Legal Research

Privacy and Defamation

By John Gregory

??It won?t be possible to reform the law of defamation without ensuring there is some protection for privacy. You can?t wholly separate them.” Sir Alan Beith, MP (UK). Story here.

I read Sir Alan?s comment to focus on the reform element more than on the current law element (though of course it arose because Britain does not have any general statutory right to or duty to maintain privacy. There are some court decisions, including from the European Court of Human Rights.)

English and Welsh law on defamation (I know nothing about the Scottish law on the topic) is quite protective of reputation, in that it presumes that defamatory material is false and it presumes that the person defamed has suffered damage. The defences are fairly narrow, though the courts have been broadening them in the past couple of decades to allow for more immunity for defamation in the public interest.

Sir Alan was likely thinking (I had never heard of the man until this morning, so I have no special access to his mind?) that reform would move in the direction of narrowing liability, i.e. permitting more things to be published about people than the current law of defamation would allow (without liability). The ?chill? of libel law would be reduced. This is generally considered a good thing for freedom of expression, democratic debate, the people?s right to know, and so on.

However, that kind of reform exposes people to greater harm to their reputations. After all, as Nicholas Bohm pointed out, defamation is about unwelcome untruths. (Part of the chill of libel law comes from the difficulty of proving the truth of true statements, mind you, and reform often excuses publication of material that cannot be proved to be true but that still may be true.)

It may help balance people?s feelings of increased exposure to attacks on their reputation in the public interest if they have greater means of protecting exposure of ?unwelcome truths? where there is no legitimate public interest in those truths.

So: reform defamation law to increase the availability of public interest information but reform (create) privacy law to decrease the availability of private interest information. They go hand in hand, both logically and as a marketing strategy.

Does that make sense?

Full post as published by Slaw.ca on August 20, 2010 (boomark / email).