This piece was inspired by the recent arrest and detention of the AIT journalist Amaechi Anakwue on defamatory charges by police AIG Mbu Joseph Mbu.
I am aware the matter is in court so this piece is not about the Amaechi Anakwue case but rather a general commentary on how the tension between free speech and the need to protect people’s reputation is resolved in American and English defamation laws. Let me quickly admit that my knowledge of Nigerian defamation laws is rudimentary.
I have always been fascinated by defamation laws. In my LLM thesis in Media Law for City University, London (2008), a thesis that was scored an ‘A’, I looked at how free speech interests are balanced against the need to protect people’s reputation in American and English defamation laws.
Generally speaking free speech means the ability of people to speak their minds without censorship. Freedom of expression, a broader concept than freedom of speech, is sometimes used as a synonym not just for freedom of verbal speech but also for any act of seeking, receiving and imparting information or ideas, irrespective of the medium used. Free speech is increasingly recognised as a universal human value, even though its application differs from jurisdiction to jurisdiction. Free speech is however never absolute anywhere. The main reason why free speech cannot be absolute is because it competes with other equally important human values such as the right to privacy, reputation or to protect society from potential harms from unrestrained hate or obscene speech.
There are a number of political, philosophical and moral arguments why free speech deserves special protection. In general four key arguments are put forward to justify free speech principle – the importance of discovering the truth through unfettered exchange of ideas in the political marketplace, free speech as an aspect of self-fulfilment, free speech as being indispensable for citizens to participate in a democracy and a belief that there is a strong reason to be suspicious of government.
As mentioned, one of the derogations to freedom of speech in most jurisdictions is the need to protect people’s reputation.
In defamation, the law recognises two torts – libel and slander. The main difference between the two lies in the medium in which the alleged defamatory statement is published. If the alleged defamatory material is made in writing or some other permanent form such as on a tape recorder, then it is libel. If however the damaging material was published in a transient form, such as word of mouth, the injured party could sue for slander. In libel, the law presumes that the defamed has suffered damage and the claimant does not need to prove any financial loss. In slander however, the claimant will have to satisfy the court that he or she has suffered financial damage arising from the defamatory statement.
The law also makes a distinction between a defamatory allegation for which a claimant may sue for redress and remarks or insults which however offensive or abusive, are not actionable. In defamation proceedings, the crucial question is: are the particular words in the context in which they are used defamatory? In other words, are the words capable of lowering the reputation of the claimant in the estimation of right-thinking members of the society or cause the person to be shunned.
Defamation laws could be traced to 19th century England when King Alfred the Great was said to have decreed that slanderers should have their tongues cut out. Shakespeare in his play Othello summarised what appeared to be the social basis for the English nobles’ obsession with protecting their reputation:
Who steals my purse steals trash….
But he that filches me from my good name,
Robs me of that which not enriches him,
And makes me poor indeed
In England, the traditional method for redressing damage to reputation was duelling. However when duelling was banned, it was permitted for civil action to be brought for defamation. As a result the English courts were inundated with defamation actions by nobles who felt insulted such as being accused of cheating in a card game or of shooting foxes (gentlemen hunt foxes with dogs).
Apart from statements made on occasions of privilege (such as in parliament) for which no one can be sued, there are three classic defences for defamation – fair comment, truth (justification) and public interest. Public interest – the right of the public to know – is often a classic defence by the media to justify publications of intrusive and defamatory materials.
In the US there is a clear trend to give more protection to freedom of expression than protection of reputation. Increasingly the US courts have accepted that media houses should be allowed to publish defamatory allegations against the conduct of politicians, public figures and public officials provided that such stories are in the public interest and that the publisher has not acted irresponsibly. A landmark case in this regard is New York Times v Sullivan (1964). The case’s precedent was Brown v Board of Education (1954), in which the United States Supreme Court repudiated the constitutionality of racial segregation in USA. There were allegations that many southern states resisted the decision in Brown v Board of Education. Libel actions and their threats were allegedly used to ‘chill’ the free reporting of the civil rights campaign and the resistance to the Brown v Board of Education decision in the southern states. On 29 March 1960, The New York Times carried out a full page advertisement entitled ‘Heed Their Rising Voices’, which solicited funds to defend the civil rights leader Martin Luther King Jnr. against an Alabama tax evasion charges. The advert described actions against civil rights protesters – quite a number of them inaccurately – which involved the police force of Montgomery, Alabama. Though Commissioner L.B. Sullivan whose duties included the supervision of the police department was not specifically named in the advert, he argued that his position as a commissioner there meant that the inaccurate criticisms of the actions of the police were defamations against him. An Alabama court ruled in his favour and awarded him $500,000 in damages. The US Supreme Court however overturned this on the grounds that the Alabama courts failed to apply the safeguards for protecting freedom of speech and of the press as required by the First and Fourteenth Amendments. The ruling in Sullivan prohibited public officials from recovering damages for defamatory falsehood relating to their conduct – except in cases of ‘actual malice’ (the claimant must proof that the publisher of the statement knew it was false or acted in reckless disregard of its truth or falsity). The ruling allowed for the first time free reporting of the civil rights campaigns in the southern United States. Because of the extremely high burden of proof of actual malice required of the claimant when they involve public figures or public officials, it is almost impossible for public officials to win defamation proceedings in the USA.
In the UK, though the Human Rights Act 1998 has somewhat skewed the tension between free speech and the need to protect reputation in favour of the former, London is still regarded as the defamation capital of the world. Some American journalists in fact nicknamed London “a town named Sue.”
In Derbyshire County Council v Times Newspapers Ltd (1992), Derbyshire County Council, a local authority in the UK, sued The Times for articles which questioned the propriety of certain investments by the council in its superannuation fund. The Court of Appeal overturned an earlier ruling that a council could bring action for libel. The court held that since it was of the highest public importance that a democratically elected government should be open to uninhibited public criticisms and since a threat of civil action for defamation could place an undesirable fetter on the freedom to express such criticisms, it would be contrary to public interest for institutions of central or local government to have any right to bring an action for damages for defamation.
In Galloway v Telegraph Group Ltd (2006), George Galloway, a well-known member of Parliament who was strongly opposed to the Iraq War, sued The Telegraph for publications in the paper, which among other things, claimed that he was in the pay of Saddam Hussein, and called him names such as “Saddam’s little helper”. There was no doubt that the issue reported by the paper was of great public interest. However in his ruling, Eady J., who tried the case without a jury, held that the articles complained of were seriously defamatory- a ruling that was upheld by the Court of Appeal. The judges argued among others, that the paper could have done more to hear and also publish Galloway’s side of the story. One of the lessons from the Galloway case was that controversial politicians regarded by the government of the day as irritants also have reputations to protect. I am however not sure that Galloway would have succeeded in his case if it had been brought in the USA.
(Note: For a more detailed discussion of how the tension between free speech and the need to protect reputation in the USA and the UK see my book: Free Speech v Reputation: public Interest Defence in English and American Law of Defamation (2010), available on Amazon and other leading online retailers.)