Watch what you say, Human Rights Act is no knight

Political Libels
July 6, 2001

Libel is more often talked about by journalists than it is by either teachers of law or their students. Libel is a tort, but tort lawyers focus more on negligence and nuisance: not everything topical finds its way into the legal syllabus. Libel, and especially political libel, raises concerns for public lawyers, but they rarely find time these days to talk about much beyond constitutional reform, judicial review and human rights.

Over a series of publications, Ian Loveland has developed a particular take on a variety of aspects of public law. Always comparative by instinct, his work approaches problems of constitutional law with at least one eye (usually the rosy one) gazing enviously across the Atlantic. Long fascinated by the unique contribution of the United States to ideas of constitutional jurisprudence, Loveland continues in this vein.

The central argument of Political Libels is that English law fails to adequately protect defendants' (usually newspapers') legitimate interests when they are sued by politicians and others in public life over things that public figures consider to be defamatory. US law, shaped by the Supreme Court in the famous Sullivan vs The New York Times decision in 1964, does a better job, in Loveland's analysis, of recognising the importance in a democracy of being able to criticise in print and in public what those in positions of political power do, say, think, or otherwise mislead us about.

Loveland tells his story in broadly chronological terms, starting in the early 19th century and proceeding through not only English and US, but also recent Australian and New Zealand developments - and he reaches the turn of the millennium inside 150 pages.

We are carried along, High Court judgment by Appeal Court ruling, seamlessly transferring our attention from this to that common law jurisdiction, as English, and then Australian and New Zealand courts are variously criticised for taking their own lines on issues of political libel, instead of following the example set in Washington.

While statute has made a small contribution to the English law of libel (most recently, and most notoriously, with the passage of the Defamation Act 1996, an amendment to which facilitated the former MP Neil Hamilton in bringing his unsuccessful action against The Guardian ), this is an area of law that is based principally on common law, the law authored by the judges, not by Parliament.

As with any other area of law that touches on freedom of speech, however, Parliament recently enacted a statute that one might have thought would radically alter the common law of libel. I refer, of course, to the Human Rights Act 1998 - the act, now fully in force, that "incorporated", as the lawyers like to put it, the bulk of the European Convention on Human Rights into domestic UK law.

What difference to political libel will this revered convention, and this much celebrated act, make? Will defendant newspapers find it any easier to argue that their allegedly defamatory comments are justified? Loveland does not expressly address himself to this question. He does discuss numerous decisions of the European Commission and Court of Human Rights, but he does not relate his discussion of political libel to the changing face of the UK's constitution.

The question can, however, be answered from the European case-law that Loveland has surveyed. And the answer this evidence strongly suggests is that the Human Rights Act will make very little difference. The judges of the European Court of Human Rights, it seems, have been as slow to jump to the protection of speech that is deemed by a politician to be libellous as the English courts have traditionally been. There is no Strasbourg equivalent of Sullivan . This will be a refrain, unpalatable as it may be to large numbers of liberal constitutional reformers, that will hover, ghostlike, over English law for years to come.

The Human Rights Act will, from time to time, make little differences, sometimes for better, sometimes for worse, but most of the time it will make no difference. Its most significant contribution is likely to be the encouragement (as if we needed it) of more litigation, lining the pockets of the nation's barristers, but doing precious little for its civil liberties.

There is no reason to suppose that the UK's judges will necessarily have any more regard for issues of free speech when they further develop the law of political libel in the future than they had in past.

Adam Tomkins is a fellow, St Catherine's College, Oxford.

Political Libels: A Comparative Study

Author - Ian Loveland
ISBN - 1 84113 115 6
Publisher - Hart
Price - £22.50
Pages - 190

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