Information, secrecy and WikiLeaks
By Mapula Sedutla
Media freedom and access to information were discussed in a session titled ‘Information, secrecy and WikiLeaks’.
Dr Barbara Lauriat, lecturer at the Dickson Poon School of Law at King’s College in England, was the session’s chairperson, while speakers were legal director of the Bertha Foundation in England, Jennifer Robinson; advocate of the Supreme Court of India, Madhavi Divan; head of international advocacy at Privacy International in the United Kingdom (UK), Carly Nyst; and Jan Clements from the legal department of The Guardian and The Observer publications in the UK.
Ms Robinson opened the session by saying that Julian Assange, founder of whistle-blowing website WikiLeaks, had sparked an information revolution, which had implications for freedom of speech around the world. She added that the WikiLeaks website had also opened debates on journalistic ethics in many Commonwealth countries, especially with regard to journalists being forced to reveal their sources. She said that the website provided sources with anonymity. ‘The site has a Dropbox where information can be submitted anonymously,’ she said.
Ms Robinson referred to one of the biggest leaks of United States (US) government material, known as ‘Cablegate’, which was published by WikiLeaks. According to the WikiLeaks website: ‘WikiLeaks began, on Sunday, November 28th 2010, publishing 251 287 leaked United States embassy cables, the largest set of confidential documents ever to be released into the public domain. The documents will give people around the world an unprecedented insight into US government foreign activities’ (http://WikiLeaks.org, accessed 11-5-2013).
She added that WikiLeaks had also sparked political revolutions, such as the Arab Spring in 2010.
In addition, documents leaked via WikiLeaks have been used as evidence in the courts of many jurisdictions, said Ms Robinson.
Ms Robinson added that the role of the media as the fourth estate was to have a ‘confrontational’ relationship with those in power and to be a whistle-blower. She added that the truth had the power to bring greater respect for human rights. She also questioned the implications of the South African Protection of State Information Bill (B6D of 2010) on the media and its sources.
Ms Clements highlighted the importance of freedom of expression and access to information in the context of journalists’ duty to disseminate information. She quoted s 1 of the UK’s Freedom of Information Act 2000 (c36), which states:
‘General right of access to information held by public authorities
(1) Any person making a request for information held to a public authority is entitled –
(a) to be informed in writing … whether it holds information of the description specified … ; and
(b) if that is the case, to have that information communicated to him.’
Ms Clements added that WikiLeaks had led to a new style of journalism, whereby the audience became involved in helping journalists to release sensitive information. However, she said that this was not a substitute for journalists’ work.
‘Journalists take reasonable steps to verify information and ensure what is printed is truthful,’ said Ms Clements.
Ms Divan said this new era of journalism made governments ‘emperors without clothes’ in that governments could no longer hide what they were doing from the public.
Ms Nyst said that charity organisation Privacy International had been raising discussions around the right to information in the last decade. She added that the nature of information had changed during the period, in terms of the type of information that could be collected. She said: ‘We are moving towards a situation where the media can record all sorts of information. … The change means there is a huge revolution in information gathering, which can be attributed to the declining costs in storing data and the increase of publically available data in social networks.’
Ms Nyst said that the impending Protection of State Information Bill was an example of governments wanting to hide information ‘in the name of secrecy and national security’. She added that ‘better, standardised laws’ would assist with the impact of technology.
Defamation law reform: Thresholds, defences and the value of free speech
By Kim Hawkey
In a session on the reform of the law of defamation, which was chaired by Justice Vasheist Kokaram from the Supreme Court in Trinidad and Tobago, South African advocate Gilbert Marcus SC and incoming Commonwealth Lawyers Association President Mark Stephens CBE responded to a presentation by the session’s main speaker, Lord Anthony Lester QC from England.
In opening the session, Justice Kokaram said: ‘In defamation law, the main signpost is the need to balance the right to expression and the right to protect your reputation.’
He added that any discussion on free speech would lead to a discussion on the history and social context, as well as on the responsible use of speech. He said that the aim of the session was to explore the conflict between free speech and protecting reputation and to examine the balancing of freedoms and responsibilities in defamation law and where the tensions between freedom and responsibility often collide.
Free speech and its limits
Lord Lester spoke about the reform of defamation law in the United Kingdom (UK), which he said may be of interest to other Commonwealth countries.
At the outset, Lord Lester said that ‘Commonwealth law reform is much needed’ and noted that many Commonwealth countries had embraced UK laws relating to defamation, including many unnecessarily vague and restrictive criminal and civil interferences with free speech. And, while many of these ‘archaic restrictions’ had been abolished in the UK, such as the recently abolished common law speech offences of criminal libel, seditious libel, blasphemous libel and obscene libel, they still applied in some Commonwealth countries.
One of the outdated laws he referred to was that of scandalising the judiciary, in respect of which he said:
‘I am glad to report that last year the coalition government accepted a proposal by Lord Pannick QC and I to abolish the archaic offence of scandalising the judiciary, following a failed threat by the Attorney-General of Northern Ireland to commit a former Cabinet Minister for criticising a judge.’
In addition, ‘insulting’ had been removed from the offence to use ‘threatening, abusive or insulting words or behaviour’ in the Public Order Act 1986 (c64), as had been done in relation to religious hate speech and homophobic hate speech, he said.
In respect of the current parliamentary reform of civil defamation law in the UK, Lord Lester said that in the past the English law of libel had been largely fashioned by the courts, with parliament ‘having very little to do with it’ until recently. He added that the UK civil defamation law had ‘become a disgrace’.
‘The unsatisfactory state of English defamation law is notorious and well recognised. It led [United States] President Barack Obama to approve a law preventing English libel judgments from being enforced in United States’ courts,’ Lord Lester said.
He said that the country’s Defamation Bill, which at the time of his presentation was in its final stages of passage through parliament, aimed to reform defamation law to redress the balance between free speech and reputation, which was not currently being achieved.
Lord Lester said that the Bill was necessary to give better protection to free expression, while ensuring fairness and responsibility in journalism, and necessary protection of the right to a good reputation, as well as access to justice by the weak against the powerful.
The Bill came about after concerns were raised that the English law of libel served to discourage critical media reporting on matters of serious public interest and that it had a negative impact on freedom of expression, both in the UK and around the world, by imposing unnecessary and disproportionate restrictions on free speech.
Lord Lester said that he, together with the assistance of libel experts and free speech groups, prepared a private member’s Bill, which took more than a year to prepare and which aimed to strike a better balance between the right to reputation and the right to freedom of expression.
After the Bill was given a second reading in the House of Lords in July 2010, the coalition government introduced its own Bill.
‘After pre-legislative scrutiny of my Bill and the draft Bill by a joint parliamentary committee, and a public consultation, the actual Bill was scrutinised in the House of Commons and the House of Lords,’ he said.
Lord Lester said that the aim of the reforms included requiring claimants to demonstrate that they had suffered or were likely to suffer real harm as a result of the alleged defamatory publication, and the Bill introduced a ‘serious harm’ test to enable the courts to eliminate trivial claims.
In respect of defences, he said that the Bill replaced the defences of ‘justification’ and ‘fair comment’ with the defences of ‘truth’ and ‘honest opinion’.
One of the most important features of the Bill, he added, was the new public interest defence, which was broad and would be interpreted and applied by the courts on a case-by-case basis.
The Bill also introduces a single publication rule, which will prevent perpetual liability for internet publications, avoiding a new claim arising each time an internet page is opened. In addition, the Bill contains provisions discouraging ‘libel tourism’.
The draft legislation also restricts the use of juries, abolishing the presumption of a trial by jury, he said.
Lord Lester said that there had been ‘long and hard’ debates about the ability of companies to bring defamation claims. ‘They have reputations, although they do not have feelings – should they be able to sue?’ was one of the questions considered, together with: ‘Should big corporations be restricted in bringing such suits?’
‘As it currently stands, the Bill … restricts the ability of companies and public authorities to bring defamation claims. Companies may sue but must prove serious financial harm or the likelihood of such harm,’ he said, adding that a related aspect was whether a governing body could sue to vindicate its ‘governing reputation’. He referred to a House of Lords decision in which the court had been persuaded that it was contrary to the public interest for institutions of central or local government to be able to sue for libel to vindicate their ‘governing reputation’.
In conclusion, Lord Lester noted that the reform was taking place at a time when the British media were mired in controversy in the wake of the Leveson inquiry into the culture, practice and ethics of the press following the revelations of the ‘phone hacking scandal’, when it emerged that the News of the World had engaged in illegal ‘phone hacking’. However, he said that this ‘should not be allowed to overtake the Defamation Bill’.
He said that the ‘politics’ of the inquiry and subsequent report had led to ‘a number of colleagues deciding to hijack the Defamation Bill’ and supporting amendments to coerce the government into giving statutory effect to the Leveson report, which risked ‘killing’ the Bill.
However, he said that during the period of the Commonwealth Law Conference, the ‘obnoxious amendments that took the Bill hostage were repealed’ and the Bill would ‘be able to become law’. ‘This Bill will be on the statute books by June,’ Lord Lester said.
‘The Bill will make major progress and is worthy of being looked at in other countries,’ he concluded.
The position in South Africa
Mr Marcus commended the UK for its ‘far-reaching and much-needed reform in this area of law’.
‘It will inevitably have reverberations throughout the Commonwealth and is a highly significant development,’ he said before discussing the law of defamation in South Africa.
Mr Marcus said that defamation was a common law, not a statutory, crime in South Africa, with its origins in Roman Dutch law. He highlighted two other distinguishing features of the country’s law of defamation, namely that South Africa has no jury system and the awards for defamation have historically been very low, with ‘little incentive for an applicant wishing to get rich’, he said, noting that the highest award had been in the region of R 200 000.
Mr Marcus said that the ‘impetus’ for his presentation was that, ‘almost without exception, people who believe their reputation has been injured want the record set straight – quickly and with prominence’.
He said that under the Constitution, the courts were obliged when developing the common law to promote the spirit, purport and objects of the Bill of Rights.
There was thus scope for judicial reform for the law of defamation, he said, adding that ‘the courts equally recognised that it was the legislature, not the judiciary, that should be the engine for reform’.
Mr Marcus said that previously an apology was traditionally aimed at mitigating damages, and that the Constitutional Court had ‘given the nod’ to an apology and had recognised its importance in terms of the possibility of restoring dignity without curtailing freedom of speech.
He said that the role of an apology engaged the following three questions:
Mr Marcus said, in his view, he could see a plausible argument that, in an appropriate case, an apology could operate as a defence, especially if the purpose of the suit is vindication. ‘There ought not to be a barrier to apology as a defence,’ he added.
In respect of the latter point, Mr Marcus said that the defendant should be given a choice whether or not to apologise, failing which he or she could pay damages.
In addition, he said that a plaintiff ought to be able to sue for an apology as an alternative to damages.
‘An apology will largely be welcome, some may even be happy with a correction and retraction,’ he said, adding that most editors, when asked to publish a right of reply, did so.
‘This raises questions of whether a plaintiff could sue for a retraction. This may, too, imperil freedom of expression, but there is no reason not to, again, provide a selection,’ he said.
One final area of reform Mr Marcus mentioned briefly related to a declaration of falsity. ‘The law may develop in this area,’ he noted.
In conclusion, Mr Marcus said: ‘These are all plausible developments of our common law. … These are mechanisms that address the overwhelming concern of defamation claimants, which is simply to put the record straight.’
Defamation in the age of the internet
Mr Stephens commended Lord Lester’s advocacy before he began his presentation, in which he focused on the impact of the internet on the balance between free speech and reputation, noting that ‘a lie can make its way around the world rapidly with the internet’.
In doing so, he focused on the following three areas:
Mr Stephens referred to offences that predated the internet, citing this as a motivation for the need for reform. ‘The laws are clearly out of date; this has been recognised,’ he said.
He also cited research that indicated that there was a strong correlation with economic investment in countries with better, progressive libel laws that allow the media to be a watchdog.
In terms of corporations being able to sue for libel, Mr Stephens said that he did not support this: ‘Why should corporations sue for libel? What is a corporation? It is a piece of paper; it has no feelings; it can suffer no harm. If it suffers financial loss, it should be able to sue, but otherwise, I believe quite strongly it should not,’ he said.
He added that it was important to recognise that non-governmental organisations were often the subject of ‘reasonably meritless’ defamation claims by large organisations, which attempted to divert their resources away from, for example, investigations and to obtain their sources. Another reason he was against corporations being able to sue for defamation was that there may be a disparity of means between corporations and vulnerable groups.
In terms of libel matters being determined by juries, he said: ‘I am not sanguine about leaving matters to a judge. … The jury is an important bulwark in the libel courts.’
On the topic of apologies and rights of reply, Mr Stephens noted that both had been used ‘quite effectively’ in some matters, especially if made on a newspaper’s ‘most valuable asset’ – its front page.
In conclusion, Mr Stephens said that Mauritius was currently looking at reforming its libel and media law, noting that its current proposal was ‘interesting’ and, if enacted, would lead to Mauritius having ‘the most progressive media and libel laws in the Commonwealth’. ‘We may want to look at how things develop there,’ he said.
This article was first published in De Rebus in 2013 (June) DR 44.
