to defend the claim is one of the reasons why it’s easy to get a default judgment in a civil case if the defendant does not contest it. By contrast, the criminal courts are extremely reluctant to try a defendant in absentia, and will only do so when appropriate safeguards for a fair trial are in place.
As far as libel is concerned, I can’t see any way to make changes that do not require the defamer to be able to justify their defamation. It is a fundamental quid pro quo of freedom of speech that the speaker, in exercising their right of speech, must accept ownership of their speech and the consequences thereof.
Rather different from IP infringement, where the infringed party has to make the case. Perhaps not surprising, since IP is a purely exclusive right (it defines what doesn’t belong to others), whereas land ownership and reputation are inclusive rights (they define what’s yours).
But, unlike trespass, the bringing of a libel case, unless coverage of it is suppressed, almost always raises the public profile of the defamation. And, as we know, mud sticks, especially when the defendant is successful.
Interesting. It is perhaps also somewhat analogous to an aspect of employment law.
If a claimant brings a case against their employer for discrimination, then it is for the claimant to show that there is some good reason to believe that discrimination may have occurred. If there is no real evidence brought then that aspect of the claimant’s case falls (but they may also be claiming unfair dismissal etc).
However, if the claimant can show something that gives the Employment Tribunal enough evidence that there MAY have been discrimination, then the burden of proof flips, and it becomes for the employer to show why they have NOT been guilty of discriminatory treatment.
Discrimination may still not be found, but the onus has shifted.
This makes sense to me. On a scale, with theft at one end and murder at the other, moralists put detraction in the middle. But they put calumny closer to murder. Everyone has a right to their good name and it should be for the defendant to prove. Even if what is said is true, there still must be a justifiable reason for revealing the truth.
Interesting thoughts. I had never thought of these 2 torts as linked. As the daughter of an Edinburgh, I am reminded of what my father used to say over the dinner table – “there is no law of trespass in Scotland”.
Oops, Edinburgh solicitor!
Tried this on students this year: ‘In Edwards (1975), where the offence was selling alcohol without a license, it was held that
the defendant bears the legal burden to prove they did in fact have a license. The offence of rape is sexual intercourse without consent. It would, therefore, be reasonable for the defendant in a rape trial to bear the legal burden to prove that they did in fact have the complainant’s consent.’
Discuss by reference to a range of considerations the courts take into account in determining the allocation of the burden of proof and relevant case law.
An extraordinary number not only didn’t disagree but thought the D already did have legal burden to prove consent.
Interesting analogy!
There’s another interesting dimension here – which was touched upon by Mrs. Justice Steyn in her ruling over the Vardy v. Rooney case.
In her judgement, the Justice noted that Mrs. Vardy had, since the case been made public, been subject to significant vitriol in public forums and across social media.
But in general definition, to prove a case of defamation (at least as this non-lawyer understands it) one has to prove:-
1. a statement was made to a person’s discredit
2. the statement tends to lower them in the estimation of others
3. it causes them to be shunned or avoided
4. it causes them to be exposed to hatred, ridicule or contempt.
I didn’t follow the case, but it was my understanding that Mrs. Vardy did experience elements of the 4th point, above, after the case went public.
On the other hand, I have to wonder about the means by which Mrs. Vardy was found to have helped/caused The Sun newspaper to publish the story about Mrs. Rooney “crashing a car” in the United States… That would have been to Mrs. Rooney’s discredit; it may well tend to lower Mrs. Rooney in the estimation of others. You might well argue that it could cause her to be shunned or avoided (especially if/when she was at the wheel of a motor vehicle, ahem). And lastly, you might argue that it could cause her to be exposed to hatred or ridicule – also potentially realistic given the way the event was reported.
I call out that specific event in particular because, just like a certain former President, Mrs. Vardy seems to have a habit of accusing those she may dislike of committing the very acts which she herself has been undertaking.
So whilst accept that “two wrongs don’t make one right”, I can’t help but think that Mrs Vardy seemed to think it was perfectly acceptable to repeatedly abuse the trust of Mrs. Rooney, in a way that she knew (because Mrs. Rooney clearly communicated the same) distinctly upset the target of her animosity. Not only did Mrs. Vardy continue the practice, her attitude was – and I quote, “I want paying for that…”
Yet when Mrs. Rooney had the temerity to make a public, factually correct but (for Mrs. Vardy embarrassing) public statement… well then that was, again to quote Mrs. Vardy, “war….”
My illiterate opinion: “Pot, meet kettle.”
The problem is the old thorny one of objectivity and subjectivity, the subject (the defamed party) may genuinely believe that the statement has harmed their reputation, in the Vardy case there is no doubt Vardy thought it had harmed her reputation – if nothing else had convinced her, the trolling would have, that is a subjective view of Rooney’s statement – it happens to be accurate in the sense that it had caused he harm – it did and will continue to damage her reputation.
But, it must remain the case that is is for her to prove that the defamatory statement is a defamatory statement, that in the Rooney case she was not the source of the leaks to the tabloid newspapers. If it turns out that she is, there is no defamation. They are two sides of the same coin. For Rooney to succeed, she pretty well had to convince the judge that on the balance of probability, Vardy was, as alleged in the statement, the source of the leaks. In effect the judge on the balance of probability believed Rooney over Vardy – with good reason I would suggest. Suppose her agent had given testimony, suppose Vardy hadn’t withdrawn a host of testimony DURING the trial, supposing the phone hadn’t fallen into the sea? Would we have had a very different picture of the case. I don’t think so. I think that objectively, looking at both sides of the case/argument we would draw the same conclusion as the judge. As long as both sides in a defamation case, can put their case, then I cannot see the problem. It is for a judge to decide on the balance of probabilities who is telling the truth – all court case come down to a question of who is telling the truth.
The claimant in trespass doesn’t have to prove “ownership” of the land, merely a better relative title as against the defendant. Perhaps that principle could be pursued, by analogy, in the context of the torts of defamation.
Thank you for that informative correction – and, yes
So not “Get orf moi land,” so much as “Get orf o’ this land to which Oi’ve got better toitle relative to yourn!”
“It is almost as if the law conceives of a reputation almost as a property right …” DAG
and
“But they put calumny closer to murder. Everyone has a right to their good name and it should be for the defendant to prove. Even if what is said is true, there still must be a justifiable reason for revealing the truth.” David
and
“But … to prove a case of defamation … one has to prove … it causes them to be exposed to hatred, ridicule or contempt.” Sproggit
In Jewish law, damaging someone’s reputation is indeed considered close to murder because, once said or written, one can never retrieve it. “Lashon hara” is the term for speech (or written statement) about a person or persons that is negative or harmful to them, EVEN though it is true. It is considered a very serious sin. On Yom Kippur sins through speech comprise a quarter of the wrongdoings one is supposed to face up to.
I’m in agreement with DAG’s conclusion, that it should be up to the claimant to prove their case, not the defendant to prove it didn’t happen. Proving a negative is always more difficult and this loads the case in the claimant’s favour.
But the defendant doesn’t have to prove a negative. As the post makes clear, the claimaint first has to prove a positive – that publication took place and that the material was defamatory. If both of those are successfully made, then the defendant in turn also has to prove a positive – that the statement was true, or that publication was in the public interest.
Well, let us imagine:
* You make a statement about me, which you say it is substantially true.
* I say it is false and has harmed me, and I make a claim for damages.
As a claimant, to get off the starting blocks, I will have to prove that (i) you have made the statement, (ii) the statement has a meaning that is defamatory, and (iii) that defamatory statement has caused damage to me.
Do you want me also to have to prove (iv) the statement is not true, and (v) no other defence, such as fair comment or public interest, arises? That is, the claimant should also have to prove all these negatives?
Or, once I have established there appears to be a case of defamation, should the burden of establishing a defence a fall upon you as the defendant?
(Mark mentioned a parallel with contract law above – with the claimant having to prove certain facts to bring a claim – contract, breach, loss – and the defendant trying to establish a defence. To draw another inexact parallel, this is not altogether different to a negligence claim, where a claimant can show that the defendant has breached a duty of care and thereby cause damage, but the defendant can reduce or escape liability if they can show some contributory negligence, or a voluntary assumption of risk by the claimant (“volenti non fit injuria”), or some illegality (“ex turpi causa”.) )
As I understand it, in the US, in the context of a constitutional freedom of speech, there is often a need to show “actual malice” to establish liability for defamation. But does that create too high a burden, and allow false and damaging statement to be made with impunity?
My words about not having to prove a negative don’t make good sense in the context. It’s a remnant that got left over after editing. I only realised the error after posting, by which time it was too late to correct.
I was aware that the defendant is able to show that what they said or published was true, after all they’ve been attempting to do so all these years.
In the USA it is up to the claimant to prove that the statements made were untrue, that they were stated as a fact not an opinion, and that the author was either negligent not verifying the statement was untrue, or was malicious. That’s in addition to the things a claimant must prove in British court. I think that’s a better balance.
The defences available to the defendant, such as public interest, would all still remain for them to use to support their case.
There is a fundamantal problem with libel, regardless of how you set thresholds and burdens of proof. People generally think that “true”, “false”, and “meaningless” are sufficient to classify statements, but they’re not. You need to split “true” into “provably true” and “unprovably true” and likewise for “false”. This is not just a technicality (though it certainly is also that – see Gödel’s incompleteness theorems for how it works in mathematics) – it has practical consequences.
You might witness something and therefore know it happened, but be unable to prove it. This has happened with serious consequences. Many people witnessed or were told what Jimmy Savile was doing, but he kept it secret all his life. Gordon Anglesea successfully sued Private Eye for libel over publication of sex allegations. A bit over 20 years later, he ws convicted of doing what had been alleged.
You cannot both prevent false allegations and guarantee that true ones can be heard.
I would normally expect “Look it up!” as a response to the following question. I have, to no avail.
A demand for a retraction (along with cash) is to be be expected by an aggrieved party before resorting to the courts, but has a court ever included an order to print a retraction as part of a finding for the complainant? And if the publication replies, “That would be to print a lie. We don’t do that.” does it get detained at Her Majesty’s pleasure, or what?
Under the Defamation Act 2013, section 12 (https://www.legislation.gov.uk/ukpga/2013/26/section/12/enacted) the court can order the unsuccessful defendant to “publish a summary of the judgment”. That should be uncontroversial as it is merely requiring the publication of an obviously true statement – what the judgement was.