Defamation And Free Speech In England And Russia Law Essay

The basis of modern society is formed by the fundamental human right of freedom of speech. The importance of having this fundamental right is immense. In order for this world to continue modernizing, it is very important to let every individual voice his/her opinion. However, in certain situations what one person says (intentionally or unintentionally) might harm the reputation of another person. I believe that defamation law and freedom of speech are two different sides of the same coin. They always go together, yet talk about two contradicting concepts. If freedom of speech gives everyone the right to express themselves, then defamation limits this right, in order to protect the reputation of individuals from being harmed. Every country has its own coin which is unique in its own way. This means that every legal system has its own way of evaluating freedom of speech and defamation law. Therefore, I think, it will be interesting to make compare the defamation law in the Russian legal system and the defamation law in the English legal system, as they are both part of completely different legal traditions. By examining these two different jurisdictions, I will try to evaluate whether defamation law infringes the fundamental human right of speech.

Defamation law in England:

General overview (Defamation and Free Speech):

Defamation is quite different from the other torts because, unlike the others it protects something that is indistinct; it protects the claimant’s reputation (not personal safety or personal integrity, unlike the other torts). Since it protects something so abstract, it can be difficult to actually reach a fair conclusion. Thus, the question here arises that what is defamatory and did it really harm the reputation of the claimant. It should be clarified as to what is actually meant by “harm the reputation of the claimant”. This phrase means that certain comments/statements have caused the claimant to be avoided and shunned by the “right-thinking members” of the society.

Defamation can be made in two forms, either libel (i.e. permanent/written form) or slander (i.e. auditory form). In order to give rise to liability in defamation the claimant has to mainly prove three things. Firstly, the statement has to be defamatory (i.e. should harm the reputation of the claimant). Secondly, the claimant also has to prove that the statement was in fact referring to the claimant and not someone else. Thirdly, the defamatory statement was demonstrated to a third party (by third party, it is meant at least one other person). Moreover, in cases of slander the claimant also has to prove that the statement caused actual damage (i.e. financial loss). Once the claimant proves these things, the burden of proof falls on the defendant, because the statement(s) is/are presumed to be false. [1] 

When it comes to human rights, especially free speech, many critics believe that the English legal system does a poor job of protecting it. The main reason is believed to be the fact the Great Britain does not have a written constitution. Therefore, the interpretation of human rights lies in the hands of the judges (who can be very subjective). However, things have changed slightly since the introduction of “European Human Rights Convention” and “1998 Human Rights Act”, both of which have helped the English law to develop and also clarify certain points. Nevertheless in certain situations it can be seen that the English law still struggles to provide justice to these acts [2] .

This was the case in R v Shayler, where Mr. Shayler, a former member of the Security Service, disclosed that MI5 kept files on future labour ministers, alleged incompetence relating to the IRA bombing of Bishopsgate in the City of London in 1993, and the bombing of the Israeli embassy in London a year later, and that MI6 was involved in a plot to assassinate the Libyan leader, Muammar Gadafy, in 1995. The defence of Mr. Shayler was based on the freedom of expression and public interest. He was charged under the Official Secrets Act 1989 which prohibited any member of the security and intelligence services, from disclosing any information about his/her work. However, according to Mr. Shayler this act was incompatible with article 10 of the Convention and it violated his right of free speech. Nonetheless, the House of Lords decided unanimously to dismiss his appeal [3] .

Consequently, I personally believe that it can be seen from the type of information Mr. Shayler disclosed, that he acted in public interest.

Defences:

Defences are given more importance in defamation than in other aspects of tort. The defences are given such immense importance, in order to avoid violating the constitutional right of free speech. Moreover, it is not very difficult for the claimant to establish the elements of defamation. Once the claimant established the elements, it is up to the defendant to prove his/her innocence. Therefore, defences are of enormous importance. There are certain defences which help the defendant to do so, for example, Justification (truth), privilege, fair comment and defence of innocent publication under s. 1 Defamation Act 1996. Other than these defences, there are some others, which help the defendant to remove the liability, for example, offer of amends under s.2 Defamation Act 1996 and expiry of limitation period [4] .

Since the statement made by the claimant is assumed to be false, the defence of justification tells that whatever the defendant published was true and thus the claimant has no right to complain about true statements which lower his/her reputation. Moreover, if the defendant has made a number of distinct charges against the claimant, then it will be sufficient that the defendant proves the truth of most of the charges such that the other statements do not injure the claimant’s reputation materially.

Defamatory statements made on a privileged occasion are not actionable. Privileged occasions are those, where public interest in freedom of speech is such that it overrules any concerns as to the effect of this freedom on the claimant’s reputation. [5] There are two types of privileges, absolute and qualified. Absolute privilege applies to statements made in Parliament, court hearings, any document ordered to be published by House of Parliament and communications between certain officers of state. Qualified privilege applies to an occasion where the person who makes a communication has an interest or a duty (legal, social, or moral) to make it to the person to whom it is so made has a corresponding interest or duty to receive it. [6] The rationale for this is said to be the “common convenience and welfare of society”. Unlike absolute privilege, the defence of qualified privilege will be defeated if malice is proved.

Fair comment protects the defendant’s right to criticize the claimant, which is why the defendant does not have to show that his/her words are true. However, this right to criticize is kept within strict boundaries. In order to qualify for this defence the defendant must prove that he/she was acting in public interest. Moreover the defendant should also show that the statement was based upon a set of facts and that the defendant honestly held that opinion.

If a person was involuntarily or unknowingly involved in the process of publication of the defamatory material, then the defence of innocent publication (under s.1 of DA 1996) will apply to him/her. The defendant should prove that he/she took reasonable care in relation to the statement’s publication. Moreover, he/she should also prove that he/she had no reason whatsoever to believe that his/her actions caused or contributed to the publication of a defamatory statement. This defence cannot be applied to the author, editor or publisher.

If the defendant has unintentionally defamed the claimant, then he/she can make an “offer of amends” (i.e. publish an apology). If the claimant accepts this offer then the proceedings would end, however, if the claimant refuses to accept it, then this would become a defence for the defendant.

The expiry of the limitation period cannot be really regarded as a defence; it is more of an assertion that the claimant has run out of time to bring his/her claims for defamation.

It is obvious from the defences mentioned above, that English law tries to take reasonable care to protect free speech from being violated. However, the question which arises here is whether these defences are enough. I personally think that it is not enough, because despite the strong defences there are still some major glitches in the system. The main example would be the unnecessarily high costs of bringing up a defamation lawsuit. Since legal aid is not available, the cost of hiring a lawyer is relatively high. This leads us to think that defamation law is only for the rich and the poor cannot seek justice from it.

Defamation in Russian Law

General Overview (defamation and free speech):

In the Russian legal system, up until the last decade of 20th century, defamation was a part of the criminal law. The Russian Criminal Code contains five articles which deal with defamation. In order to sue for criminal defamation the claimant must prove that the statement was made with malicious intent to harm the claimant’s reputation. Furthermore, the claimant must also prove that the defendant knew that the statement was false.

In the past two decades, due to the collapse of the Soviet Union, the Russian law underwent some major reforms, such as the introduction of defamation in civil law. Civil defamation is covered by various articles of the Russian Civil Code. According to article 152 of the Civil Code, the elements required in order to establish civil defamation are: dissemination of information, information must be defamatory; the information must be false, the information should be of factual nature, and the information should be referring to the claimant. The claimant only needs to prove that the statement was published, other than this the burden of proof falls on the defendant.

Defences [7] :

Russian civil defamation law mainly focuses on how to deal with the defendant who is found guilty. This can be seen in the emphasis placed by these requirements on the grounds for bringing a defamation lawsuit, how the defamatory statement will be refuted and how the compensation should be awarded. The main problem with these rules is that they contain very little information on how the defendant may defend him/herself. The defences are provided under international law.

First, a defendant should be given a fair opportunity to prove that the statement made by him/her is true. If the defendant succeeds in doing so, it removes liability from the defendant.

Second, if the statement was made in public interest and it was reasonable in all circumstances for the defendant to publish the information in the form he/she did, then the defendant can benefit from the defence of “reasonable publication”.

Finally, the defendant cannot be liable if the statement actually expresses his/her opinion. An opinion is defined as a statement which does not include any factual expression or cannot reasonably be interpreted as a fact, because of the language or context.

Evaluation:

Defamation law and free speech are both equally important concepts in our society. One person’s right of free speech should be balanced against another person’s right to being protected against being defamed by lies. Therefore it is crucial to exercise freedom of speech and defamation law helps to do so. I personally believe, that defamation law is one of the most important part of tort law, since it protects people against those false statements which might harm their reputation. Moreover, defamation law tries its level best not to infringe free speech. The defences used in defamation law try to create a balance between freedom of speech and defamation. However, in certain cases freedom of speech ends up getting violated.

In England free speech is fundamental human right which is granted by the common law and protected by the statute law. Provisions are taken by the judiciary in order to avoid violating the constitutional right of freedom of speech. This can be seen in English defamation law, which has a lot of defences which help the defendant to protect his/her interests (i.e. free speech). However, compared to other common law countries, for example USA, the English defamation law has some glitches. The main example would be placing the burden of proof on the defendant or assuming that the statement made by the defendant is false. I think that this places the defendant in an unfair position.

In Russian law, the defences are very limited and the punishment is greater because defamation in Russian law is regarded as a criminal offence in certain cases. I think that defamation should not be regarded as a criminal offence under any circumstances because it “creates an impermissible “chilling effect” stemming the flow of protected speech”. [8] Moreover, the burden of proof shifts improperly, thus, requiring the defendant to prove his/her innocence. I believe that Russian defamation law needs to cut out defamation from criminal law completely.

It can be seen that compared to English defamation law; Russian defamation law limits free speech to a greater extent. The main reasons are limited number of defences and defamation being a part of the criminal law. However, the Russian law has tried to improve the situation by implementing defamation in their Civil Code.

The result of my research says, that despite the fact that the defences help to minimize the negative effect of defamation law on free speech it can be said that almost every legal system infringes free speech to some extent. The main reason for this is limited number of defences (in the case of Russian law) and in some cases the judges tend to favour the protection of reputation more than free speech.