Defamation, free speech and the criminal law – Lexology

Introduction

On 12 January 2010, the Coroners and Justice Act 2009 (the Act) came into force and, with it, the end of the offences of seditious libel, defamatory libel and obscene libel in England and Wales. Writers, publishers and free-speech advocates celebrated the Act as an historic victory and reminded naysayers that criminal libel had long been used by the state as a cudgel against satirists, incendiaries, malcontents and revolutionaries alike.[1]

Criminal libel is the collective term for a range of offences, all of which relate to the publication of defamatory material in permanent form (as opposed to spoken words or gestures). While criminal libel fell out of use during the 20th century, it continued to exist under the laws of England and Wales and, according to some, this helped legitimise its more active use in overseas jurisdictions.

For repressive governments, criminal-defamation laws have been deployed to silence critics and commentators the threat of imprisonment and a criminal record has a chilling effect on press activity and can deter or inhibit investigative journalists. Having well-publicised criminal-defamation laws can keep opponents quiet, as opposed to more overt methods, such as detaining them or using violence.

The manner in which criminal libel can be used by undemocratic regimes was part of the rationale for section 73 of the Act, which abolished criminal libel laws in England and Wales. Based on the sweeping impact of this section, the government clearly subscribed to the view that this kind of offence has no place in a vibrant democracy. In the words of former Parliamentary under Secretary of State for Justice, Claire Ward:

Sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasnt seen as the right it is today The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.[2]

However, the world is a different place than it was ten years ago. Today, anyone can set up a website, purport to report on the news and carry out character assassinations online (all while remaining relatively anonymous). Arguably, new checks and balances are needed on free speech. The Online Safety Bill (the Bill) (currently in draft-form) is the governments answer to the wild-west online. With this Bill, the government is seeking to address the fact that misinformation and harmful content is now rife online.

Perhaps most notably, the Law Commission has suggested incorporating new criminal offences into the Bill. These include the offences of sending knowingly false communications and making hoax calls to the emergency services.[3] The introduction of these new harm-based communications offences, which regulate what people can and cannot say, has aggrieved the same advocates who applauded the Coroners and Justice Act in 2009.[4] According to one organisation, the Bill poses a greater threat to freedom of speech in the UK than any other law in living memory.[5] Strong divergent views on this topic raise various questions should the criminal law be used to regulate freedom of expression? Do criminal defamation laws have a place in todays ultra-connected world, where misinformation is spread with such ease?

The right to free speech

It is widely recognised that defamation and misinformation laws are necessary to protect our society and the people within it. Just as physically attacking someone carries legal consequences, so too should spreading harmful lies about them. However, such laws (whether civil or criminal in nature) do infringe the right to freedom of expression, one of our fundamental human rights, as outlined in Article 10 of the European Convention on Human Rights (the ECHR). This right is framed in the following terms:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

In the 1976 Strasbourg case Handyside v United Kingdom, the European Court of Human Rights provided guidance on the scope of Article 10, confirming that it protects the right to say things that offend, shock or disturb the State or any sector of the population.[6] With that said, the right to freedom of expression is not absolute. The legislation itself states that interference with this right may sometimes be appropriate. Article 10(2) of the ECHR states that interference may be justified in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[7]

A negotiation of the right to free speech is always ongoing and its parameters depend (to an extent) on the zeitgeist and what society is prepared to accept. For example, in the recent Duchess of Sussex case, Associated Newspapers Limited (ANL) argued that Lord Justice Warby had given inadequate weight to the newspapers Article 10 rights and Thomas Markles right to reply. According to ANL, publishing large portions of the Duchesss letter was necessary to correct inaccuracies about the letter that were published in a People magazine article.

However, in its judgment on 2 December 2021, the Court of Appeal held that the disclosures were manifestly excessive.[8] According to the Court of Appeal, the true purpose of ANLs articles was to reveal to the world the full content of a sensational letter written by the Duchess to her estranged father shortly after her wedding. The core of this judgment was that ANLs right to freedom of expression could legitimately be infringed in order to protect the Duchess of Sussexs right to privacy.

Criminal libel

As the right to free speech is not absolute, a natural question is whether it ought to be regulated by the criminal law. In exploring this point, its instructive to look at countries where defamation is still treated as a criminal matter. When defamation falls within the remit of the criminal law, governments can (and do) go beyond fining people for what they say some countries imprison citizens for it.[9]

For example, Thailand has one of the worlds strictest defamation regimes, which insulates its monarchy from criticism. Under section 112 of the Thai Criminal Code, the so-called royal defamation law, criticising certain members of the royal family can result in a prison sentence of 15 years.[10] The legislation reads as follows:

Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.

Bucking the trend of many other countries, this royal defamation law has been enforced strictly in recent years. In 2017, a Bangkok military court sentenced a man to 35 years imprisonment for sharing Facebook posts that were deemed to deride the royal family.[11] Over the course of 2020, pro-democracy rallies escalated in Thailand, leading to the arrest and charging of over 150 Thai citizens under section 112. Section 112 was a focal point for Thai protestors, who argued that abolishing this offence does not equate to overthrowing their much-revered monarchy. [12]

Criminal defamation laws can also be deployed by private entities to powerful effect. In 2008, an Indonesian woman emailed several friends telling them that a hospital had misdiagnosed her with dengue fever when she actually had the mumps. Her friends posted this complaint to Facebook and, following further circulation on social media, the hospital filed a defamation claim against her. This case made it to the Indonesia Supreme Court, at which stage the defendant was convicted of libel under the Electronic Information and Transactions Law. While the defendant received a six-month suspended prison sentence, the law allows for jail time of up to six years for this offence.[13]

Conclusions that may be drawn from these sorts of cases are that (1) defamation laws should be narrowly drawn (2) defamation should only give rise to a civil cause of action and (3) criminalising libel is perhaps a step too far. Freedom of speech is widely seen as a vital safeguard against tyranny as it creates space for citizens to criticize their government, state bodies and political parties. The importance of free speech to governmental oversight is reflected in the fact that, in England and Wales, governmental bodies cannot bring a defamation claim. This rule was confirmed in a 1992 case, Derbyshire CC v Times Newspapers Ltd the House of Lords held that the ability of citizens to critique their government without fear of reprisal is essential to democracy.[14]

Conclusion

With the aforementioned Bill, we can see UK legislators attempting to strike a balance between protecting free speech and making the internet a truly safe place. While some see further regulation of online content as long overdue, others see introducing criminal offences that regulate the transmission of ideas as a step too far.

A recent parliamentary report (published by a committee on 14 December 2021) argued that certain definitions within the Bill would benefit from more precise wording. The report expressed concerns about the definition of harmful content and a person of ordinary sensibilities.[15] The report quoted the analysis of journalist Matthew dAncona, who spoke at a parliamentary committee meeting. Mr dAncona said as follows:

I think that with words like harm and safety there is a slippage or a kind of semantic mission creep going on in their use. We used to talk about safety, and what we really meant was physical safety. Now, when people talk about safety, they often mean convenience or comfort. It is not the task of democratic legislators to make people feel comfortable. I think that is stretching the job description.[16]

For better or worse, defamation and the right to transmit ideas remain dynamic areas of the law. For example, in November 2018 the Maldives Parliament passed a Bill to repeal the Anti-Defamation and Freedom of Expression Act 2016, which had re-criminalised defamation.[17] The oscillation in Maldives legislation and the ongoing debate around the UKs Online Safety Bill illustrates a key point that the right to free speech and how it should be regulated will likely continue to be fought over.

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Defamation, free speech and the criminal law - Lexology