The effect of defamation laws on the rights of members of the public written by Walker Syachalinga, 3rd August 2010

I recently attended a meeting held by my supervisors at the Rights and Justice Centre where I had to present research on the law on defamation. One case that was drawn to my attention during the meeting was that of Greenpeace India and Tata where Tata instituted defamation proceedings against Greenpeace for the use of the Tata logo in a campaign video game launched by Greenpeace. The Greenpeace case and the meeting itself highlighted the delicate balance that exists between the need for NGOs and the public to campaign on contentious issues and the threat of a defamation claim that they often face.

Below is a brief note on the 2006 House of Lords case of Jameel and others v Wall Street Journal Europe [2006] UKHL 44 which constituted part of the research on defamation that I presented during the meeting.

A note on the House of Lords decision in Jameel

In the case of Jameel, the issue on appeal to the House of Lords was whether a trading company called Abdul Latif Jameel Group could sue and recover damages in defamation without proving special damage (special damages are awarded for injury that may result naturally or not unduly remote from the defamatory statement). The second issue related to the “scope and application” of the Reynolds defence. The claim related to an article published in the Wall Street Journal Europe (WSJE) some 5 months after the September 11th attacks alleging that certain prominent Saudi businessmen including the claimant Mr Jameel were under scrutiny by the Saudi and US governments for possible terrorist links.

The House of Lords ruled that corporations could recover damages without proving actual damage as long as they produced evidence of the defamatory remark. It was also held that the WSJE could rely on the Reynolds defence in publishing the article, which was said to be in the public interest. As such, the article though defamatory of the claimant could be published because of the public interest inherent in its content and the steps taken to verify the validity of the content.

1) Corporations and damages
Lord Bingham stated that a corporation could bring an action and recover damages without proving financial or actual damages as long as there was evidence of the alleged defamatory statement. His Lordship invoked South Hetton Co Ltd v North-Eastern News Association Ltd [1894] where it was stated that “whether on a person, a firm, or a company – the law is that damages are at large. It is not necessary to prove any particular damage…” However, Lord Hoffman and Lady Hale (in the minority on this point) disagreed with the above analysis with Lady Hale arguing that allowing corporations to sue without having to prove special damage may have a disproportionate effect on individuals and result in a chilling effect on freedom of expression. She quoted from a case note written by Tony Weir where he argued that “To prefer the interest in maintaining the corporate image to the right of the citizen to say what he reasonably believes to be true is a grim perversion of values.”

2) Reynolds defence and responsible journalism

Reynolds defence
In Reynolds v Times Newspapers Ltd [2001] a list of 10 criteria were established which journalists had to fulfil in order for them to satisfy the court that they had carried out responsible journalism and could therefore rely on the defence of qualified privilege in the event of a defamation claim. The test as set out in Reynolds is that “there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify.” A journalist therefore has to take responsible steps to ensure that the information is “accurate and fit for publication.”

Responsible journalism
Lord Hoffman in Jameel further defined responsible journalism as “the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals…”

Public interest
Lord Hoffman provided some guidance arguing that in ascertaining whether the material is in the public interest “one should consider the article as a whole and not isolate the defamatory statement”.

He added that the point of Reynolds privilege is the public interest inherent in the material coupled with the level of responsibility applied in producing the material.

3) Criticisms of the decision in Jameel
Some of the criticisms of the decision in Jameel include the idea that the decision may have lowered standards of journalism as journalists are no longer required to strictly adhere to the 10 points established in Reynolds. Some commentators have criticised the decision arguing that the court’s answer to the need for serious journalism was to “loosen the definition of responsible.”

Additionally, commentators like Jonathan Coad have written that defamed individuals are left without any redress once a defamatory remark has been published because the privilege “defeats the whole object of libel proceedings which is both to restore the individual’s reputation and to inform the public where untrue allegations have been communicated to them…”

A recent Report by the Culture, Media and Sport Committee of the House of Commons concluded that trading corporations should be required to prove damage when bringing claims in libel or as the Report puts it a ““corporate defamation” should be introduced which would require a corporation to prove actual damage to its business before an action could be brought.” This view was also supported by Kate Beattie who argued that “given modern accounting it is implausible to say that companies could not present evidence of loss.”

4) Reflection
Jameel suggests that individuals should avoid making unverifiable comments or comments which though popular may not necessarily be in the public interest. It is worth pointing out also that the House of Lords in Jameel did not provide a definition for public interest but Lady Hale provided a clue when she argued that “vapid tittle-tattle about footballers wives and girlfriends” could not constitute public interest. Additionally, an individual need not draw up a tick list of steps to take before publishing potentially defamatory remarks. The point to take from Jameel is that provided the remark is in the public interest, that one is careful in gathering the information and also that an attempt to get a response from the subject of the allegation is made then the defamatory remarks can be made. This has however led to criticisms that Jameel has effectively created a “licence to libel.”

“Chilling effect”
However, a lamentable outcome of Jameel is that corporations can sue without proving actual damage. The effect of such a case is that if a local campaigner made a defamatory remark about a large corporation, the corporation would be entitled to sue such an individual irrespective of whether or not any damage or loss would result from the remark. This has the potential of producing a chilling effect on individuals by making them unnecessarily cautious in their attempts to expose bad practice or even argue simple academic points. A case in point is BCA v Simon Singh where the British Chiropractic Association was able to sue the science writer Simon Singh for defamatory remarks he had made in an article for the Guardian. The BCA were not required to prove or even approximate any damage which may have arisen from the remark, all they had to provide was evidence of the defamatory remark. The case is strong evidence for the now belaboured point that the law defamation needs some reform.

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The many faces of the law: legal process, empowerment of the people and commercial interests
By Walker Syachalinga 26th July 2010

As stated in the preceding blog, I recently attended a Court of Appeal hearing which Friends of the Earth is involved in. Before reflecting on what I had observed and any potential implications of the case, I will briefly state the background to the hearing and the arguments raised by both sides. The case was heard by Lords Justice Rix, Etherton and Jackson but a decision is yet to be made. I will update this blog once a decision is made.

Veolia ES Nottinghamshire Limited v Nottinghamshire County Council 2009/2300
*(Friends of the Earth Rights and Justice Centre are acting on behalf a local campaigner who is listed as the “interested party” in the case)

In June 2006, a contract containing commercially confidential information had been signed between Nottinghamshire County Council and Veolia ES Nottinghamshire Ltd, a waste management company. A local campaigner made a request in 2009 under the Audit Commission Act 1998 (ACA) to view the contract and the accompanying accounts. The county council agreed to his request and informed Veolia, the other party to the contract, that they would be releasing the contract including its confidential schedules to the local campaigner. This prompted the waste management company to seek a judicial review of the county council’s decision as they were eager to keep the commercially sensitive schedules of the contract confidential.

Judicial Review
In a judicial review at the High Court, the first instance judge agreed with the council’s decision and ordered the disclosure of the confidential information further to s.15 of the Audit Commission Act 1998. Veolia objected to the disclosure of the contract and “any related accounts” which they claimed contained confidential information and trade secrets which if released could possibly end up in the hands of their competitors and therefore give them a commercial advantage.

At the Court of Appeal
Veolia appealed the outcome of the judicial review contesting that in interpreting the phrase “accounts to be audited” (s. 15(1) ACA 1998); the first instance judge should not have adopted a “much broader approach” and “a wider view” of the section. Counsel for Veolia argued that by adopting a broad interpretation of the section, the judge had widened the number of cases where confidential information could be disclosed.

EU law
Further to this, Veolia also argued that disclosing the confidential information contained in the contract would be contrary to Community law. To support this point, Veolia relied on a case called Varec [2009] All ER (EC) 772 in which the ECJ upheld a company’s right to keep as confidential certain private clauses of a contract submitted during the tendering stage. Additionally, it was argued that confidential information could be treated as a possession within the meaning of Art.1 Protocol 1 of the ECHR. Disclosing the information would therefore destroy the attribute of possession. Lastly, Veolia contended that their participation in the contract constitutes “private life” within the meaning of Art.8 ECHR and that disclosing the contract in its entirety would destroy their entitlement to enjoying this privacy.

Respondent’s reply
The respondents, Nottingham County Council argued that the financial transactions between Veolia and the county council relate to the contract and as such the local campaigner should be entitled to view the statement of accounts as well as the terms of the contract. As regards the Community law points, it was argued that Art.8 (2) permits the disclosure of the confidential information as it was both in accordance with the law and necessary in a democratic society. The right to disclose and inspect such confidential information was said to ensure “proper democratic accountability and transparency in relation to the use of public money.”

Additionally, such disclosure did not constitute a disproportionate interference with the Applicant’s convention rights and Veolia having entered into a contract with a public body ought to have been aware that “various persons acquire statutory rights to inspect certain categories of documents…” In conclusion the council argued that the case of Varec could be distinguished because it related to confidential information supplied during the tender process and subsequent procurement procedures. The present case however, relates to the exercise of statutory rights over a contract which has already been concluded.

Reflection
The case has important implications for the right of members of the public to ensure accountability and transparency in public accounts. The local campaigner whom Friends of the Earth are representing should be entitled to view relevant documents in the possession of a public body because as a rate payer it is his money that the council is using in the contracts it engages in. It is only by looking at the details of the contract terms, even the confidential ones that an assessment would be made of whether the council’s decision to contract with Veolia was a good bargain or not. Additionally, the fact that the actions of the local authority including the private contracts it signs are subject to public scrutiny ensures proper conduct and transparency.

However, the above points have to be balanced with due regard to the necessity to keep certain terms of a contract confidential. This is essential for confidence in commercial transactions and it encourages private companies to enter into contracts with public bodies without fear that their commercial know-how might be compromised. This in turn, it could be argued, would result in improved public services as providers of high quality public services would not be put off at the prospect of having their trade secrets disclosed. There is also some credibility in the argument that widening public access to commercially confidential information would result in abuse by commercial competitors. As argued in Varec, there is nothing to prevent a commercial competitor from using confidential information acquired by a member of the public via the ACA.

Conclusion
It will be interesting to see how the Court of Appeal will balance the need for the public to access information as a way of keeping public bodies in check and the corresponding need to sustain confidence in commercial transactions. The case has also got important implications for media law as the press routinely use statutory provisions as a way of conducting investigative journalism. One would argue that a restrictive approach to such access would limit investigative journalism and the press’s role as society’s watchdog. Perhaps the greatest achievement of the case so far could be the fact that a request triggered by an ordinary member of the public has gone as far as the Court of Appeal. Nottingham County Council should also be applauded for upholding the local campaigner’s request to view the confidential information.

As stated above, I will update this blog on the outcome of the Court of Appeal’s decision.

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Understanding Judicial Review

by Walker Syachalinga 19th July 2010

One of the roles of the (lawyers) at Friends of the Earth is to empower the campaign teams within the organization with the law. In addition to providing legal advice on running effective campaigns to the various teams, the Rights and Justice Centre also takes on cases on behalf of campaigners and members of the public. Such cases range from requests for information from public bodies under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 to the review of actions carried out by public bodies or private companies carrying out public functions.

As part of my role as an intern, I attended a workshop for campaigners conducted by one of my supervising solicitors who also heads up the Rights and Justice Centre. The workshop held for the different campaign groups within FoE was specifically concerned with judicial review as a mechanism for campaigners to achieve their objectives. I therefore decided to blog and reflect on this workshop because of the central role that judicial review plays in public law.

Judicial review
As a starting point, judicial review (JR) has to be approached with caution. Some of the points to be aware of include the low prospect of a JR succeeding, the fact that the final outcome of the review might not change the eventual decision or action of the public body, the huge amounts of time involved in carrying out a JR and the accompanying huge costs that may result from this. Additionally, individuals have to realize that JR is not concerned with whether or not a decision was good or bad, rather it is concerned with whether the decision was reasonable and within the law. These pointers however do not undermine the real value of judicial review which is vital as a mechanism for ensuring accountability and transparency in the manner that public bodies carry out their functions.

Strands of JR
Thus judicial review is a court case that involves the review of actions and decisions of public bodies. It is triggered by any of the following three instances:

a) a public body acting ultra vires i.e. beyond the limits of its legal powers
b) a public body acting illegally
c) a public body being guilty of procedural impropriety

Judicial review can be brought by an individual or group of individuals with a sufficient interest, a feature which makes it an appropriate mechanism for local community action.

Costs
One of the things that campaigners have to keep in mind when bringing judicial reviews is the cost of the review and the possibility of losing. As such campaigners are advised to undertake a protective costs order at the beginning of the JR which is a declaration of the limit in money that the campaigners would pay should they lose the JR. In environmental law cases, this order is strengthened by the provision in the Aarhus Convention which requires that access to justice should not be “prohibitively expensive.” The order therefore ensures that JR cases are responsibly run and money matters are given due consideration.

The objectives of JR
The ultimate aim of a judicial review is to have a public body decision quashed so that the public body can make the decision again. It is however up to the judge to decide whether to take any action or not and this may simply mean the judge advising public bodies on ways that they can carry out their functions lawfully. Secondly, the remedies available are relatively narrow when compared to normal court cases. Thus for the campaigners, JR is a vital tool for acquiring otherwise inaccessible information because public bodies often have to release information during hearings. JR can also be used by campaigners as a threat to remind public bodies to act lawfully as the last option for campaigners is to go court

Timing
It was also emphasized that JR was only possible if promptly brought i.e within three months of the decision or action of the local authority. Additionally, judicial review cases may take up to a year or even longer to conclude and as such “…it is not always possible to prevent the environmental harm from going ahead whilst the case proceeds….” in environmental law cases.

Reflection
The workshop was a helpful reminder of how legal mechanisms can be used to effect change or at least provoke good practice in public bodies. What was interesting about the workshop was that even a somewhat complex mechanism like judicial review can be used by ordinary members of the public and local campaigners when properly advised. This use is however not restricted to private individuals as companies and corporations can bring a claim under JR. The value of JR, in addition to ensuring accountability and transparency, also lies in the fact that it provokes debate and sheds light on other issues which may be kept away from the public.

A case in point is R v Nottinghamshire CC [2009] which Friends of the Earth is currently involved in. The case, triggered by a local campaigner under s 15 of the Audit Commission Act 1998 was first heard as a judicial review before reaching the Court of Appeal in July 2010. On my next blog, I will provide a detailed analysis of this case including the issues considered during the hearing and the role that judicial review played in the whole process.

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Getting involved by Walker Syachalinga 12th July 2010
When I was informed that I’d be undertaking an internship with Friends of the Earth, I was excited for a number of reasons. Firstly, I had waited 7 months for this, having applied to Friends of the Earth Rights and Justice Centre in September 2009, I had not heard back from them until April 2010, at which point I’d almost given up on any hope of getting it. Secondly, the internship would involve environmental law and public law. Public law has always been my favorite subject, so it would have been against my instincts to reject the opportunity of taking up the internship. Thirdly, I was drawn to the strong social ethos at Friends of the Earth. Having worked at the Kent Law Clinic and gained an appreciation of the effects of the law on society, I was keen to work in a team founded on social justice albeit in relation to the environment.

My supervising solicitor informed me that it would be unpaid but that an expenses allowance would be provided which was incidentally enough to cover half of my transport costs. She also alerted me to the fact that because I would be working in a team of three solicitors, my work there would be quite engaging and that I would be expected to get involved at every level of the work. Thus a mere two weeks after my final exam, I joined a team of solicitors and was ready to learn and contribute in whatever way possible.

Week 1 – providing legal support to NGOs at the Bonn Conference
On the first day of the internship, I took part in co-coordinating negotiations taking place at the Bonn Climate Change conference in Germany. Our job as co-coordinators was to provide legal support to NGOs at the conference that had questions about aspects of the Climate Change process. The team of co-coordinators that I was working on consisted of solicitors and barristers who took turns to provide the support to the NGOs via email from the London offices of Simmons & Simmons. Questions posed by the NGOs would be emailed over to us and our role was to research the answers to these questions and email the answers back to our contact at the conference in Germany. Taking part in the co-ordination opened my mind to the realization that legal work takes many shapes and forms and this was one of them. It was particularly interesting to work as a team given that all the people I was working with were drawn from different organizations including Greenpeace and a number of different firms and sets of Chambers in London. As far as the legal aspects of the work was concerned, I wasn’t entirely familiar with the law and procedures involved in climate change so it was my research skills that came in handy.

Week 2 – the Carbon budget bill
In the second week of my internship, one of the main issues I took part in was the Local Carbon Budget bill being developed at Friends of the Earth as part of the Get Serious About CO2 (campaign). This was a very exciting prospect for me having spent the past three years of university looking at statutes in their completed form. The purpose of the bill is to ensure that coordinated action in local authority areas contributes fully to meeting the UK Climate Change Act requirements. Further to the Climate Change Act 2008, the Secretary of State is required to establish a carbon budget which is an outline of the limit of carbon emissions in England for a specified period of time. Friends of the Earth are however proposing to extend the authority to set these budgets to cover local authority areas. It is hoped that this would encourage local authorities to be more proactive in coordinating the reduction of carbon emissions.

My role in the development of the bill was to conduct research on the effects that such a bill would have on the devolved authorities in Scotland, Wales and Northern Ireland. I also had to establish whether the Westminster Parliament had the authority to legislate on the environmental and local government affairs of the devolved nations. Having conducted the research, I drew up a report which I then presented to my supervisors.

Secondly, I took part in a meeting where we discussed how we would make the bill more practical and easier to apply for the local councils. During this process, we discussed drafting explanatory notes which would assist local authorities in interpreting and implementing the bill without seeking further clarification from the Secretary of State. I found this very interesting because until now, I had not thought about the work involved in drafting legislation.

The bill is still being developed and I will provide frequent updates of its progress on this blog. Throughout the process of researching for the bill, I thought back to the times at Kent when we were required to conduct assessments in public law which at times appeared to be so mundane. It has been reassuring therefore that the very skills that I developed during those assessments are the ones which are being applied on this internship. I hope that in subsequent weeks on this blog, I will provide an accurate reflection of the work carried out within the Friends of the Earth Rights and Justice Centre, the contribution that such work makes to society, how the skills I acquired on my degree are being used and also the different ways that I am being challenged.
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1) The elusive internship by Walker Syachalinga, 7th July 2010
There are a lot of discussions at the moment about graduate prospects and whether there is the proverbial light at the end of the degree tunnel. The Guardian recently (reported) that there are now 70 applications to every available vacancy and “that nearly 78% of employers are insisting on a 2.1 degree, rendering a 2.2 marginal…” The article then went on to suggest a wide range of work experiences including that graduates should “consider flipping burgers or shelf stacking to build skills”. But the (article) strongly recommended taking up internships, boldly suggesting that “the only way was unpaid work. ” The value of taking up an internship has never been questioned; the Chartered Institute of Personnel Development (CIPD) recently suggested that “some employers are even using internships as a way of assessing potential new recruits.”

However, the unquestionable value of an internship is compromised by the view that it is only accessible to a select few, namely, that class of privileged middle and upper class students. This is because most internships are unpaid in spite of the fact that most run for a period of 3 to 12 months. This fact, it is alleged, hampers social mobility and condemns students with limited means to very limited access to certain professions as they are put off from undertaking an internship. Organizations such as the National Union of Students and the Trade Union Congress have argued for paid internships alleging that “in the absence of any remuneration, there is potential for an intern to be exploited.” On the other hand, the government through reports such as the Milburn Report, have suggested that the long term benefits of undertaking an internship in terms of career prospects and potential high earnings justify the current system of unpaid internships .

The above arguments are further compounded by the report in December 2009 in the Telegraph, that some (internships) are on offer for up to £8 000 through recruitment agencies. Additionally, the NewStatesman recently reported that an auction was held at Oxford University where individuals had to pay £300 to take part in the bids and among the “items on offer” where a mini-pupilage at One Essex Court with Neil Kitchener QC and one public relations & marketing internship at the London office of fashion house, Escada. Thus (Laura Pennie) writing for the NewStatesman rather apocalyptically concluded that “Any graduate or school-leaver without the means to support themselves in London while working for free can currently forget about a career in journalism, politics, the arts, finance, the legal profession or any of a number of other sectors whose business models are now based around a lower tier of unpaid labour.” I wouldn’t put it so bleakly.

Where does all this leave me?
Reading the above articles made me reflect on the reality of my own internship and the cost at which it had come. Like most internships available in London, mine is unpaid, a fact which has left me to fund my transport and other costs by taking up part-time employment on weekends. Additionally, I was fortunate to have been offered the option of either turning up five days a week or three days a week in order to save on costs as well as an expenses allowance which accounts for half of my travel costs. I opted for the three day a week option mostly due to the cost of transport from my home in Kent to the Friends of the Earth offices in London. FoE are currently looking at ways in which they could provide paid placements in order to minimise the burdens that unpaid internships may have on students. But I’m not alone in this, a university friend of mine, had to consider transport as well as accommodation costs in order to undertake his mini-pupilage in London. What is my view on the current state of internships, should they be funded as the CIPD suggests and are they as invaluable as most people suggest? I cannot provide an immediate answer to these questions but I will draw my conclusions in subsequent blogs as I reflect on my experiences during my three month internship at Friends of the Earth.