AS TO THE ADMISSIBILITY OF
Application No. 31811/96
by TIMES NEWSPAPERS LIMITED
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 May 1996 by
TIMES NEWSPAPERS LIMITED against the United Kingdom and registered on
11 June 1996 under file No. 31811/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant company, Times Newspapers Limited ("TNL"), is the
publisher of The Times and the Sunday Times. It is represented before
the Commission by its company solicitor, Mr. A.J. Brett.
On 16 April 1992 TNL published a diary piece in the Books section
of the Sunday Times. The article referred to a Mr. Watts, an author
("the author"), and the similarities between his award-winning book and
an unpublished manuscript by another writer. A longer story about the
same subject was published by the Sunday Times on 3 May 1992, with a
photograph.
The author complained in person to TNL about the two articles and
TNL agreed to publish a letter from the author in the Sunday Times.
This was done on 17 May 1992. The letter mentioned that the photograph
was not of the author, and the editorial comment was added "We regret
the error over the photograph".
On 11 June 1992 TNL received a letter from Messrs. Schilling &
Lom ("Schilling & Lom"), solicitors, acting on behalf of another
Mr. Watts, a property developer (the developer). The photograph with
the article of 2 May 1992 had in fact been of the developer. Schilling
& Lom claimed that the publication of the photograph was defamatory and
demanded the publication of an apology, and damages for libel. TNL and
the solicitors exchanged several faxes in order to agree on the wording
of the apology to be published. On 14 June 1992 a revised version of
the apology and the photograph of the developer were published in the
Sunday Times. The apology read as follows:
"Our article (May 3) about the remarkable similarities between
Nigel Watts's novel, The Life Game, and Ann Henning's unpublished
novel, To Hell or to Connaught, was accompanied by a photograph
of a different Nigel Watts (above), a property consultant of
Tunbridge Wells, Kent, thus suggesting that he had plagiarised
the novel and dishonestly won the Betty Trask Literary Award.
We accept that this is without foundation and apologise ..."
Schilling & Lom had insisted on the insertion of the words "The
article together with the photograph alleged that Mr. Watts had
plagiarised the novel and as a result had dishonestly won the Betty
Trask Literary Award".
On 29 July 1992 Schilling & Lom wrote to TNL indicating that they
were now acting for the author and he complained about the two
articles, but also about the apology. TNL wrote back pointing out that
the publication of the author's letter on 17 May 1992 was in
satisfaction of his complaints over the two articles and that the
offending words in the apology had been added to the original version
only on the insistence of Schilling & Lom.
On 29 September 1992 Schilling & Lom commenced libel proceedings
against TNL on behalf of the author. TNL raised several defences,
inter alia that the apology was published in circumstances giving
riseto qualified privilege. On 2 December 1992 TNL obtained leave to
issue a third party notice against Schilling & Lom. The aim of the
third party notice was to obtain an indemnity from Schilling and Lom
against the claim by the author. Schilling & Lom applied to have it
struck out. On 7 October 1993 a High Court judge ordered that the
issue of whether or not the apology was published on an occasion of
qualified privilege should be tried as a preliminary issue. On
21 December 1993 judgment was given on that preliminary issue:
Mr. Justice Morrison held that the apology was not published in
circumstances giving rise to an occasion of qualified privilege for
TNL. He stated in particular:
"... By holding an occasion covered by privilege the court will,
in a sense, be conferring a freedom for a publisher at the
expense of the person defamed. The balance between the 'rights'
of the publisher and the defamed person must reflect the views
of right thinking members of society.
On the one hand a newspaper has an interest in correcting the
mistakes it has made. The public have an interest in receiving
accurate information. Therefore, corrections or apologies should
be encouraged; giving privilege to such occasions would provide
that encouragement. There is also the right of Mr. Watts, the
person defamed by the publication of the wrong photograph. He
had an interest in the newspaper making the correction.
Arguably, if newspapers were not protected by privilege, persons
in the position of Mr. Watts would or might be disadvantaged...
On the other hand, newspapers are in a position of considerable
power and influence in a free democratic society. They can break
the reputations of people about whom they write. Newspapers of
the size and authority of the Sunday Times must carry out their
functions with integrity and a sense of responsibility. ... There
is no evidence ... that newspapers are inhibited from publishing
corrections or apologies because of the fear that by doing so
they might defame a person. There is evidence to the contrary
effect. The Sunday Times required the Plaintiff, as a condition
of publishing his letter defending himself against the accusation
of plagiarisms, that this letter should contain no defamatory
material. In other words, the newspaper does not regard the
'right to reply' as diminished or threatened by such a
requirement. I cannot see why a similar position does not arise
when the newspaper itself is apologising for a defamation. ...
... I can see no good reason why a newspaper should be able to
claim that the publication of an apology is an occasion of
qualified privilege. Such occasions are to protect their private
rights as potential defendants to defamation actions."
On 28 July 1995 the Court of Appeal affirmed the order of
21 December 1993.
On the same day, the Court of Appeal also gave judgment on
Shilling & Lom's appeal against the order of 18 March 1993 which
dismissed their application to have the third party notice struck out.
The Court of Appeal allowed the appeal, and struck out the third party
notice on the ground that although the developer and his solicitors had
taken part in publishing the alleged libel (or had submitted material
published in it), they were nevertheless entitled to the protection of
qualified privilege because the developer as the victim of the attack
was entitled to a right of reply in order to rebut the accusation and
to do so with a considerable degree of latitude, so long as he did not
overstep the bounds and include entirely irrelevant and extraneous
material. The offending words were not unconnected with the theme.
The solicitors' publication was therefore protected by qualified
privilege which furnished then with a complete defence to the third
party proceedings. The third party notice was stuck out.
On 7 December 1995 the House of Lords refused leave to appeal.
COMPLAINTS
TNL complains that the refusal to afford a defence of common law
qualified privilege to its bona fide apology to the developer was in
violation of the Article 10 of the Convention.
Further, TNL complains that the decision of the courts to afford
a defence of common law qualified privilege to Schilling & Lom, the
solicitors for the developer and than for the author, who actually
inserted the defamatory words in the text of apology and were held by
the Court of Appeal to be joint-tortfeasors, but to deny the same
defence on the same occasion it, was a violation of Articles 13 and 14
of the Convention when read in conjunction with Article 10.
THE LAW
1. TNL claims that refusal to afford a defence of a qualified
privilege has caused a violation of its right to freedom of expression.
It alleges violation of Article 10 (Art. 10) of the Convention. This
provision reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
There can only be a violation of Article 10 (Art. 10) of the
Convention if there is an interference with the right to freedom of
expression.
In the present case, the libel action by the author ended when
two preliminary issues had been determined: that is, the findings that
Schilling and Lom had a complete defence of qualified privilege to the
third party notice, and that TNL did not have the defence of qualified
privilege when it published its (allegedly defamatory) apology.
The courts never established whether the apology, or the other
two publications alleged to defame the author, were defamatory or not.
It is therefore not open to TNL to claim that it was penalised
in any way for its publications.
TNL claims, rather, that the denial of qualified privilege in the
case was itself an interference with the right to freedom of
expression, and that no further proceedings were possible on that
question.
The Commission first notes that qualified privilege is a defence
which is expressed to apply in the public interest. As appears from
the judgments in the present case, it is available to a person who
alleges that he has himself been defamed and who is replying to the
alleged defamation (such as the author and/or his solicitors); it is
not available to a newspaper which is publishing that "defamation".
The Commission recalls that Article 10 (Art. 10) of the
Convention guarantees the right to freedom of expression, but also
underlines that the right carries with it duties and responsibilities:
in the context of civil proceedings, its aim is not to prevent persons
who are alleged to have defamed third parties from having to justify
their actions, but rather to ensure that the State strikes a fair
balance in weighing up the interests of the maker and the object of the
statement.
The Commission does not accept TNL's submission that its freedom
of expression was somehow affected by the absence of a defence of
qualified privilege. TNL made the statement (the apology), and the
courts found that it was not made on a privileged occasion. They never
found that the statement was defamatory, and there is no indication
that TNL is slow in publishing apologies because of the absence of
qualified privilege.
No interference with TNL's freedom of expression can therefore
be found in the present case.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. TNL alleges that it has been the victim of discrimination,as the
court has decided to grant the defence of qualified privilege to
Schilling & Lom, TNL's joint-tortfeasors, but not to it. TNL alleges
a violation of Article 14 (Art. 14) of the Convention, taken together
with Article 10 of the Convention. Article 14 (Art. 14) of the
Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) affords
protection against discrimination, that is treating differently,
without an objective and reasonable justification, persons in
"relevantly" similar situations (Eur. Court HR, Fredin v. Sweden
judgment of 18 February 1991, Series A no. 192, p. 19, para. 60).
However, a newspaper publishing an apology is not in the same
position as the plaintiff to defamation proceedings (or his solicitor)
who drafts such an apology: whilst the newspaper is under its ordinary
duty to check its facts before publishing, the aggrieved plaintiff is,
reasonably, entitled to express his opinions in more robust terms, and
still to benefit from qualified privilege because it is in the public
interest that a person should have a right to reply to rebut an
accusation made against him. Moreover, the ultimate decision as to
whether to publish the apology rests solely with the newspaper, which
may prefer to have the matter settled in court if the demands being
made are in its opinion unreasonable having regard to its duties and
responsibilities.
Accordingly, TNL was not in a "relevantly similar" situation to
the plaintiff (and his solicitors), and there was therefore no
discrimination within the meaning of Article 14 (Art. 14) of the
Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, TNL alleges a violation of Article 13 of the Convention,
taken together with Article 10 (Art. 13+10) of the Convention.
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31). In the
present case, the Commission has rejected the substantive claims as
disclosing no appearance of a violation of the Convention. For similar
reasons, they cannot be regarded as "arguable".
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy