Article XIX, the Global Campaign for Freedom of Expression, is an international human rights organisation which defends and promotes freedom of expression and access to information worldwide. Defamation is one of the Global Issues on which they focus. Indeed, their 2000 Defining Defamation report (pdf) seeks to set out an appropriate balance between the human right to freedom of expression and the need to protect individual reputations. Principle 4 of this document, concerning criminal defamation, provides
(a) All criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. Steps should be taken, in those States which still have criminal defamation laws in place, to progressively implement this Principle.
Unsurprisingly, therefore, they have this week published an overview of worldwide defamation trends, which they have enlivened with interactive maps of applicable legislation and punishments. They simply record that, for both Ireland and the UK, there are civil and criminal sanctions for defamation. But, in a parallel development, they have lobbied (letter | press release (both pdfs)) the UK government to accept an amendment of the Coroners and Justice Bill 2008 put down by Dr Evan Harris, MP which would abolish criminal libel in the UK. [Update: see also Index on Censorship here and here] Harris told the Times:
Seditious libel and criminal defamation laws are a stain on our legal system and a terrible example to set in a world where free expression is so often restricted and oppressed. Parliament should sieze this chance to get rid of them.
These laws have an inglorious history. They were deployed by the King’s lick-spittle judges in the Star Chamber to torture puritans, and later used against John Wilkes and Tom Paine’s publishers. Their continuing existence serves only to provide an excuse for modern despots when they jail their critics – they always claim that they are merely using laws that are also on the UK statute book. It is time to expunge them.
A wonderful discussion of these cases is provided by Lord Walker’s Bentham Club Presidential Address on Security, Freedom of Speech and Criminal Justice in the age of Pitt, Burke and Fox (pdf).
Consequently, the amendment proposed by Harris simply provided:
The offences of sedition and seditious libel under the common law of England and Wales are abolished.
However, the House of Commons website records that the amendment was not taken during the debate. This is a pity, and I hope that it can be taken when the Bill is debated again. I have already blogged extensively about a similar Irish effort (here, here, here, here, here and here) in Part 5 of the still-delayed Defamation Bill, 2006. Whatever happened to that? Indeed, as the title question asks: why are legislators so loath to repeal criminal libel provisions?
William VIII, Duke of Brunswick (pictured left; 1806-1884) was ruling duke of the Duchy of Brunswick from 1830 until his death. A famous eccentric, he bequeathed at least two interesting events to history. First, he lost a famous chess game to Paul Morphy (the Bobby Fischer of his era). Second, he won an infamous libel appeal which now governs internet publication at English and Irish law.
The rule in Duke of Brunswick v Harmer (1849) 14 QB 185 is that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period; it has been followed at the highest levels (Berezovsky v Michaels[2000] UKHL 25 (11 May 2000); Dow Jones v Gutnick (2002) 210 CLR 575, [2002] HCA 56 (10 December 2002)) and in the online context (Godfrey v Demon Internet Ltd [2001] QB 201, [1999] EWHC QB 244 (26 March 1999); Dow Jones v Gutnick again). US law is different: a defamatory publication gives rise to a single cause of action for libel, which accrues at the time of the original publication, and that the statute of limitations runs from that date (see, eg, Gregoire v GP Putnam’s Sons 81 NE 2d 45 (1948)).
In Loutchansky v Times Newspapers [2002] QB 783, [2001] EWCA Civ 1805 (05 December 2001) the Court of Appeal declined to follow the US rule and instead reaffirmed Duke of Brunswick v Harmer. The Court declined to “accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression”, and held that it applies to internet archives. In effect, every time a newspaper’s online archive is accessed, there is a new publication and the limitation period starts to run from that date, and not from the date of the original publication. This proposition has significant consequences for freedom of expression (see Amanda Russell and Margaret Smillie [2005] JILT 3). In the European Court of Human Rights, the Times therefore argued that the rule in Duke of Brunswick v Hamer exposes publishers to potential litigation without time limit, and therefore infringes Article 10 of the European Convention on Human Rights.
Two Australian stories recently caught my eye; and, although at first blush the only link is Australia, there is in fact a deeper connection. The first is from the BBC news Website:
Australian writer Harry Nicolaides has been sentenced to three years in a Thai jail for insulting the monarchy. Nicolaides wrote a novel four years ago, which contained a brief passage referring to an unnamed crown prince. It sold just seven copies.
He admitted the charge of insulting the royal family, but said he was unaware he was committing an offence. Thailand’s monarchy is sheltered from public debate by some of the world’s most stringent “lèse-majesté” laws.
As the Dáil resumed yesterday, last week’s post on libel tourism has prompted me to pick up the story of the tortuous progress of the Defamation Bill, 2006 through the Houses of the Oireachtas [the Houses of Parliament]. When we left it on this blog, it had just scraped the through the Seanad [the Senate, the Upper House of Parliament] on the second time of asking; thereafter, it had a brief consideration in the Dáil [functionally equivalent to a House of Commons, the Lower House of Parliament] before the Summer recess halted its progress once more. This post, and the next few, will consider these stages of its progress, just in time to wait (and – probably – wait and wait) for further developments in the new Dáil session.
The Defamation Bill in the Seanad
The Defamation Bill, 2006 was introduced into the Seanad on 7 July 2006, and thereby began a long and winding road to enactment, a destination it has not yet reached. Read the rest of this entry »
On the day when the teacher convicted of blasphemy in the Sudan for allowing a class of young children to name a teddy bear Mohammed is pardoned and allowed to return home (BBC | Irish Times (sub req’d)) comes news of another relevant case. It has one of those very-legal looking, but uninformative, English case-name titles: R (on the application of Green) v The City of Westminster Magistrates’ Court[2007] EWHC 2785 (Admin) (05 December 2007), but for all that the title is uninformative, the judgment itself is significant. For the Green who made the application is Stephen Green, National Director of Christian Voice (their website sees A Nation in Pain and A Government in Rebellion, and therefore perceives A Need For Jesus, and A Need For Prayer); and the reason he was seeking judicial review of the City of Westminster Magistrates’ Court was that a judge in that court refused to allow Green to commence a private prosecution for blasphemy arising out of the BBC’s broadcast of Jerry Springer – The Opera. The Daily Telegraph said of it at the time:
It’s filthy, it’s funny, it’s brilliantly original and, taken all in all, about as much fun as you are likely to have with your clothes on. … It seems to me a stroke of genius by the composer Richard Thomas to turn this hideously addictive reflection of our age into an opera, and this is a real opera, full of beautifully sung arias and duets, and with a huge full-throated chorus who sing the word Jerry as if it were Kyrie. … The effect is genuinely funny, genuinely shocking, and if you are easily offended, this is not the show for you. Those with open minds and adventurous hearts will love it, however, and as the freaks’ parade rolls on, the production sometimes becomes unexpectedly moving.
Well, obviously, Green was easily offended, and he sought to commence a blasphemy prosecution against various people connected with the opera, including Mark Thompson, Director General of the BBC, for having broadcast it in 2005. (I saw it then; I wasn’t as impressed as the Daily Telegraph, though it passed the time of day entertainingly enough). Read the rest of this entry »
Yesterday, 21 March, was not only the Vernal or Spring Equinox, but also the anniversary of the birth, in 1685, of JS Bach (pictured left; see jsbach.org | wikipedia | baroquemusic.org) – composer of the Art of Fugue. It was also the day on which – stop press – during yesterday’s resumed Seanad debate (html | pdf to follow | Irish Times report (sub req’d)) on the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) Minister McDowell denied that he is a “fascist”, and insisted that he is “a liberal and a republican politician”! Whatever about the newspaper comments which provoked these declarations, or even some of the language he himself used in reponse to an effete lefty pinko commentariat? (Senator Norris’s summary of the Minister’s various pronouncements), nevertheless, at least on the issue of defamation, Minister McDowell yesterday once again proved himself on the side of the angels, declining many opportunities to fudge important issues of principle in the Bill.
With the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) on the agenda for the Seanad again today, now is good time to observe that the debate so far seems to have attracted more than its fair share of red herrings. Read the rest of this entry »
This week saw the launch of the website for the Office the Press Ombdsman and Press Council of Ireland – already much discussed on this blog. [Update (3 January 2008): the website has been revamped and is now available here). All told, it is a rather elegant, user-friendly, and comprehensive website, which will, for example, make it easy for a member of the public to contact the Council with a complaint. This comes hot on the heels of last week’s advertisments seeking applications from members of the public to serve as members of the Press Council. Read the rest of this entry »
Posted elsewhere (some of my recent posterous posts)
My posterous site is a companion to this blog: anything that catches my eye on the wild wild web that's too long for twitter but too short for a normal post here will (probably - eventually) end up over there.
Article XIX, the Global Campaign for Freedom of Expression, is an international human rights organisation which defends and promotes freedom of expression and access to information worldwide. Defamation is one of the Global Issues on which they focus. Indeed, their 2000 Defining Defamation report (pdf) seeks to set out an appropriate balance between the human right to freedom of expression and the need to protect individual reputations. Principle 4 of this document, concerning criminal defamation, provides
Unsurprisingly, therefore, they have this week published an overview of worldwide defamation trends, which they have enlivened with interactive maps of applicable legislation and punishments. They simply record that, for both Ireland and the UK, there are civil and criminal sanctions for defamation. But, in a parallel development, they have lobbied (letter | press release (both pdfs)) the UK government to accept an amendment of the Coroners and Justice Bill 2008 put down by Dr Evan Harris, MP which would abolish criminal libel in the UK. [Update: see also Index on Censorship here and here] Harris told the Times:
On the day when the teacher convicted of 
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