Author: Eoin

… where speech is primarily concerned with a critique of someone’s private life, it will generally be seen as of decisively lower value, easily outweighed by reputational or privacy interests. Defamation law should recognise this by requiring that defamatory comments should be on a matter of public interest in order to attract protection under the ‘honest comment’ defence. This would ensure that both defamation and privacy law continue to develop in a harmonious way that answer to the relevant Article 8 and 10 values. Otherwise the result will merely be complex litigation in which newspapers seek to use ‘comment’ as a way of dragging peoples’ personal lives into disrepute in circumstances where to make the <em>factual</em> allegations that could justify the opinion would clearly incur liability under&nbsp; the tort of misuse of private information. Encouraging the publication of derogatory opinions about people’s private lives, where the relevant facts cannot be published without liability, is scarcely an aim that is in harmony with Article 8 – or indeed Article 10.

English PEN and Index on Censorship, two organisations committed to freedom of expression, embarked on the Alternative Libel Project last April and have spent the last year considering whether defamation claims can be resolved in a better way than by using the current High Court process. The project was funded by the Nuffield Foundation, and Index and PEN have had support and advice throughout from members of an expert advisory committee, chaired by Sir Stephen Sedley. The project’s final report, in which Index and PEN make recommendations for change was launched in the middle of March.

The report calls for a culture change but does not contain radical proposals, except perhaps on costs, although even here our recommendations are not without precedent in other areas of law. Instead it concentrates on improving the current system, ensuring judicial encouragement for parties to use methods of alternative dispute resolution (ADR), and calls for consistent, robust case management so that the court, and not a wealthy party, controls the litigation. The details of our recommendations can be found in the report, so I will not repeat them here. Instead, I’d like to expand on our thinking on three key issues.

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Lord Phillips

99. Although the judge considered, on the basis of Jameel, that responsible journalism did not require verification of the accusation made by the Article, his careful analysis of the evidence involved consideration of the evidential base of the allegations made in the Article. The judge concluded that the case against Sergeant Flood was not strong on the facts known to the journalists, but found it significant that the police appeared to have sufficient evidence to justify obtaining a search warrant and the other action that they took. There is a danger of using hindsight in a case such as this. My initial reaction on reading the facts of this case was that the journalists had been reasonably satisfied, on the basis both of the “supporting facts” and of the action of the police that there was a serious possibility that Sergeant Flood had been guilty of corruption. After a detailed analysis of the case I remain of that view. Contrary to the decision of the Court of Appeal, I consider that the requirements of responsible journalism were satisfied. I would allow this limb of the appeal.

Lord Browne

114. To my mind the critical question in this appeal – indeed the only real point of principle calling for decision – is whether it can ever properly be said to be in the public interest to publish, as here, the detailed allegations underlying a criminal investigation – to publish, in effect, a summary of the case against the suspect, reliant in part on anonymous sources, before even the police have investigated the allegations, let alone charged the suspect.