The defamation discussion may be broadening somewhat if, at last, some journalists are prepared to admit that all is not healthy in our media village, that some safeguards are necessary if we are to retain balance.
The growing willingness to accept that self-regulation is a non-runner is especially welcome. But a number of misrepresentations continue to be peddled, some going so critically to the heart of the matter that they cannot be left lying around.
One is the idea that defamation law overwhelmingly favours plaintiffs. This nonsense, accompanied now by a new fiction - that libel laws assume that free expression is a bad thing - is part of a building chorus of opposition to details of changes currently mooted. It is important to nail these fallacies which, whatever their derivation in the arcane complexity of scriptural law, have little currency in a modern libel court.
One fallacy is that the onus of proof in defamation actions rests excessively on the defendant. In fact, a significant onus of proof lies with the plaintiff, who must, for a start, prove that he is the injured party, that the words at issue have a defamatory connotation, and that he has been subject to damage arising from this. Then, the onus of proof with regard to disputed facts shifts to the party who has made the allegations, which is as it should be.
Media interests rarely concede that defendants are required to prove the facts only on the balance of probabilities, not beyond reasonable doubt, latitude unavailable to prosecutors in criminal proceedings. Media interests claim the burden of proving the facts places them at an unjust disadvantage. It is complained that, in some cases, witnesses who have been prepared to divulge information in confidence will be unwilling to repeat themselves in court. This, it is argued, can prevent the publication of information important to the public interest because even reliable sources may be fearful of revealing themselves. But given the nature of some of our media, this could be tantamount to suggesting that the presumption of innocence be inverted to allow journalists trade with impunity in the tittle-tattle of sources lacking the courage of their malice.
It depends where your interest lies. The necessary balance that laws require can often militate against the public interest in lesser ways, while upholding it in more significant ways. And, since reversing the burden of proof would enable the dissemination of falsehoods impossible to disprove, the present formulation probably gets the balance about right. Nor is it often acknowledged that truth amounts to a complete defence of any statement of fact, regardless of motive, justification or the public interest. This, by extending carte blanche to media to probe where they will, renders the present balance immeasurably more important.
The idea that defamation law discourages free expression is more tenuous still. On the contrary, numerous judgments have elevated the principle of free expression far above even issues of precision or reasonableness, and in doing so made space for much that is bad in journalism. The defence of "fair comment" extends latitude to the expression of opinion far beyond what might colloquially be deemed "fair", as long as the opinion is honest and rooted in established fact. The 1887 judgment of Lord Esher held that even gross exaggeration does not disable an opinion: "However wrong the opinion expressed may be in point of truth or however prejudiced the writer, it may still be within the prescribed limits. The question which the jury must consider is this: 'Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?'"
In discussing defamation litigation, journalists frequently conflate issues relating to fact and opinion, implying that similar burdens apply to both. But there is a clear legal distinction between fact and comment, the latter having almost unlimited rein if it is honest and supported by some facts. Many libel actions concern disputes less about damaging facts than comments based on extrapolations from statements that, true or untrue, may not be defamatory in themselves. Here, the burden of proof falls squarely on the plaintiff, who must show that the comment is unfair. This can be difficult, especially when defendants take the opportunity to throw copious mud at the plaintiff in an effort to cloud a jury's view.
In recent years, media defendants, complaining loudly about being hounded by litigants, have used the courts in attempts to demolish what little limits there are on freedom of expression. While misusing their privileged positions as disseminators of information and opinion to plead victimhood at the hands of unscrupulous litigants, some media interests have made clear that they will use their considerable resources to fight actions to the bitter end, however tenuous their standing in honesty or fact. Luckily for our democracy, these efforts have failed.