Free Law Dissertations - Introduction The English Law Of Defamation Recognizes Reputation As An
Introduction
The English law of defamation recognizes reputation as an interest worthy of protection. Article 10 of the European Convention on Human Rights (ECHR) protects the right to freedom of expression, including the right to ‘hold opinions and to receive and impart information and ideas without interference by public authority’. This essay will explore to what extent the two are fully compatible, particularly with regard to determinations as to truth, opinions and value judgements and with regard to the balancing of freedom of expression against protection of reputation of public figures. This essay will also follow the progression of what can be seen as English law’s initial oversight of the ECHR, to a gradual acknowledgment, through to incorporation by means of the Human Rights Act (HRA) 1998 and towards what many hope will be an eventual harmonization of the two.
Defamation
English law affords protection to reputation by holding that every person is entitled to their good name, which if brought into disrepute, may give cause for an action in the tort of defamation either for libel, actionable per se, if the statement is in a permanent form or for slander if the statement is in transient form and the claimant can also prove special damage. In order to mount a claim for defamation a claimant must establish:
that the words used are capable of being defamatory either by lowering the claimant in the estimation of normal, right thinking people, exposing the claimant to hatred, contempt or ridicule or causing the claimant to be shunned or avoided.
that the words refer to the claimant even if not specifically named or even if reference is made through a fictional character, and
that the words are published publication in the legal sense meaning communication to at least one person other than the claimant
Defences to a claim of defamation include:
Justification (truth) a complete defence, not defeated by malice and which recognizes that a statement may damage reputation but also acknowledges that reputation cannot be upheld by concealing the truth;
Privilege on account that dissemination of the information outweighs the protection of reputation when such information is in the public interest. Privilege comprises two distinct defences:
Absolute privilege for situations of utmost importance such asparliamentary proceedings, judicial proceedings, or for official state communications (executive privilege) and,
Qualified privilege for communication of information in circumstances where there is a duty for the information to be given and received.
Fair comment dealing with non-malicious statements of opinion commenting on facts that are in the public interest.
Truth, Opinions and Value Judgements
Justification may appear to be the utmost defence but it is a less utilised defence as the truth in many circumstances is costly and difficult to prove. If truth is difficult to prove then opinions are even more impossible.
Dissertations - Free Law Dissertations
