chapter
reports and activities is, however, covered by statutory qualified privilege (Defamation Act 1996, s 15 and Schedules). Yet public law has responded to this press liberty by granting courts the power to impose reporting restrictions and, in addition, other remedies may also be available to those disgruntled by the media (see p 285). The interesting question will be how these decisions, which impact on press freedom, will be affected by the Human Rights Act 1998 when it is fully brought into effect. 4 The Jonathan Aitken affair indicates just how defamation can be used to prevent the unmasking of cheats and liars in public life (see The Guardian, 9 June 1999). Claimants prepared to employ a little bit of perjury can, provided they are not found out, often find success in defamation actions, since the burden of proof is on the defendant. In American law, it is extremely difficult for public officials to sue in defamation, which is why the press were able to investigate the Watergate scandal. Ought similar rules to be introduced into English law? (Cf Reynolds v Times Newspapers Ltd [1998] 3 WLR 862.) 5 Note how defamation is a three party tort. There must be publication of the defamatory statement to a third party, however obscure: Morgan v Odhams Press [1971] 2 All ER 1156. This is where defamation can be distinguished from the Roman law delict of injuria, which was an action protecting the interest of dignity as well as reputation (Dig 47.10.1.2; cf CC, Art 16). It is tempting to say that defamation is a tort protecting a right of personality rather than patrimony, and this might help explain the continued use of the jury (s 69 of the Supreme Court Act 1981) and the absence of any requirement of proving damage in libel. However, this personality aspect is undermined by the fact that corporate persons can sue without proving damage. Ought this to be changed: ought proof of damage to be a fundamental element in the tort of defamation? 6 ‘Libel is often played as farce. Vain pop stars, self-important actresses and—yes—even editors can cut comic figures as they seek to protect their precious reputations in the mock Gothic majesty of the High Court. But the dishonest use of libel laws to suppress legitimate reporting activities of people in public life is no joke’ (‘Editorial’ (1999) The Guardian, 9 June, p 21). Is this fair comment? If so, how is it that the law of non-contractual obligations has got itself into this situation? Would a privacy law only add to the farce? Is it really decent that vain pop stars should be able to claim huge damages for being told they have a large bottom (or whatever), whereas abused children horribly molested by those employed by incompetent and uncaring local authorities get their cases thrown out of court (because it is not ‘just, fair and reasonable’ that they should succeed)? 7 Can defamation and the interlocutory injunction (see Chapter 3) be used by individuals to suppress publications that would be in the public interest to publish?
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