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Silver Tongued Devil: Defamation through the Looking Glass

      “Silence”, the Queen wailed condemning Alice. “Off with her head!” (Carroll 1994) Freedom of speech, the right to express oneself, and civility has always been in conflict. Transcending ritual and honour from the Middle-Ages, historically, Britain is a culture where the deeds of the individual determine the value of life. Dishonourable actions like defamation, a statement that diminishes an individual, "in the estimation of right-thinking members of society”, is now punishable by law (Sim v Stretch 1936).  Today, the United Kingdom’s modern defamation laws have been influenced by Germany idealism and Grundgesetz, or the power of the state to ameliorate itself through legislation (Jones 2012). Why is it that greater freedoms of speech are made by limiting certain forms of it, and how does this affect professionals working in the communications industry?

 In the United Kingdom, the concept of free speech is derived from Emmanuel Kant’s metaphysical Looking Glass approach to speech that separated thought from external expression. Kant argued in favour of (harmless) speech generally but believed speech should not infringe on others’ freedoms. Indeed, this is the basis for the defamation law in the United Kingdom. When damage is caused by someone’s use of speech, when it infringes on another and causes harm, it shall thus be criminal. British philosopher, John Stuart Mill argued that “there is no right to defame others” (O’neill 2006).

One could argue that Civic Republicanism should guide individuals without the need for “despotic governments” which guide us “slavish and dependent human beasts” (Sleeper 2010); however, borrowing from the Tragedy of The Commons, humans naturally demand inequality in their benefit. Defamation law leverages freedom of speech in a more balanced and fair manner for all, rather than the individual.

Though many Western nations derive their defamation laws from the United Kingdom, British law is unique in that it is the burden of the defendant to prove their statements true rather than the Plaintiff, and  it suggests that everyone is born with a good reputation until this fact is otherwise proven false (Mclean 2013).  This approach to defamation, derived from century old civil code created an atmosphere of lawsuit tourism prior to the 2013 reforms. Yet, defamation cases continue to increase in the United Kingdom where litigation is up 23% from 2013 (MacErlean 2014).

Thanks to Chase Versus New Group (2002), there’s no need to show that everything is true, and the decision created Chase Levels to judge the complete defence of truth (Bloy 2014). These three levels are 1) Fact, 2) Reasonable evidence, and 3) Suspicion.  Chase Levels allow the facts to speak for themselves, with Level 1 (Fact) requiring evidence, Level 2 (Reasonable evidence) requiring some evidence, and Level 3 (Suspicion) consisting of little evidence. In each case, the Rules of Evidence are important, and proving innocence may prove to be time consuming and costly (Ibid.).

Therefore, as for those who practice Public Relations and Communications, it is important to recognize that comments should be weighted in fact rather than opinion. When an Honest Comment is made it must be in response to a matter of public interest with the absence of malice, and be honest and fair (Cukier 2013). Context is generally used to distinguish fact from an Honest Comment, and it must be centred on a factual public interest item (Ibid.).

Interestingly, it was in Albert Cheng V. Tse Wai Chun Paul that a new test for Fair Comment or malice was created. Can the proof of malice trump fair comment? If intent to substantially harm can be shown, then defamation has occurred, however, if the statement is recognizable as comment, the opposite is true. In essence, in order to prove Actual Malice in the presence of Fair Comment, one must prove that one party was substantially harmed by the comment and the other party gained (Ibid.). The most popular hypothetical example of this is two politicians defaming the other for their benefit. For Public Relations experts it is therefore important that the target public being focused on can clearly distinguish between fact and opinion.

The Defamation Act of 2013 would change British civil code and eliminate Qualified Privilege for publication. It replaced the Reynold’s Defence (1994) whereby journalists had a responsibility to report allegations even if they were false.  Additionally, it would require serious harm to justify allegations of defamation.  In other words, the claimant must now prove how they suffered serious harm from the defamation. Furthermore, the act clarified defamation on digital publishing platforms. Many argue these laws create an atmosphere of fear that prevents the dissemination of information especially for those within the Communications field who must now communicate with prudence rather than frankly or in the quickest manner. In today’s world of press releases and digital content, accessible all the time, everywhere in the world, it is always important that content is factually correct.

One famous example of digital defamation was the North Wales Child Abuse Scandal that the BBC ran as a story, and which allegedly involved a Conservative politician (McLean 2013). The interesting nature of this case wasn’t that the BBC was guilty of defamation (they were), but that Sally Bercow, a Commons Speaker, tweeted on the matter after watching the story, and then was found guilty of libel as a result of her tweet (Ibid.).

Glib, off the cuff comments without thought seem to be the most at risk for those handling Public Relations, both for their clients and themselves as practitioners. Thus the freedom of speech expressed in the United Kingdom assumes a certain level of responsibility when breaching the sphere of public opinion with external thought, as the absence of it can be an unlawful act. In essence, tweeting, blogging, or traditional publication requires a level of pre-planning and strategy to prevent harmful consequences. An agency or individual in the field may be required to respond quickly in this fast-paced world, and to do so, three rules are suggested for avoiding defamation.

Currently, politicians in the United Kingdom are pursing legislation to further increase penalties for libel and slander, especially in the digital format. David Cameron claims platforms like Twitter “can be used for good. But it can also be used for ill.”, and believes it is the government’s job to intervene when people or organizations use defamation in their benefit. Under proposed legislation, convicted defamers could spend two years in jail (Dailysabah.com 2014). Indeed, it will be a fine line for Cameron to move forward with if he wishes to increase civility in the United Kingdom, as historically, it is a delicate compromise between protecting against defamation and the freedoms of speech while permitting political dissent (Defamation laws in the past [and currently in foreign countries] have been used to silence critics of royalty or government. [e.g. Harry Nicolaides].) (Buncome 2009). The boundry between common speech and defamation is an important but elusive dividing point in communication. Laws on defamation further Britain’s timeless infatuation with defining civility that predates even the oldest English works like Beowulf that has been described  as an allegory of “civilized rage”, and are the foundations of our modern civil society (Labbie and Wymer 2004).

In conclusion, it should come to no surprise that one can seek monetary compensation for defamation. Words have always had a price to pay in British culture.  Shakespeare once penned, "How silver-sweet sound?”, linking Sterlings (silver coins) to the value of words. However, Thomas Carlyle may have stumbled upon the most poignant of advices for communications professionals wanting to avoid defamation, “Speech is silver. Silence is golden. (ESC 2001)”. Defamation law is about equality, like a mirror held up to those of us practicing Public Relations to reflect on our deeds with. Like Alice about to embark upon Wonderland, both na├»ve of its dangers and excited about its wonders. In the end she, like us, gazes into the looking glass and states the obvious, “If tomorrow were today, then I would know what to say!”.


References                                                                                                      


Bloy, D. 2014. Defamation.
Buncombe, A. 2009. Writer jailed for defaming royalty in book that sold seven copies. [online] The Independent. Available at: http://www.independent.co.uk/news/world/asia/writer-jailed-for-defaming-royalty-in-book-that-sold-seven-copies-1451243.html [Accessed 7 Nov. 2014].
Carroll, L., Tenniel, J. 1994. Alice in Wonderland. New York: Book-of-the Month Club.

Cukier, G. 2013. Defamation defence: honest comment or statement of fact?

Dispute Resolution Law Blog. Available at: www.kingsleynapley.co.uk/news-and-events/blogs/dispute-resolution-law-blog/defamation-defence-honest-comment-or-statement-of-fact [Accessed 7 Nov. 2014].

dailysabah.com, 2014. UK to impose strict new punishments for defamation on Internet | MidEast | Daily Sabah. [online] Available at: http://www.dailysabah.com/mideast/2014/10/21/uk-to-impose-strict-new-punishments-for-defamation-on-internet [Accessed 7 Nov. 2014].
ESC, 2001. Re: Silence is golden/Part 2. [online] Phrases.org.uk. Available at: http://www.phrases.org.uk/bulletin_board/8/messages/573.html [Accessed 7 Nov. 2014].
Jones, L. 2012. A Golden Opportunity to End Hate. Undergraduate. University of North Carolina.
Labbie, E. and Wymer, T. 2004. Civilized Rage in Beowulf - The Heroic Age. 7th ed. Bowling Green, Ohio.
Macerlean, N. 2014. Defamation cases up 23pc in UK. [online] Globallegalpost.com. Available at: http://www.globallegalpost.com/big-stories/defamation-cases-up-23pc-in-uk-97633627/ [Accessed 7 Nov. 2014].
Mclean, L. 2014. A basic guide to defamation law for PR practitioners. [online] Mynewsdesk. Available at: http://www.mynewsdesk.com/uk/mynewsdesk/blog_posts/a-basic-guide-to-defamation-law-for-pr-practitioners-19845 [Accessed 7 Nov. 2014].
Price, S. 2014. How to avoid defamation. [online] Inform. Available at: http://inforrm.wordpress.com/2013/11/26/how-to-avoid-defamation-steven-price/) [Accessed 7 Nov. 2014].
Sim v Stretch [1936] 2 All ER 1237, p. 1240.

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