DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW In the Shadow of the Big Media: Freedom of Expression, Participation and the
Production of Knowledge Online
Jacob Rowbottom*
The freedom to speak on political matters is a cornerstone of democracy. Strong
protection for political speech has been recognised in numerous judicial decisions and
several statutory provisions. While many of the landmark cases concern the mass
media1 or the right to protest,2 the right to speak on political matters must be enjoyed
beyond these contexts. The importance of such protection to individual speakers is
more important than ever in the digital era, given the various opportunities people
now have to communicate via the internet, social media and other technologies. The
European Court of Human Rights (ECtHR) recognised this point in Yildirim v Turkey,
stating that “the Internet has now become one of the principal means by which
individuals exercise their right to freedom of expression and information, providing as
it does essential tools for participation in activities and discussions concerning
political issues and issues of general interest”.3 In a dissent in Mouvement Raelien
Suisse v Switzerland, Judge Pinto de Albuquerque argued that the Internet “is the
most open and dynamic network in history” and “today’s global marketplace of
ideas”.4
Alongside these benefits come concerns about the harms such communications can
cause. The contents of a website, blog or social media are more accessible and
durable than other forms of communication, and can often be reproduced by others in
minimal time and at minimal cost. For these reasons, in Editorial Board of Pravoye
Delo and Shtekel v Ukraine, the Strasbourg Court stated the “risk of harm posed by
content and communications on the Internet to the exercise and enjoyment of human
rights and freedoms, particularly the right to respect for private life, is certainly higher
than that posed by the press”.5 While this conclusion is debatable, the accessibility
and durability of digital communications also increases the risk that an individual’s
casually spoken words will come to the attention of a wider range of people and
attract a criminal prosecution or civil action.6
Against the background of the potential harms and legal restrictions, the law is still
finding its way in striking the right balance between freedom of expression and
competing rights and interests in the digital context. The default position of the
ECtHR is to apply the existing Article 10 jurisprudence on freedom of expression,
subject to gradual adjustments to adapt to the changing communications
environment.7 This article will argue that the status quo may in practice offer limited
*
University College, Oxford. Thanks are due to the organisers and participants of the Law and IT
Colloquium at the Buchmann Faculty of Law, Tel Aviv University for comments on an earlier draft.
1
See the landmark cases of Reynolds v Times Newspapers [2001] 2 A.C. 127, Derbyshire County
Council v Times Newspapers Ltd [1993] AC 534, Lingens v Austria (9815/82) (1986) 8 E.H.R.R. 407.
2
R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 A.C. 105.
3
Ahmet Yildirim v. Turkey (3111/10) November 18, 2012 at [56].
4
Mouvement raelien suisse v Switzerland (16354/06) (2013) 56 E.H.R.R. 14.
5
Editorial Board of Pravoye Delo and Shtekel v Ukraine (33014/05), May 5, 2011 at [63]
6
J. Rowbottom, “To rant, vent and converse: protecting low level digital speech” (2012) 71 C.L.J 355,
366-368.
7
See N. Vajić and P. Voyatzis, “The internet and freedom of expression: a ‘brave new world’ and the
ECtHR's evolving case-law” in J. Casadevall et al (eds) Freedom of Expression - Essays in honour of
1 Electronic copy available at: http://ssrn.com/abstract=2383901
DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW protection to the political expression of individuals and small groups, whom the new
technology is often thought to empower. The existing approach to political expression
gives limited consideration to the participation interests of speakers and sometimes
privileges the processes and methods of traditional journalism. Before looking at the
limits of the current law, the following section will begin by outlining some features
of the Article 10 jurisprudence.
Article 10 and the variable protection for expression
High value and the primacy of political speech
Under the jurisprudence of both the UK courts and ECtHR, political expression is
given heightened protection. According to the Strasbourg Court, “freedom of political
debate is at the very core of the concept of a democratic society which prevails
throughout the Convention”8 and Article 10 of the ECHR grants “little scope … for
restrictions on political speech or on debate on questions of public interest”.9
Consequently, more is demanded of the state to justify an interference with political
speech. Similarly, Baroness Hale has stated that political speech is “[t]op of the list”
of all the types of expression and deserves the strongest protection.10 The protection
extends broadly to include expression on matters that are in the public interest, and
can therefore extend to the discussion of powerful private actors as well as politicians
and state bodies.11 The position of political speech is to be contrasted with the more
limited protection offered to other types of expression. Pornography, hate speech and
gratuitous insults, for example, are granted relatively minimal protection. Speech is
placed on a continuum between the “high value” (political and public interest speech),
which receives strongest protection, and “low value”, which is given limited
protection. Artistic and commercial expression fall somewhere between the two
extremes and attract a level of intermediate protection. The methodology has some
costs. The value of the expression is often cited as a factor in Article 10 decisions, but
it is not always evident what role it plays in deciding the outcome of the case. 12
While coming at the cost of transparency, the Article 10 jurisprudence has developed
a flexible test that attempts to protect the speech that is most important in a
democracy, while allowing some restriction of harmful speech.
High level/low level
In an earlier article, I have argued that the value of speech should not be the sole
determinant of the strength of protection. Instead, courts should (and often do) look at
the context of expression.13 To illustrate this, I set out another continuum concerning
the “level” of expression. At one end of the spectrum (the “high level”) lies
Nicolas Bratza, President of the European Court of Human Rights (Oisterwijk: Wolf Legal Publishers,
2012).
8
Lingens v Austria (9815/82) (1986) 8 E.H.R.R. 407 at [42].
9
TV Vest As & Rogaland Pensjonistparti v Norway (21132/05) (2009) 48 E.H.R.R. 51 at [59].
10
Campbell v MGN Ltd [2004] UKHL 22; [2004] A.C. 457 at [148].
11
Thorgeir Thorgeirson v Iceland (A/239) (1992) 14 E.H.R.R. 843 at [64]; Hertel v Switzerland
(25181/94) (1999) 28 E.H.R.R. 534 at [47]; Steel & Morris v UK (68416/01) (2005) 41 E.H.R.R. 22 at
[88].
12
For example, Lingens v Austria (9815/82) (1986) 8 E.H.R.R. 407 is often taken as a landmark case in
recognising the heightened protection to political speech. The extent to which the political speech
element led to the finding of a violation of Article 10 is unclear, as the case can be explained on the
narrower basis that the Austrian law imposed an impossible burden in requiring defendants in a
criminal libel case to prove the truth of a value judgment.
13
Rowbottom, “To rant, vent and converse” (2012) 71 C.L.J. 355.
2 Electronic copy available at: http://ssrn.com/abstract=2383901
DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW professional mass communications that have a broad audience, are well placed to
negotiate legal issues, tend to be well resourced and well prepared, and are produced
by experienced individuals. At the other end of the spectrum lies “low level” speech,
such as informal conversations between individuals, the classic example being friends
chatting in a bar. In such circumstances, the expression is often spontaneous and
sometimes ill thought out, offensive or trivial, yet one would not normally expect a
bar room conversation to be subject to legal restrictions. Nonetheless, content that is
sometimes regarded as the digital equivalent to bar room chat - informal
conversations taking place on the internet and social media - have been subject to a
number of legal controls. In the earlier article, I argued that such low level expression
deserves some protection. A casual comment on the social media should not attract a
criminal penalty or trigger an expensive lawsuit (save in exceptional cases). Instead,
the harms of such expression might be better dealt with through more proportionate
sanctions.
The two continuums
The two continuums of “value” and of “level” intersect, as shown in Figure 1. Speech
of different values can be found on all levels. There can be “low level” speech among
individuals discussing “high value” matters of public importance, or “low value”
matters such as gossip or obscenities. Similarly, “high level” speech can be of “low
value”, such as pornographic magazines or titles specialising in celebrity gossip.
Figure 1 shows a way of distinguishing the various types of expression according to
these two variables, though where any example should be placed on the two
continuums is open to debate. This article looks at arguments for protecting low
level/high value digital expression (found in the lower right hand section of Figure 1).
While there are good reasons to protect low level speech in general, shortcomings in
the existing law should raise particular concern in so far as it constrains political
participation and the chance to contribute to public debate.
3 Electronic copy available at: http://ssrn.com/abstract=2383901
DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW Figure 1 – The intersection of the two continuums
Different levels of digital communication
All levels and types of speaker can be found in digital communications. Despite the
egalitarian rhetoric that often surrounds the discussion of internet communications,
not all speakers are equal in terms of visibility, reach, resources and experience.
Digital speakers are not all low level, and high level speakers are still a feature of the
digital world. A relatively small number of websites continue to get a disproportionate
amount of traffic and attention.14 The traditional mass media remains an important
source for political information.15 There are also new mass media entities that have
only a digital presence (no print or broadcast version), with the Huffington Post being
the prime example. There are a number of other media models that can operate in the
digital world that can range between the highest and the lowest levels.16 These
include: organisations specialising in investigative journalism, such as the Bureau of
Investigative Journalism; fact-checking organisations such as Fullfact.org; politically
attached websites such as ConservativeHome and Left Foot Forward; and
campaigning websites such as 38 Degrees.
14
J. Rowbottom, Democracy Distorted (Cambridge: Cambridge University Press 2010); M. Hindman,
The Myth of Digital Democracy (Princeton: Princeton University Press, 2009).
15
For example, Ofcom Communications Market Report 2013 (1 August 2013) states that television
“remains the most important and frequently-used mode of news consumption”, p.105. Among the
online sources of news, the BBC is the most used, p.113.
16
For discussion see Y. Benkler, “A Free and Irresponsible Press: Wikileaks and the
Battle over the Soul of the Networked Fourth Estate” (2011) 46 Harv. C.R.-C.L. L. Rev. 311, 377-378.
4 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW The above examples concern higher profile political activities that rely on some
professional staff and have a relatively large audience. The amateur and the individual
also play an important role. A person can submit information to the higher level
speaker, whether sending a photo to a traditional media outlet or leaking a document
to Wikileaks. Individuals can also play a role in filtering information provided by
higher level outlets.17 The individual can also produce his or her own content. There
is a considerable amount of low level expression taking place on the internet, for
example when an individual posts a comment via Facebook or Twitter that is likely to
be seen by only a handful of friends. The important point is that the online world
accommodates a wide variety of speakers and contexts. Some online speakers are the
digital equivalent to broadcasting companies, while some speakers are engaged in
small-scale conversations (and many in between). The Article 10 jurisprudence needs
to be sensitive to these different contexts.
Speaker and audience interests
Of the two continuums that have been outlined, the “value” of the expression has been
the central focus in the Article 10 jurisprudence. The emphasis on the primacy of
political speech reflects a justification for freedom of expression that rests on its
service to democracy. If we ask how expression serves a democracy, a distinction can
be drawn between speaker-based and audience-based justifications.18 On the latter
type of argument, political speech is of greatest importance in ensuring that the
audience is sufficiently well served with diverse views in order to make informed
choices about political matters.19 While there are various speaker-based accounts of
the democratic justification for expression,20 a simple version of the argument is that
expressing an opinion is a way that people can engage with the political process and
contribute to collective decision-making.
The two types of justification are not mutually exclusive and both can be invoked to
support the strong protection of political expression. However, in the context of a high
level one-to-many speaker, most obviously the mass media, the main justification is
audience-focused.21 This is for good reason. If only a few speakers can reach a mass
audience or properly participate in the marketplace of ideas on the national scale, then
the speech rights of those privileged few are valued in serving the needs of the
audience, rather than as a means for the speaker to participate. In other words, the
freedom of the TV pundit or newspaper columnist is valued not because it allows
such political celebrities to exercise personal influence or pursue their pet agendas in
a way that is not open to other individuals. Instead, it is valued because such content
helps to inform the audience.
This audience-centered justification provides one reason why, when we are concerned
with high level speakers, a sharp distinction is drawn between high and low value
17
See discussion on collaborative methods of news production below.
See E. Barendt, Freedom of Speech, 2nd edn (Oxford: Oxford University Press, 2005), pp. 23-30.
19
See A. Meiklejohn, Free Speech and Its Relation of Self-Government (New York: Harper, 1948),
referring to the First Amendment protecting those engaging in “public discussion and public decision
of matters of public policy.” See also A. Meiklejohn, “The First Amendment is Absolute” [1961] The
Supreme Court Review 245 for a broader definition of political speech.
20
For example, see J. Weinstein, “Participatory Democracy as the Central Value of American Free
Speech Doctrine” (2011) 97 Virginia Law Review 491.
21
J. Balkin, “Digital Speech and Democratic Culture: A Theory of Freedom of Expression” (2004) 79
New York University Law Review 1, 28-31.
18
5 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW speech. Expression on the mass media can amplify both the good and bad effects of a
communication. For example, serious in-depth journalism in the mass media (which is
both high value and high level) enriches public knowledge by discussing important
issues and sharing information with many people. When serving the public interest,
the mass media bring informational benefits that are deserving of the strongest
protection. By contrast, when a television programme or newspaper engages in a false
and personal attack, it not only lacks informational value for the audience, but creates
greater harm to the individual than if the attack were made in the context of a face-toface conversation. When a broadcaster or newspaper acts in this fashion, the
expression is an abuse of media power. Given the amplified benefits and harms, the
media may be subject to privileges and protections that would not normally be
afforded to the individual speaker, but also subject to additional responsibilities too.
The approach can be illustrated by the decision in Gaunt v Ofcom, in which the court
had to consider whether the communications regulator’s reprimand of a radio station
was a violation of Article 10.22 In that case, the radio presenter interviewed a
councillor about his view that smokers should not be permitted to foster children, and
during the live interview called the councillor a “Nazi” and an “ignorant pig”. The
court found that the regulator’s decision did not violate Article 10, with Lord
Neuberger stating that the exchange did little to serve the public interest. Lord
Neuberger found the only real information that was conveyed – the councillor’s view
on smokers fostering children – was made known in the introduction to the
interview.23 Aside from that, listeners were given “no further idea of his views or
reasons”, but were simply made aware of the presenter’s hostility to the councillor.24
The interview provided a “lack of any substantive content”.25 While the case was
concerned with broadcasting, which is subject stricter content controls than any other
type of media, the reasoning highlights how the speech rights of the mass media are
assessed by the quality of information conveyed in the media product. In Lord
Neuberger’s view, the radio presenter’s choice of language to represent his strength of
feeling did not provide new information that the audience needed to hear.
By contrast, when looking at political expression at the lower level, the participatory
speaker based justification needs to be considered as well as the audience based.
When individuals converse about politics, sign a petition or join a march to
demonstrate support for an issue, we value such expressive activities not solely
because it informs the listener, but because it allows the individual to have his or her
say too. In situations where people have equal opportunities to speak, the ability to
communicate is not a special power or privilege. That is one crucial factor that
distinguishes the individual speaker in the more egalitarian conditions of the low level
context, from communications in the mass media. Where there is no concentration of
power to abuse, the individual speaker should not normally be subject to the same
type of condition or responsibility that we would expect of the high level mass media
speaker. Yet, it is argued later that the law on political speech is sometimes in danger
of overlooking the significance of these differing contexts.
22
R (Gaunt) v Ofcom [2011] EWCA Civ 692; [2011] 1 W.L.R. 2355. For criticism of the Court’s
reasoning see I. Hare, “Insulting Politicians on the Radio?” (2012) 4 Journal of Media Law 29.
23
Gaunt [2011] EWCA Civ 692 at [42].
24
Gaunt [2011] EWCA Civ 692 at [42].
25
Gaunt [2011] EWCA Civ 692 at [46].
6 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW One problem is that certain laws restricting expression come with no public interest
defence or explicit protection for freedom of expression. This problem can arise when
laws that were initially designed to deal with public order, hate mail or abusive phone
calls are applied to digital speech. The approach taken with these laws is to treat the
communication not primarily as speech – that is the expression of someone’s thoughts
– but as a disruption, a nuisance or a gratuitous malicious act. With such a
characterisation, the legal framework often provides limited scope for freedom of
expression to be adequately considered. I will leave the discussion of such laws for
another occasion. The focus of this article will be to consider whether laws that do
contain a public interest defence adequately protect political speech in the low level
digital setting. The law of defamation and privacy provide two case studies that will
be examined in light of these issues.
The public interest
There are a number of laws that seek to accommodate free speech concerns through
public interest defences. These defences reflect the Article 10 jurisprudence on
political speech discussed earlier. The Strasbourg Court often supplements statements
about the importance of political speech with comments that journalists are entitled to
special protection, given their function as a public watchdog and in imparting
valuable information.26 However, the protection is not limited to the professional
media. In Steel & Morris v UK, the ECtHR emphasised the role of “informal
campaign groups” that operate “outside the mainstream to contribute to the public
debate” through activities such as distributing leaflets.27 The Court therefore
recognises the role that lower level speech can have in serving the public interest.
However, in that case the court went on to note:
“The safeguard afforded by art 10 to journalists in relation to reporting on
issues of general interest is subject to the proviso that they act in good faith in
order to provide accurate and reliable information in accordance with the
ethics of journalism … and the same principle must apply to others who
engage in public debate.”28
Under this approach, low level speakers are entitled to the same protection as the
traditional mass media, but only on the condition that they fulfill standards that are
normally expected of the professional media. While this might sound like an
extension of Article 10’s heightened protection, the standards were formulated with
the position of the high level speaker in mind. Applying these conditions to all
speakers can, it will be argued, weaken the protection of political speech. The
following sections will consider the extent to which the conditional protection of
expression rights has affected the protection of low level expression in domestic law.
Political libels
Public interest and professional standards
The Defamation Act 2013 reformed defamation law in England and Wales, and
introduced a new public interest defence. Section 4(1) provides that:
It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on
a matter of public interest; and
26
Observer v UK (13585/88) (1992) 14 E.H.R.R. 153 at [59]
Steel and Morris v UK (68416/01) (2005) 41 E.H.R.R. 22 at [89]. See also Animal Defenders
International v UK (48876/08) (2013) 34 B.H.R.C. 137 at [103] on the watchdog function of NGOs.
28
See also Axel Springer v Germany (39954/08) (2012) 55 E.H.R.R. 6 at [93].
27
7 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW (b) the defendant reasonably believed that publishing the statement
complained of was in the public interest.
To understand the possible issues surrounding that defence, it is important to
understand what went before. Under the old common law (that the 2013 Act
replaces), the case of Reynolds v Times Newspapers established a defence of qualified
privilege for expression on a subject matter that was in the public interest, as long as
the requirements of “responsible journalism” were met (“Reynolds privilege”).29 The
defence was “based on the public's right to know”30 and to receive “important
information”.31 The rationale was not to protect the individual’s right to participate
and speak out on political matters, but to prevent defamation laws from chilling the
dissemination of valuable knowledge. Reynolds privilege was therefore rooted in the
audience-focused rationale for free speech, which is unsurprising given that the cases
defining the defence involved the mass media. The defence was nonetheless open to
any speaker. In Seaga v Harper, Lord Carswell in the Privy Council said of the
defence that he “can see no valid reason why it should not extend to publications
made by any person who publishes material of public interest in any medium, so long
as the conditions framed by Lord Nicholls as being applicable to ‘responsible
journalism’ are satisfied.”32 At first sight, this appeared to place all publications in the
same position and the press attracted no special privilege.
Much, however, depended on what the requirements of “responsible journalism” were
and the extent to which amateur publications could fulfill those requirements. The
decision in Reynolds set out ten factors to identify when a journalist acted
responsibly.33 Among the factors, the court looked at the source of the information,
the steps taken to verify the information, whether the claimant’s comment on the
allegations was sought and the tone of the article.34 The test was devised in the late
1990s, before the full extent of the freedom to publish on the digital media had been
realised. The standards of responsible journalism were therefore formulated with the
practices associated with traditional investigative journalism in mind. The standards
of the professional journalist were used to determine the balance as to when a
publication should or should not be liable for publishing a false defamatory story.
The requirements of responsible journalism were, critics argued, difficult even for
smaller titles within the traditional mass media to fulfill. Alan Rusbridger, editor of
the Guardian newspaper, told the House of Commons Culture Media and Sport Select
Committee in 2009 that the defence works well for publications with a legal
department that can provide legal advice, but poses greater challenges for smaller
regional papers that do not have such professional support.35 Furthermore, to fulfill
29
Reynolds v Times Newspapers [2001] 2 A.C. 127; Jameel v Wall Street Journal Europe [2006]
UKHL 44; [2007] 1 A.C. 359.
30
Lord Hope, Jameel [2006] UKHL 44 at [107].
31
Baroness Hale, Jameel [2006] UKHL 44 at [146].
32
Seaga v Harper [2008] UKPC 9; [2009] 1 A.C. 1 at [11]. The Privy Council rejected the view
expressed in Kearns v General Council of the Bar [2003] EWCA Civ 331; [2003] 1 W.L.R. 1357 that
the defence only applied to the media. See also Flood v Times Newspapers [2012] UKSC 11; [2012] 2
A.C. 273 at [44].
33
The House of Lords in Jameel [2006] UKHL 44 stressed that these factors are to be applied flexibly.
34
See Lord Nicholls in Reynolds v Times Newspapers [2001] 2 A.C. 127.
35
House of Commons. Culture, Media and Sport Select Committee. Second Report of 2009-10, Press
standards, privacy and libel. The Stationary Office, 2010. HC Paper No. 362-II (Session 2009/10),
evidence given on 5 May 2009, at Q897.
8 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW the requirements of the defence, Rusbridger noted that “[y]ou have to work extremely
thoroughly in the way you phrase questions and it is a long, drawn out, rather arduous
way of processing stories …”.36 If a small newspaper with a handful of staff had
difficulties in navigating the requirements of Reynolds, then a small scale or amateur
publication on the internet was likely to face bigger problems. Large media
organisations might have had the resources to employ lawyers to help make an article
“Reynolds-proof”, but that would not be true for many low level speakers.
Some of the guidelines for Reynolds also seemed ill suited to small-scale publications.
For example, under the old guidelines a responsible journalist should seek the
comment of a claimant in relation to the allegations in the article. Let’s say an
individual blogger wants to publish a post about a politician that is potentially
defamatory. If that blogger is a professional journalist or is working for a high profile
website, then it might be reasonable to expect him to contact the politician to get their
comment. The same cannot be said of every individual who makes a potentially
defamatory blog post or “tweets” about a politician. If every such speaker were to
follow the Reynolds guidelines, then many politicians would find themselves
inundated with requests for comment. In many cases, the politician would not know
who the low level blogger is and would not know how seriously to take the
allegations. In any event, politicians may not wish to be bothered with responding to
allegations from anyone who posts a strongly critical article about them. The blogger
may also anticipate a relatively small audience for his article and as a result would see
little point in getting a comment from such a person. Such requirements seem to be
more appropriate in the case of the professional journalist writing for a mass
audience, in which the burdens of responsibility should be greater.
Similar points can be made about some of the other requirements of responsible
journalism. For example, in deciding whether a journalist acted responsibly, the court
could look at the steps taken by the defendant to verify the information. The group
JUSTICE told a parliamentary committee that the “resources available to undertake
fact-checking and the like will obviously differ depending on whether the defendant is
a major newspaper, for instance, or someone who blogs on the internet in their spare
time.”37 The overarching point is that standards designed with national newspapers in
mind may not be appropriate for all speakers. Such demanding conditions for a
defence can fail to protect the participatory goals for expression and, as will be argued
below, do not reflect the ways that low level speakers can contribute to the production
of knowledge. The requirements of Reynolds were not, however, rigid and could have
been relaxed in relation to low level speakers to avoid some of these problems.
Collins writes that “more leeway” might have been granted “to diligent individual
bloggers who publish serious allegations having made such inquiries as are
reasonably available to them”.38 This issue was never tested and it remains to be seen
whether this path will be taken in the new law.
36
House of Commons. Culture, Media and Sport Select Committee. Second Report of 2009-10, Press
standards, privacy and libel. The Stationary Office, 2010. HC Paper No. 362-II (Session 2009/10),
evidence given on 5 May 2009, at Q897.
37
Report of the Joint on the Draft Defamation Bill: Written Evidence. The Stationary Office, 2011. HL
Paper No. 203/HC Paper No. 930-III (Session 2010/12), p.77.
38
M. Collins, The Law of Defamation and the Internet, 3rd ed. (Oxford: Oxford University Press,
2010) at [13.43].
9 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW The Defamation Act 2013 replaces Reynolds with a new defence of “publication on
matter of public interest.”39 While the explanatory notes state that the purpose of the
new defence is “essentially to codify the common law defence” in Reynolds, the
statutory defence is formulated in a very different way. Under the s.4 of the 2013 Act,
the defendant has to show that “the statement complained of was, or formed part of, a
statement on a matter of public interest” and that the defendant “reasonably believed
that publishing the statement complained of was in the public interest”. So unlike
Reynolds, there is no requirement of “responsible journalism” and the statute lists no
factors for the courts to take into account. However, professional standards are still
relevant when determining if the publisher had a reasonable belief that publication
was in the public interest. Section 4(3) has a special provision for reportage cases,
which arises where the publication carries (but does not endorse) the defamatory
statement as part of an accurate and impartial report about a dispute to which the
claimant was a party.40 In such reportage cases, the failure to take steps “to verify the
truth” of a defamatory statement is not relevant to whether the defendant’s belief was
reasonable. This provision therefore implies that steps to verify - an important aspect
of responsible journalism - can still be relevant to the reasonable belief of the
defendant in non-reportage cases.41 Similar factors to those in Reynolds are likely to
be relevant when interpreting the statute,42 particularly in light of the emphasis placed
on journalistic responsibilities in the ECHR jurisprudence discussed earlier.43
Showing that the standards of responsible journalism have been met might thereby
help a defendant establish the reasonableness of his belief that the matter was in the
public interest.
However, it is important to note that the reasonable belief standard does not expressly
incorporate professional journalistic standards. Furthermore, in applying the defence
the “court must have regard to all the circumstances of the case”. That clause seeks to
prevent the courts developing a “checklist” approach to the defence, in which each
aspect relevant to the reasonable belief test is treated as a separate hurdle to be
cleared.44 The provision allows the court to apply the defence flexibly. When looking
at an earlier version of the public interest defence when the Bill was going through
Parliament, a government minister stated that the flexible application stresses “the
need for the court to bear in mind the circumstances in which the publisher was
operating and the resources available to it: for example, the context of a national
newspaper is likely to be different from the context of a non-governmental
39
Section 4.
The term reportage is not used in the Defamation Act 2013, but was used to describe a similar
defence in the 2013 law. See for example, Al-Fagih v HH Saudi Research and Marketing (UK) Ltd
[2001] EWCA Civ 1634; [2002] E.M.L.R. 13.
41
Lord McNally told the House of Lords that the provision “sends an important signal that a defendant
may need to take steps to verify a statement when it is not a reportage case” but then added that this
does not mean that steps to verify will be required in every non-reportage case, emphasising the
flexibility of the defence. Hansard, HL Vol. 743 col. 200 (February 5, 2013).
42
Joint Committee on Human Rights. Legislative Scrutiny: Defamation Bill, Seventh Report of Session
2012-13. The Stationary Office, 2012. HL Paper No. 84/ HC Paper No. 810 (Session 2012/13) at [28].
43
See Gavin Phillipson, Memorandum to the Joint Committee on Human Rights at [7] and [32].
44
Lord McNally told the House of Lords that this provision is to prevent the courts simply developing
a new checklist and is to “send a signal to the courts and practitioners to make clear the wish of
Parliament that the new defence should be applied in as flexible a way as possible in light of the
circumstances”. Hansard, HL Vol. 743 col. 198 (5 Feb 2013).
40
10 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW organisation or a scientific journal.”45 Such considerations could apply when looking
at the “circumstances of the case” under the statutory definition and allow the court to
apply different standards for low level speakers.46
The new law therefore sends out mixed signals as to whether the reasonable belief test
will track the requirements of Reynolds or develop something new. If influenced by
the ECHR jurisprudence and the previous Reynolds cases, then there is danger that the
practices of the traditional media will continue to define these ideal standards. Such
an approach would take professional standards of care as the benchmark, rather than
developing new standards of conduct for different types of speaker. However, the
emphasis on flexibility might allow the courts to apply these standards less rigorously
in the case of small scale publishers, amateurs and other low level speakers, or even
develop new standards for such contexts.
When the new defence was debated in the House of Lords, further mixed signals were
sent out in relation to the social media. While the sponsor of the Bill emphasised the
need for flexibility, when asked whether a user Twitter would be expected to verify a
statement before sending a message, he responded:
“I would say to Twitterers the Twittering equivalent of ‘caveat emptor’:
‘Twitterer beware’. Twittering is not beyond the law. We somehow got the
idea that new media is a law-free area. People are going to find that it is
not.”47
While there is certainly no case for a social network being a “law-free” zone, the
difficult question is the extent to which those posting messages are expected to meet
the standards of the professional investigative journalist, or whether new standards
will be developed.
Collaborative production
The conditions for public interest defences can also impact on the way the audience’s
interest is served. The networked nature of digital communications allows for
knowledge to be produced collaboratively as part of an open process. There are
several ways that public interest content can be produced through large-scale
networked contributions. One well-known channel is for the mainstream media to
crowdsource certain research tasks.48 For example, an established media organisation
45
Jonathan Djanogly MP, House of Commons Public Bill Committee: Defamation Bill, 19 June 2012
col. 78.
46
Such a variable standard would be consistent with the approach taken in the tort of negligence. While
the objective standard of care in negligence famously does not make allowances for inexperience
(Nettleship v Weston [1971] 2 Q.B. 691), it allows for the standard of care to vary according to the
particular task being performed. Applying such an approach to the public interest defence in
defamation could thereby distinguish standards required in the task of professional journalism from
those required in other types of political talk. Similarly, the law of negligence can apply higher
standards to the actions of a professional, see for example Mustill LJ in Wilsher v Essex [1987] Q.B.
730 at 751. Along these lines, defamation law could apply higher standards to professional journalists
than to other types of political speaker.
47
Lord McNally, Hansard, HL Vol. 741 col. GC559, (19 December 2012).
48
See J. Howe, Crowdsourcing: How the Power of the Crowd is Driving the Future of Business
(London: Random House, 2008).
11 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW might provide raw data, which is too large for a single journalist to analyse, and ask
readers to examine it. The Guardian used this technique when it asked readers to
analyse a file containing details of MP’s expenses claims and to flag any possible
claims that were of interest. The same paper uses such techniques for a number of
issues. At the time of writing, the Guardian is asking its readers to help investigate
incident reports at Australian immigration detention centres, by submitting freedom of
information requests.49 In the past, it has also called on readers to examine a
government-released list of people that have turned down honours and identify who
those people are.50 In these examples, small tasks are divided among a large group of
people, which is then aggregated by the newspaper to produce valuable information.
Importantly, in such examples, the crowd works through an intermediary, the
newspaper, which manages the project.51 If any of the readers’ responses are
defamatory, the newspaper has a chance to moderate, verify and seek comment, and is
therefore more likely to fulfill any conduct-based conditions for the public interest
defence.
Collaborative forms of news production can take place more openly without a
moderator. For example, this can happen where a mass of information obtained
through a freedom of information request or a leaked document is made publicly
accessible, and various members of a network look at different parts of the data and
publish their own analysis openly on various digital forums. That analysis can then be
checked and commented on by other members of the network. In his 2006 book, the
Wealth of Networks, Yochai Benkler provides an example in which flaws in electronic
voting machines were revealed after an activist made tens of thousands of files from
the machine manufacturer available via a website. The publication of the raw data and
the activists’ comments were used to “start a conversation”, in which other internet
users “of many different types and abilities” analysed the materials and made
comments of their own.52 Micah Sifry has written that networks can perform a
watchdog role in real time, and gives a hypothetical example in which a person visits
their legislator at his office.53 At the office, the visitor witnesses the legislator
“backslapping” a lobbyist, and videos the exchange. After uploading the video to the
web and publicising it through Twitter, Sifry writes that “other bloggers are soon
hearing about the video and beginning the important next step of digging into the
lobbyist’s connections with the Congressman, from campaign contributions to social
relationships, and figuring out their significance.”54 The important point is that the
details are not published after painstaking research, but the research is conducted
transparently among a number of dispersed actors and published in real-time. In the
UK, Andrew Chadwick’s study of the “Bullygate” affair showed how messages
openly posted on Twitter and blogs by “non-elite actors” helped to influence the
49
“Detention Logs: how you can help”
http://www.guardian.co.uk/commentisfree/2013/jun/11/detention-logs-open-journalism (last accessed 6
August 2013).
50
“Refused honours: who were the people who said no? (And help us find out)”
http://www.guardian.co.uk/news/datablog/2012/jan/26/refused-honours-listdownload?INTCMP=SRCH (last accessed 6 August 2013).
51
See D. Brabha, Crowdsouring (Cambridge, Mass.: MIT Press, 2013) pp.6-8, emphasising top-down
management as a feature distinguishing crowdsourcing from other types of collaboration.
52
Y. Benkler, The Wealth of Networks (New Haven: Yale University Press, 2006) p.232.
53
M. Sifry, Wikileaks and the Age of Transparency (New Haven: Yale University Press, 2011) p.133.
54
Sifry, Wikileaks and the Age of Transparency, 2011, p.133.
12 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW direction of media coverage by challenging the credibility of a named source.55
Again, in this example, the newsgathering process partly took place in open in realtime, through online messages and links to resources available on the internet.
A more basic example highlights the key differences with traditional mass media
processes. Imagine one person posts a message on a forum or on Twitter asking
people to help analyse a list of people that have donated to political parties in recent
years, and say what is known about that person. People then post responses and
comment on the responses of others, allowing for these posts to be aggregated on a
website. On the website, it might allow users to rate the reliability of those posting
comments and flag posts where there is an alleged inaccuracy. In this example,
imagine that Person A thinks he recognises the name of a man that donated money to
the political party in power and honestly (but inaccurately) claims that person
benefitted from a government contract. Person B then flags that comment and posts a
correction to the earlier statement, explaining that this is a case of mistaken identity
and that the government contract was awarded to a man of a similar name. The
process of correction and ratings allows the truth of the matter to be quickly
established. This example paints a picture of an idealised process. It is used here to
illustrate that the research and verification that traditionally took place prior to
publication, can now take place in open. Unlike traditional journalism, in which the
finished product is produced to be consumed by its audience, the network-produced
journalism begins by making the data and “raw materials” available for comment and
analysis.56
Summarising such informal processes, Don Tapscott and Anthony D. Williams, in
their 2010 book Macrowikinomics, write:
“When something important happens it gets blogged, tweeted, Digged,
YouTubed, and otherwise reported, scrutinized, authenticated, analyzed,
discussed, and then re-reported with a momentum typically relative to its
newsworthiness.”57
Notice the sequence suggested in this sentence. Someone first puts a report out, then it
is subject to further research, and only then after being affirmed by others in the
network does it rise up higher in the public agenda. In such an open process in which
contributions are revised, the line between what is of high and low value may be
harder to draw.
The law of defamation has the potential to stifle such a process. The danger is that in
such circumstances, Person A in the example above might be open to a libel action, in
so far as he has incorrectly implied any impropriety on the part of the donor. A
requirement that the user acts as a responsible journalists goes against the ethos of this
process as the speaker’s contribution is supposed to form part of the investigatory
process itself, rather than give a definitive conclusion. To require verification and
comment in such circumstances is not problematic solely because such activities are
conducted by amateurs, but also because such pre-publication steps run counter to the
whole open model for producing information. Whether the Defamation Act 2013 can
accommodate such open methods of investigation depends on how the reasonable
55
A. Chadwick, The Hybrid Media System (Oxford: Oxford University Press, 2013) pp.65-74.
Benkler, The Wealth of Networks, 2006, discusses the differences in generating content in the mass
media and in “networked public sphere”, pp.225-232.
57
D. Tapscott and A.D. Williams. Macrowikinomics (London: Atlantic Books, 2010) p.210.
56
13 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW belief test is applied in practice, and whether the court relies on professional standards
of journalism to evaluate all speakers.
If an approach based on professional standards, as found in Reynolds, is maintained
under the Defamation Act 2013, then online collaborations are most likely to be
protected where there is an intermediary taking overall responsibility for an article or
project that can at least undertake some process of verification before publishing a
claim. For example, when individuals send their contributions to a newspaper, that
paper can apply professional standards prior to publication. Even this model poses
some challenges to the traditional media, as when working under time pressure, there
can be difficulties in verifying the reliability of a source found on social media.58
Working through a traditional media/higher level intermediary would slow down the
process and may withhold some valuable information, but it would arguably provide a
safeguard for reputation. Maintaining an approach similar to Reynolds would steer
people to channel their information through the professional mass media. There are
already a number of strategic reasons, such as access to a mass audience, which
encourages people to work with the traditional media. A set of standards similar to
Reynolds would give people a further incentive to collaborate with the mass media.
An alternative approach would be to move away from a reasonableness standard and
provide a blanket defence for good faith political speech or criticism of public figures.
While this would give greater protection to the transparent process, it might also give
carte blanche for digital speakers to harm a person’s reputation without any form of
accountability. The danger of harm to reputation is very real given that there are good
reasons to assume that the open process will not work in the ideal way described
above. In some cases, there may be no users that correct the inaccurate statement.
Even if there is, users may not know which of the views advanced is correct and in
some cases may end up preferring an initial inaccurate statement over a later
correction. The wrong answer may be perpetuated rather than corrected through the
network. Furthermore, not every person in the network will necessarily act to promote
the correct answer, as some participants might have vested interests. The findings that
get amplified by others in the network or eventually picked up by the mass media may
owe more to the biases of certain actors, than to a well-functioning self-correcting
process. The model outlined above is an ideal, rather than a description of its current
workings.
The problem is not just that the open process may sometimes produce inaccurate
conclusions. The questions and hypotheses advanced in the course of the open
investigation may be damaging, even if later corrected. The hazards of online
speculation and amplification of suspicions were illustrated in the case of Lord
McAlpine, in which numerous users of Twitter wrongly linked the peer with a story
broadcast on Newsnight about sexual abuse at a children’s home. Soon after the
allegations were made, it was revealed in the press that the wrong person had been
implicated and the relevant media entities apologised.59 While the retractions and
apologies illustrate the ability of the media to correct itself, the episode also provides
a reminder of the harm to reputation that can occur. The peer went on to pursue and
58
For discussion see N. Bruno, “Tweet First, Verify Later? How real-time information is changing the
coverage of worldwide crisis events” (2011) Reuters Institute for the Study of Journalism Fellowship
Paper.
59
“‘Mistaken identity' led to top Tory abuse claim” The Guardian, 9 November 2012.
14 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW settle a number of defamation actions,60 and won a court ruling that a “tweet” posted
by Sally Bercow was defamatory.61 While there are dangers in the law hindering an
ideal self-correcting process, the blanket protection for good faith political speech
would be open to abuse. In any event, a blanket protection for speech about public
figures could result in a breach of Article 8 of the ECHR and has already been
rejected by the UK Parliament.
So far the two options considered have been a blanket defence for political speech or
a defence conditional on meeting professional standards. An intermediate position
would be to reformulate standards of responsibility that are more appropriate for the
low level speaker. Such an approach would strike a new balance between free speech
and reputation, to reflect the different types of speaker. The difficulty lies in
identifying what standards of conduct and other conditions for a public interest
defence are appropriate. Each of the options canvassed so far bring their own costs,
but highlights how the legal framework can influence the method of investigation that
can be pursued in the networked world.
So far the open model of research has been considered in relation to low level
speakers. The various levels of speaker do operate in isolation. Professional and
amateur engage with and influence one another. It may be the case that the standards
of the professional media are themselves changing to adapt to the new environment,
in which its publications are also regarded as works in progress (and subject to
subsequent correction), rather than finished authoritative products.62 Even if this is the
case, higher standards of research and verification are still to be expected of the
professional media prior to an initial publication. Where a large well-resourced
institution publishes material, there will still be an internal pre-publication stage of
research and it is more capable of meeting standards of responsibility. The truly open
process may be more fundamental in the case of low level speakers, which lack this
internal research capacity.
Misuse of Private Information
In misuse of private information, political expression is protected at the balancing
stage – once the privacy right has been engaged, the court then balances that right
with freedom of expression.63 Here, the court looks at whether publication serves the
public interest. The term public interest is deceptively simple and courts can consider
a number of factors under this heading. These factors include whether the publication
contributes to a discussion on a matter of general interest, focuses on a public figure
or role model, reveals some wrongdoing or corrects a misleading statement made by
the claimant. Furthermore, the court will give more weight to the privacy right when
the information has been widely disseminated.64 In practice, this might give those low
level speakers that disseminate information to a smaller audience a better chance of
outweighing the privacy right.
60
The Independent, 12 March 2013.
McAlpine v Bercow [2013] EWHC 1342 (QB).
62
M. Schudson, The Sociology of News, 2nd edn (London: Norton, 2011) p.211.
63
See McKennitt v Ash [2006] EWCA Civ 1714; [2008] Q.B. 73 at [11].
64
Von Hannover v Germany (No. 2) (40660/08) (2012) 32 B.H.R.C. 527 at [112].
61
15 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW The defence can, however, pose a number of challenges. First, it can be difficult to
anticipate when the public interest outweighs a right to keep the information private.
For example, it is unclear what types of person fall into the category of a public figure
or role model that will have weaker privacy rights.65 It is not clear when a comment
on a person’s sex life will be an unwarranted criticism into private life, or an
acceptable way to illustrate a criticism of a person’s behaviour.66 A court might
decide that the information has no public interest value, even though the publishers
thought that it did at the time of publication. Even with legal advice, a large media
company will have difficulties anticipating the answers to these questions.
In the face of such uncertainty, those lacking legal resources might err on the side
caution, raising the danger of the chilling effect. Of course, the point should not be
overstated. Any defence that applies to expression deemed to be in the public interest
will have some uncertain boundaries. Such issues are common in many areas of law,
and it is inevitable if the law is to be flexible and context sensitive. Some of the
difficulties can be avoided if the case law builds up some easily understood
principles, allowing speakers to develop certain rules of thumb. Furthermore, the
courts can also give a defendant the benefit of the doubt and allow for a generous
interpretation of the public interest. In Ferdinand, Nicol J stated that “the court's
objective assessment of whether there is a public interest in the publication must
acknowledge that in a plural society there will be a range of views as to what matters
or is of significance …”.67 Such an approach brings the test closer to asking whether
the defendant had a reasonable belief that publication was in the public interest.68
In other cases the publisher’s error might not lie in assessing the boundaries of the
public interest, but in deciding whether the particular facts disclosed fall within that
boundary. For example, a person might disclose true information on the assumption
that it is in the public interest to set the record straight when a public figure made a
misleading statement. However, the discloser’s belief that the public figure ever made
such a misleading statement may be mistaken. In this example, the error lies not in the
understanding of the public interest, but in the background facts of the case that are
thought to raise the public interest issue. This type of issue arose in Mosley, where the
newspaper argued that a responsible journalism defence should be available in such
circumstances. The newspaper claimed that it acted responsibly in publishing details
about Max Mosley’s sado-masochistic activities because it believed the activities had
a Nazi theme. The court accepted that if there had been a Nazi theme then there might
have been a public interest in disclosing the information.69 However, the court found
that Mosley’s activities had no such theme and the newspaper’s belief was erroneous.
The newspaper then argued that its expression should be protected as it acted on a
rational basis for coming to this conclusion, as one of the women wore a jacket that
“corresponded to the modern Luftwaffe uniform” and spoke German. The court
65
Compare McKennitt v Ash [2006] EWCA Civ 1714; [2008] Q.B. 73 with Ferdinand v MGN [2011]
EWHC 2454 (QB) at [90].
66
Compare Mosley v News Group Newspapers [2008] EWHC 1777 (QB); [2008] E.M.L.R. 20 at [125]
with Terry (formerly LNS) v Persons Unknown [2010] EWHC 119 (QB); [2010] E.M.L.R. 16 at [104].
67
Ferdinand v MGN [2011] EWHC 2454 (QB) at [64].
68
In Terry, the court also suggested that the publisher’s ‘reasonable belief’ that a disclosure was in the
public interest might be relevant in a privacy case. Terry (formerly LNS) v Persons Unknown [2010]
EWHC 119 (QB); [2010] E.M.L.R. 16 at at [70-73], relying on an analogy with the reasonable belief
requirement under s.32 of the Data Protection Act 1998.
69
Mosley [2008] EWHC 1777 (QB) at [122].
16 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW rejected this argument, finding the evidence provided no basis for assuming a Nazi
theme.70 However, the court left open whether a “responsible journalism” type
defence might become available in later cases.71
A responsible journalism or reasonable belief test in deciding whether the public
interest has been fulfilled would liberalise the defence, but would raise similar issues
as those discussed in relation to defamation. The central issue is whether the norms
and processes of the professional mass media will define what is “responsible” or
when a belief is “reasonable”, or whether the criteria will be developed in a way fits
with the practices of low level speakers.
A final issue with the public interest test is more fundamental and concerns the
process through which digital networks produce information. An item is more likely
to be in the public interest if it forms part of publication that places the information in
its context and sets out those public interest issues. This much can normally be
expected of a publication that follows the norms of professional journalism. However,
in some cases, it may not be immediately clear why a low level publication is in the
public interest or not. Imagine someone posts a photograph of a minister on a
romantic dinner or in intimate embrace on a secluded beach. At first sight, this sounds
like an arguably intrusive and unnecessary publication. Once it is posted, another user
recognises the minister’s date as a lobbyist for an industry that the minister has
responsibility for. The minister has not disclosed this connection. The picture then
takes on a different significance and arguably has a public interest dimension.72 The
first photo, taken in isolation, appears to have no public interest value. Furthermore, if
subject to an application for an interim injunction, the photographer will not have the
knowledge to put the public interest arguments before the court. Only after the second
user’s comment is published does the public interest dimension become apparent. As
with the earlier discussion of defamation law, this example reflects a process in which
research is done collaboratively, transparently and in real-time.
The point is that when we assess whether a publication is in the public interest, we
judge it by the standards expected for finished products. The value of low level
speech may not always lie in a single contribution, but in the aggregate of multiple
contributions that undergo a process of ongoing refinement. In the low level context,
the line between high and low value contributions is therefore less sharp. There are, of
course, obvious difficulties in attempting to modify the privacy laws to accommodate
such open processes. In the scenario given earlier, the person posting the original
photo did not know that it would take on this public interest dimension. To protect
disclosures in such circumstances would provide a licence for people to disclose any
information on the (no doubt often spurious) grounds that someone else might
discover why its publication is in the public interest. A process of deciding whether an
item of private information is in the public interest or not cannot be determined in full
public view, otherwise it would prejudge the matter.73 Once it has been discussed in
open, the privacy interest would have suffered the damage whether a public interest is
present or not.
70
Mosley [2008] EWHC 1777 (QB) at [170]
Mosley [2008] EWHC 1777 (QB) at [143].
72
Lord Hoffmann in Campbell [2004] UKHL 22 at [60].
73
Benkler, “A Free and Irresponsible Press” (2011) 46 Harv. C.R.-C.L. L. Rev. 311, 394-5.
71
17 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW An approach that is more likely to be protected under the current law is for low level
speakers not to publish to the world immediately, but to either collaborate in a private
network or via an intermediary (whether the mass media or a new website). That
allows all the relevant information to be collated in private and for a decision to then
be taken whether publication serves the public interest. Along these lines, Wikileaks
collaborated with traditional media outlets in 2010 to decide which of the embassy
cables should be published and which should remain confidential.74 The vast amount
of material meant that Wikileaks needed the professional media’s assistance in
deciding what to release, and the sensitive nature of the material meant it was not
appropriate to openly delegate that task to a crowd of online volunteers.75 That
collaboration, however, was by no means smooth, with reports of a clash of cultures,
for example in relation to editorial practices, between the traditional media and
Wikileaks.76 This approach also brings a cost in so far as it gives the decentralised and
open processes associated with networked amateurs a limited role in producing
knowledge where privacy rights are at stake. However, it is difficult to see any
alternative that can offer adequate protection to Article 8 rights.
Editorial discretion
The courts in both privacy and defamation law have expressed the need for some
allowance for editorial discretion when applying public interest defences.77 Similarly,
the Strasbourg Court has warned that courts should not dictate how newspaper articles
must be presented.78 In the domestic court, such leeway is often emphasised when
considering whether the level of detail included in an article and the presentation of
the story were justified by the public interest considerations. For example, in
Campbell v MGN the House of Lords held that the public had an interest in knowing
the fact that a model was undergoing treatment for drug addiction, but did not need to
see photographs of her leaving the treatment centre.79 There is, however, no obvious
line to indicate in advance what matters the law will permit to be included in a story
and this issue can be a legal hazard to publishers. To avoid these problems, the courts
grant weight to the judgment of the publisher in deciding which side of the line an
item of information falls on. As Ward LJ explained in Charman, “[w]here opinions
may reasonably differ over the details which are needed to convey the general
message, then deference has to be paid to the editorial decisions of the author,
journalist or editor.”80
The courts have offered slightly different arguments for granting editorial latitude.
Some statements of the court suggest it is out of respect for the expert professional
judgment of the newspaper editor. Lord Rodger in Guardian News and Media
suggested such an approach when he stated “editors know best how to present
74
Benkler, “A Free and Irresponsible Press” (2011) 46 Harv. C.R.-C.L. L. Rev. 311, 394-5.
C. Beckett and J. Ball, Wikileaks: News in the Networked Era (Cambridge: Polity, 2012), p.50-53.
76
S. Ellison, “The Man Who Spilled the Secrets” Vanity Fair, February 2011.
77
Campbell [2004] UKHL 22, Lord Hoffmann (dissenting on this point) at [62] and [77]. Lord Hope
accepted that there is some latitude for editorial discretion at [112], but found on the facts of the case
that it had been overstepped. See also Trimingham v Associated Newspapers [2012] EWHC 1296
(QB); [2012] 4 All E.R. 717 at [81-85].
78
Jersild v Denmark (A/298) (1995) 19 E.H.R.R. 1 at [31].
79
Campbell [2004] UKHL 22.
80 Charman v Orion [2007] EWCA Civ 972; [2008] 1 All E.R. 750 at [75].
75
18 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW material in a way that will interest the readers of their particular publication and so
help them to absorb the information”.81 If the emphasis is on professional experience
and expertise,82 then it might suggest less leeway should be granted to those low level
bloggers or speakers that are unlikely to have had that experience in breaking
important stories. However, the reference to “editorial judgment” might be taken
more broadly to mean that the court should not impose standards strictly with the
benefit of hindsight. Here editorial discretion is respected in order to give publishers
breathing space. Supporting such a reading, Lord Hoffmann stated in Campbell that
“[e]ditorial decisions have to be made quickly and with less information than is
available to a court which afterwards reviews the matter at leisure”.83 Such
considerations might apply with greater force to a low level speaker who acts
spontaneously and with little expectation of a large audience. If this reading is taken,
then a wider margin of discretion might be applied to low level speakers when
deciding what level of detail is relevant.
The public interest defence in the Defamation Act 2013 requires that the court make
“allowance for editorial judgement as it considers appropriate”. According to the
statute, such leeway can be granted on the question of whether there was a reasonable
belief in a public interest for publication, and is not limited to the question of whether
certain details should have been included.84 Lord McNally told the House of Lords
Grand Committee on the Defamation Bill that the provision “is not limited to editors
or newspapers” and is about allowing the court to recognise that there may “be
legitimately different views” about the way a story should be presented and its tone. 85
This makes it clear that the clause is not restricted to the press as an institution, and
therefore could be relied upon by other speakers. However, earlier in the same debate,
Lord McNally admitted that the provision “is likely to be most relevant in journalism
cases”.86 Ultimately, the provision is flexible and cast in terms “that leaves it open to
the court to develop as necessary”.87 It therefore seems likely that the approach taken
in the common law is most likely to be continued.88 Further elaboration of the
rationale for such discretion could, as discussed earlier, determine the approach to be
taken for amateur low level speakers.
81
Guardian News and Media Ltd, Re HM Treasury v Ahmed [2010] UKSC 1; [2010] 2 A.C. 697.
Charman v Orion [2007] EWCA Civ 972; [2008] 1 All E.R. 750 at [75] refers to the need for weight
to be given to a journalist’s “honesty, his expertise in the subject, his careful research, and his
painstaking evaluation of a mass of material”.
83
Campbell [2004] UKHL 22 at [62]. Similarly in Jameel [2006] UKHL 44 Lord Hoffmann, at [51]
warns of judges imposing their views on the level of necessary detail “with the advantage of leisure
and hindsight”.
84
Compare with Lord Hoffmann in Jameel [2006] UKHL 44 at [51], stating that “the question of
whether the story as a whole was a matter of public interest must be decided by the judge without
regard to what the editor's view may have been”, but respect is given to editorial judgment on the
question of whether it was relevant to include the defamatory statement in the article.
85
Lord McNally, Hansard HL Vol 741 col GC558, (19 December 2012).
86
Lord McNally, Hansard HL Vol. 741 col. GC535 (December 19, 2012).
87 Lord McNally, Hansard HL Vol. 741 col. GC558 (December 19, 2012). 88
The clause was inserted into the Bill in the light of comments made by Lord Mance in Flood [2012]
UKSC 11 about the importance of editorial discretion.
82
19 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW Conclusion
The primacy of political speech is well established under Article 10, but it has tended
to be justified by its value to the audience. The centrality of that justification is a
legacy from the era in which the high level one-to-many speaker was the main
paradigm in free speech cases. As a result, a sharp distinction is often drawn between
high value and low value speech, given the potential for the mass media to amplify
the benefits of the former and the harms of the latter. While this approach remains
important, it only accounts for one part of the communicative environment. Digital
expression includes the full range of speech, whether offensive, earnest, trivial,
political, humorous or serious. That speech is played out on the full range of levels,
from the high to the low. Freedom of expression requires that low level speakers be
able to engage in political speech.
The discussion has highlighted the danger of public interest defences operating in
favour of the high level speaker. Such speakers are more likely to have the resources,
expertise and experience to fulfill the requirements that were previously required in
defamation law. Standards developed for the mass media are not always appropriate
for the low level speaker. It remains to be seen how the reasonable belief test under
the Defamation Act 2013 will be applied. While the defence in privacy seems less
problematic, similar questions are likely to arise if the public interest requirement
becomes subject to a reasonable belief or responsible journalism test in some cases. If
the standards of the professional media are the benchmark in deciding whether a
belief is reasonable, then there is a danger that the low level political speaker will be
chilled by the threat of heavy penalties and costs in civil actions.
The flexible application of these standards, requiring less of the low level speaker
than the professional, might avoid these problems. These variables standards can,
however, raise problems of their own. For example, once a blogger has put
information in the public domain, the mass media will claim a stronger justification
for reporting it (for example, arguing, that the information is no longer private).89
There clearly comes a point when the media should be free to discuss what is being
said elsewhere, but there is a danger of such channels being abused. Sir David Eady
sought to resist this trend in CTB, when he maintained a privacy injunction even
though the protected information had been widely disseminated on the internet.90
Disclosure online did not, Eady J said, give a green light to publication in the mass
media because “wall-to-wall excoriation in national newspapers, whether tabloid or
‘broadsheet’, is likely to be significantly more intrusive and distressing for those
concerned than the availability of information on the Internet or in foreign journals to
those, however many, who take the trouble to look it up.” 91 However, a further
objection to variable standards is that the mass media are being placed at a
competitive disadvantage, allowing the new media to attract an audience with less
reliable (but salacious) stories. The two types of media are not directly comparable, as
the professional media claim to have an authoritative voice and to perform a quasi 89
See Lord Goff on the pubic domain in Attorney-General v Guardian Newspapers (No 2) [1990] 1
A.C. 109.
90
CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB) at [24].
91
However, compare the view expressed in Editorial Board of Pravoye Delo and Shtekel v Ukraine
(33014/05), May 5, 2011 at [63], cited at n 5 above.
20 DRAFT – FINAL VERSION TO APPEAR IN PUBLIC LAW constitutional function.92 Just as the standards for the low level speaker should not be
set by the professional, the standards for the professional journalist should not be set
by the lowest common denominator among all types of speaker.
The defences discussed reflect an audience-centred justification for free speech, rather
than a view of political speech as a form of participation. This may reflect a view that
rights to reputation and privacy more easily outweigh participatory goals, while the
same may not be true of the social value of the speech. While such a balance might be
defensible, there is no evidence that it has been considered in UK law. Even if an
audience-centered justification remains dominant, the existing public interest defences
may fail to keep pace with the new ways low level speakers can produce knowledge
as part of an open-networked process. This, however, creates fresh challenges. In such
processes, it can be difficult to determine whether expression is valuable in advance
of the first publication. The true value may become clear after or as part of further
discussion and refinement. The distinction between public interest and non-public
interest expression is therefore less sharp in the low level networked world. This
raises the question of whether the lines between high and low value speech can still be
drawn or remain appropriate in the low level context. If it is harder to separate high
and low value content at the low level, it is even more important to ensure that all low
level speech (of high and low value) be given some basic protection.93
Finally, the discussion shows how the law can potentially influence the methods used
by digital speakers to participate and produce political information. If public interest
defences are conditional on the speaker meeting professional journalistic standards,
then the contribution of the individual will be safest when routed through a
professional media body that can undertake all the necessary processes. Along these
lines, an individual suspecting some corrupt practices by an official will be in a
stronger position if he tips off a newspaper that is better placed to undertake a
verification process, as opposed to publishing the allegation directly on the internet.
This legal pressure would, however, limit the potential for a transparent networked
investigatory process to function. That legal structure might also help perpetuate the
power and influence of the mass media. By contrast, a blanket defence for political
speech would permit an open process and maximise participation, but would also
allow harmful messages to go unchecked and falsities to be perpetuated. The
alternative to either of the above options may be to work out those conditions and
responsibilities that are more appropriate for the non-professional low level speaker.
Such an approach would require a fresh balance to be struck between freedom of
expression and the responsibility not to harm certain competing rights and interests
under Article 10. This new balance would require us to ask what harms should be
tolerated and what, if any, responsibilities the low level speaker can be expected to
fulfill. This is a challenge, but would allow the Article 10 jurisprudence to step out of
the shadow of the big media and ensure that all speakers regardless of status, wealth
and profession enjoy the protection for political speech in practice as well as in
principle.
92
93
See R. Wacks, Privacy and Media Freedom (Oxford: Oxford University Press, 2013) p.47.
See Rowbottom, “To rant, vent and converse” (2012) 71 C.L.J. 355.
21