Saturday, 24 April 2010

Four suggestions on "proof" in libel

There are lots of things that need addressing in libel reform. Should corporations be able to sue? How on earth can we reduce costs to an acceptable level? And, of course, what "proof" should be presented and by which side. Below are three suggestions I have, not for "reversing" the burden of proof but re-thinking proof-in-libel altogether.

Facts, opinion and burdens of proof

The defences open to a defendant in English law depend on whether the words complained of express an “opinion” or a “fact”. Broadly (very – see here for a better outline ) if the words complained of make a verifiable claim then the defendant had better damn well verify it. The burden of proof here is firmly with the defendant. The complainant is not, in any way, required to show that the claim is false. If the words complained of are the expression of an opinion then (absent malice) the defendant need only show that it is an honest opinion.

In libel reform discussions it is often put forward that the burden of proof should be reversed: that the claimant should be required to show any factual allegations made to be false. This seems nice and simple but is fraught with difficulties. The difficulties arise because the fact/opinion dichotomy is too, well, dichotomous.

There are facts about the world, things that if said would be true. Unfortunately not all, in fact very few, of those facts are either known or readily discoverable. Thus we have opinions about facts.

Some facts we do not have "opinions" on or, if we do, we all share the same opinion or, if we don't, we consider those who differ in opinion lacking in knowledge, mad or bad. "Jack Kennedy was assassinated in Texas" is a fact in this sense. We can call "this sense" a "Fact", in inverted commas and with a capital "F".

If there are one or more putative “Facts” on which the case depends I see no problem in asking the complainant to establish them. The reason they are “Facts” is that they already have been established and their demonstration to others who do not accept them is a simple and straightforward matter. In the case imagined we could simply pull out a history book. Failure to meet a reversed burden of proof on this type of "Fact" would not unjustly disadvantage claimants: it merely invalidates the judgement that the case involves “Facts”. Pure “Facts” cases should be “open and shut” cases where, if the claimant can show that no informed person could reasonably believe what had been said then the claimant can cut out all the argument and the court starts looking at compensation.

But the vast majority of cases will not be decided on the basis of "Facts". They will have at their heart a putative fact such as “Lee Harvey Oswald assassinated Jack Kennedy”. Yes, this is a factual statement: one of “Lee Harvey Oswald assassinated Jack Kennedy” and “Lee Harvey Oswald is innocent” is a fact. But it is not a "Fact", we can reasonably put forward either one and "opinion" becomes inextricably mixed with fact. On the current "Fact"/verify "opinion"/honest basis, together with an understanding that most interesting facts are also matters of opinion, almost all libel cases would revolve around "honest opinion".

That seems way too broad to me. Interpreted one way it allows anyone to shoot their mouth off merely on the basis that they "honestly believe" an allegation. Interpreted another way it pretty well stops us saying anything at all. There is a difference between saying:
1. X is a paedophile
2. X cheated on his expenses
3. X supports Liverpool Football Club
All three are defamatory and any one of us may honestly hold that opinion about any other person. I would contend that whilst I could happily throw about the accusation that X supported Liverpool Football Club when there was not a jot of eidence I should have reasonable evidence for claiming that he cheated on his expenses. If I were to, publicly, claim that X was a paedophile then I should have very strong evidence indeed. The “honesty” of my opinion doesn’t enter into our judgements as to whether the claim can be put forward. The level of evidence required does and appears to vary with just how defamatory the accusation is. An overarching principle, such as “honestly held” would risk overriding that. If newspaper A alleged that X was a paedophile, X would effectively be prevented from seeking redress if all the defendant needed to show was that he had a conversation in a pub and as a result believed X was a paedophile. On the other hand my rights to free expression would be unfairly curtailed if I were not allowed to say “Dr. Evan Harris supports Liverpool” without conclusive proof.

Suggestion 1: Anything other than facts that are readily established, to the extant that anyone with knowledge, sanity and goodwill, should be treated as "opinion"
Suggestion 2: At the initial hearing in any libel case the claimant should be offered the opportunity to show that the allegations made would be recognised as false by anyone with knowledge, sanity and goodwill. If he established that then the court would, in that hearing, assess how defamatory the allegations were and what recompense (if any) was appropriate.

Suggestion 3: At the initial hearing the court should look forward to the likely damages that would be awarded as a way of determining the extent of the defamation caused by any opinion. Based on this the court would decide the nature and extent of reasons the defendant should have had before making the allegation.

Harm done and what is the defamation

We can consider a real case for this bit, the BCA’s claim against Simon Singh which they have recently discontinued after an adverse ruling by the Court of Appeal. The BCA contended that they were libelled (ie defamed unjustly) by the following words:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

The BCA press release of 15th April 2010 states that the BCA still considers that it was defamed by Simon Singh in the article. Of course it was defamed and remains defamed. Given the lightest reading from the Court of Appeal decision the article claimed that the BCA promoted treatments for which there was no reliable evidence without regard to that lack of evidence. That is not a good way for a professional body to behave. Any decent person should downgrade their opinion of the BCA on the basis of this. The words had a defamatory meaning. What has not been established is whether the words unjustly defamed the BCA and the BCA seems to accept that they have no hope of establishing that they were unjust. On the basis of this allegation the BCA have dropped the case: we can term it the “accepted” allegation.

The BCA had hoped to show that an allegation had been made that they had promoted the treatments when they knew that there was no evidence reliable or otherwise. It can be argued (indeed it was accepted) that Simon did not have sufficient evidence to establish that the BCA knew the state of evidence of the treatments. Neither could Simon have established that there was no evidence reliable or otherwise for the treatments. If one accepts that evidence can be unreliable and still be evidence (I don't) then the BCA have lots of evidence even though it is shit evidence. We can call the allegation of "no evidence, reliable or otherwise" and the BCA's knowledge the "disputed" allegation.

The issue before the Court of Appeal was whether Simon had made the accepted allegation or the disputed one. And it seems a fairly reasonable issue to address. If Simon had made the accepted allegation he was in the clear. If he had made the disputed allegation, an allegation he did not have good grounds to make, he was in trouble.

But hold on, what if:
1. The accepted allegation is just as defamatory as the disputed one and
2. Simon first (clearly) made the accepted allegation and later made the disputed allegation.

As above the level of evidence required to back up an allegation depends on the defamatory effect of the allegation. In this scenario the, later, disputed allegation has no defamatory effect: the BCA's reputation would have already been trashed by the accepted allegation.

Simon would appear to be varyingly liable dependent on the order in which he made the allegations. But this is clearly unjust. The damage to the BCA’s reputation does not similarly vary dependent on the order in which the allegations are made: the link between the damage Simon does and his liability is broken.

Suggestion 4: The court should break allegations apart. The grounds for making the allegation that the defendant need show should be set on the basis of the marginal defamatory impact of the particular part considered.

(In the BCA case, the court might have been unlikely to consider the marginal defamation of the disputed allegation to be nil. However the court may well have decided that the marginal defamation was not very much and, thus, that Simon had to show very liitle reason to make the allegation.)

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