Free Speech and Defamation Bill 2012 - Essay Example

Free Speech and Defamation Bill Number Department Introduction Libel and privacy violations entailthe communication or dissemination of information about a person, an assembly or an organization. However, libel refers to acts or materials of defamation that are visible and may therefore take various forms such as writings, effigies, printings, movies or statues. Privacy violation on the other hand refers to the contravention of boundaries and content of that which is considered private. It is a matter beyond gainsay that the law of libel and privacy invasion does not wrongfully restrict the work of the press, though there is a clash between this law and the work of the press. The law of the press only draws the parameters that the press should confine itself to, when broadcasting information. That libel and privacy laws do not wrongly restrict the work of the press is underscored by the fact that the press in its existence and functions does so in light of tort. This is to the effect that the press owes the society duty of care, when handling information, so that it is obligated to eschew using information in a manner that is injurious to an individual, group or organisation’s reputation, character or person. Tweed1 posits that the law acknowledges the duty of care that the press owes the society, so that there is no threshold left for dabbling in acts of libel and privacy violations. All acts that govern dissemination by the press do not make provisions for libel and privacy violations. For instance, even the Freedom of Information Act 2000 creates the right of the public to access information, but this information is limited to that which is held by public authorities and thereby precluding information pertaining to individuals. The Data Protection Act 1998 also governs the protection of personal information in the UK, and thereby limiting space for slander, defamation and breach of privacy by the press. In like manner, UK Stationery Office2 and UK Parliament3 observe that the Privacy and Electronic Communications Regulations 2003 as a UK law legally proscribes the transmission of automated recorded messages, without prior consent of the subscriber. Herein, this law makes it clear that transmission of automated recorded telephone messages for direct marketing purposes outside the subscriber’s permission is not only an infringement of that subscriber’s privacy, but is also illegal. That the law on libel and privacy violation does not limit the work of the press, is a matter that is well confirmed by the fact that they (the laws) have exceptions that safeguard media practices to the same effect. This is exemplified by the case laws Greene v Associated Newspaper (2004) and Bonnard v Perryman (1893). Particularly, in the latter, the court of law ruled that judges are not to stop defamatory allegations that are circulated, in the event that the would-be publisher is ready to defend them (in a court of law), unless it is express that no defence is to succeed at trial4. Again, the issue of Civil Liberty extends to not only include the freedom of speech, conscience, property ownership, movement and the right to assembly, but also to also include the right to privacy and dignity. Thus, the law of libel and privacy are not in existence to muzzle the media, but exists to maintain the boundaries that define the freedom of the press and to harmonise it with human freedoms and rights. The Defamation Bill 2012 The idea that the Defamation Bill 2012 is inadequate to deal with the restrictions on Press freedom is not true, since the bill has made provisions that are more in favour of the press than the individual, a group or an organisation. First, the veracity of the standpoint immediately above is premised on the fact that in essence, the Defamation Bill 2012 was chiefly made to strike a balance between the right to protection of reputation and freedom of expression and therefore makes substantive amendments to the law of defamation, without necessarily codifying the law into a single statute. Specifically, Defamation Bill 2012 makes it mandatory that claimants show that they have suffered serious or grievous harm before opening a legal suit for defamation. This considerably removes restrictions on press freedom since putative plaintiffs have been extended extra burden as a requirement for opening up a legal suit against the media for defamation5. Such standpoint is justified since the Defamation Bill 2012 makes provision for increased protection to website operators who host user-generated content, as long as they adhere to the procedures provided, to enable the complainant resolve disputes directly with the author of the disputed material. This is a significant extension of press freedom, since online media outlets have the chance to settle disputes, without the engagement of the court of law. Similarly, the justifiability of the standpoint that the Defamation Bill 2012 adequately deals with the restrictions on press freedom is a matter that is underscored by the same bill removing the current presumption, in a jury trial’s favour, as Francis and UK Stationery Office6 observe. In another wavelength, Bernan Association7 and Horne8 explain that the Defamation Bill 2012 introduces the defence of responsible publication on matters that concern public interest. This is to the effect that even if an individual may successfully open a legal suit for libel, traducement or defamation, yet that case will be heard not only with the harm and the evidence of the harm he has suffered, but also with public interest in mind. This epitomises the extent to which the new bill has gone to strengthen press freedom, as it goes about its operations. Finally, the Defamation Bill 2012 also introduced new statutory defences of fair comments and honest opinions and truth to face out the common law defences of justification. As is explained by the Scottish Government9, Horne10 and RCFP11, the import of this is that even if one would open a legal suit, the jury could still decide that the material that was aired was a fair comment or a truthful comment, and not necessarily an open case of traducement. This is significantly in favour of press freedom. Whether the Defamation Bill 2012 Is Appropriate and Goes Far Enough By far, the Defamation Bill 2012 is the most appropriate approach through which the perennial clash between press freedom and the right to protection of reputation. First, this is because, the disparity between press freedom and the right to protection of reputation is a legal problem, yet this bill provides a legal solution. Secondly, the Defamation Bill 2012 does not overwrite, but also makes an improvement on the Common law defences, which were somewhat too archaic and rigid to solve the aforementioned disparity. For instance, Devenney12 and Havard13 shows that Common Law defences were so much made outside questions of Freedom of Speech and conscience, so that in defamation and libel cases, defendants were held strictly liable, whether the information they aired was false or true, that notwithstanding. Again, the fact that such cases were made on state-by-state basis, made Common Law somewhat harder to uniformly apply. On the contrary, the Defamation Bill 2012 is uniform enough throughout the UK to seal the loopholes that characterised the provisions within Common Law14. Thus, it is clear that the Defamation Bill 2012 goes (more than) far enough to reinforce press freedom. The Need for the Law of Obligations to Be Modified To Deal with the Problem Despite the magnanimity that accompanies the Defamation Bill 2012, there are some sections that need modification. In turn, the need for this modification is underscored by the need to protect individual or group members of the public or even corporate entities from the excesses of the press that may come about with the implementation of this same bill. Logically, the requirement that claimants show that they have suffered grievous or serious (rather than simple) harm before suing for defamation is discriminatory against members of the public. The incurring of harm by one party because of another actor’s inaction or action must be addressed before the court of law and compensated for, fully, if breach of duty of care is found to have taken place. Secondly, to argue otherwise is to insinuate that civil liberties (or the right to protection of reputation) can be sidestepped and are ancillary to press freedom and interests. Again, the provision for responsible journalism defence which is enshrined in the Defamation Bill 2012 also seriously needs qualification. This is because, going by the provisions thereof, instances where hackers can claim that they made their revelations in responsibly and pro bono have not been criminalised, despite the serious ethical and legal issues involved. References Amos, M., Harrison, J. & Woods, L. “Freedom of Expression and the Media.” [2012] CNRC, 142. Bernan Association. “8th Report of Session 2012-13: Defamation Bill Government Responses: Justice and Security Bill [Hl]; Electoral Registration and Administration Bill; Financial Services Bill; Civil A.” [2012] 50 HSL 3, 22. Devenney, J. “Contract, Tort and Restitution 2012-2013.” [2013] 3 RSS 5, 333. Havard, D. “Defamation Bill: 4th Sitting, Tuesday 26 June 2012 (morning).” [2012] 4 PBC/HC 1, 7. Horne, A. “Defamation Bill: Bill No. 5: 2012-13.” [2012] 12 HCL 7, 23. Horne, A. “Defamation Bill Committee Stage Report: Bill No. 51 2012-13.” [2012] 13 HCL 3, 9. House of Lords & House of Commons. “Draft Defamation Bill Report.” [2012] Session 2010-12, 41-43. Ministry of Justice. “Draft Defamation Bill Consultation.” [2011] 3 CP 11, 12-9. Reporters’ Committee for Freedom of Press (RCFP). “Reporters’ Recording Guide.” [2012] RMLT, 1 Retrieved From: http://www.rcfp.org/reporters-recording-guide Scottish Government. “Defamation Bill.” [2012] 1 SG 1, 3-5. Tweed, P. 2012. “Privacy and Liberty Law: The Clash with Press Freedom.” [2012] BP, 75-84. UK Parliament. “Defamation Bill 2012-13.” [2013] UKP, 1 Retrieved From: http://services.parliament.uk/bills/2012-13/defamation.html Francis, H & UK Stationery Office. “Legislative Scrutiny: Defamation Bill Seventh Report Session 2012-13, report, together with formal minutes and written evidence.” [2012] 6 JCHR 6, 26-8. UK Stationery Office. “Defamation Bill: Report, 9th Report of Session 2012-13.” [2012] 9 HLP 1, 4. Read More