AS TO THE ADMISSIBILITY OF
Application No. 14631/89
by TIMES NEWSPAPERS LTD
against the United Kingdom
The European Commission of Human Rights sitting in private on
5 March 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 October 1988
by TIMES NEWSPAPERS LTD against the United Kingdom and registered on
7 February 1989 under file No. 14631/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a newspaper publisher having its principal
office in London. Its newspapers include the daily The Times and the
weekly The Sunday Times. It is represented in the proceedings before
the Commission by its company solicitor, Mr. A.J. Brett.
The facts of the present case, as submitted by the applicant,
may be summarised as follows.
The application arises out of the fact that libel actions are
heard by juries who have unrestricted powers to award damages if the
libel is proved. Section 69(1) of the Supreme Court Act 1981 (which
re-enacted similar provisions in earlier legislation) provides that:
"Where, on the application of any party to an action to be
tried in the Queen's Bench Division, the Court is satisfied
that there is in issue ... a claim in respect of libel,
slander, malicious prosecution or false imprisonment, ... the
action shall be tried with a jury, unless the Court is of the
opinion that the trial requires any prolonged examination of
documents or accounts or any scientific or local investigation
which cannot conveniently be made with a jury."
In such actions the jury is responsible for determining the
amount of damages to be awarded to a successful plaintiff, without any
judicial guidance or official terms of reference. Consequently, the
applicant alleges that the level of damages is unprincipled, arbitrary
and unpredictable, and may often be considered excessive. Recent
large awards include £ 450,000 in the case of Packard v.
Eleftherotypia (3 June 1987), £ 500,000 in the case of Archer v. The
Star (26 July 1987), £ 260,000 in the case of Sethia v. Mail on Sunday
(4 November 1987), £ 300,000 in the case of Freeman v. Stationery
Trade News (17 March 1988), £ 310,000 in the case of Fox & Gibbons v.
Sourakia (13 July 1988), £ 150,000 in the case of Maddocks v. Anglers
Mail (April 1989), £ 600,000 in the case of Sutcliffe v. Private Eye
(May 1989, subsequently reduced on appeal by agreement between the
parties) and £ 1,500,000 in the case of Lord Aldington v. Nikolai
Tolstoy and Nigel Watts (30 November 1989). There is a right of
appeal, but the Court of Appeal does not normally substitute its own
award for that of the jury and can in general only order a re-trial
before another jury with the attendant legal costs and uncertainty.
In Scotland, where jury trials for libel are extremely rare, damages
awards are very modest compared to those awarded in England and Wales.
The applicant refers, inter alia, to domestic case-law
acknowledging the allegedly arbitrary, unpredictable and excessive
nature of jury damages awards. For example in Knuppfer v. London
Express Newspapers Limited <1943> K.B. 80, 85, Lord Justice Mackinnon
in the Court of Appeal commented as follows:
"It is true that damages for defamation may be punitive,
and need not be limited to any actual pecuniary loss
that a victim can prove he has suffered. It is notorious,
however, that juries have often awarded utterly extravagant
sums in such cases."
In McCarey v. Associated Newspapers Ltd. <1965> 2 Q.B. 86,
99B-C and 102A, Lord Justice Pearson in the Court of Appeal referred
to "the well-known propensity of juries to award very large sums in
libel actions" and to "the fact that juries not infrequently award
extravagant sums by way of damages in libel actions". In Ward v.
Jones <1966> 1 Q.B. 273, 299G-300C, Lord Denning in the Court of
Appeal referred to the need for accessibility, uniformity and
predictability in civil damages awards and noted that "none of these
three is achieved when the damages are left at large to the jury".
In 1975, the Faulks Committee on Defamation (Cmnd. 5909)
recommended a number of major changes to the law of libel. In
particular it recommended the following:
"The court as in other actions for tort should have a
general discretion depending on the circumstances of
each case to decide whether or not in the interests of
justice trial should be by judge, with or without a
jury, in default of agreement between the parties as
to the mode of trial.
... the function of the jury as regards damages should
be confined to stating whether these are to be
substantial/moderate/nominal/or contemptuous, and that the
actual amount within the category so stated should be
fixed by the judge.
... In any event the recommendation in the Report of the
Porter Committee should be implemented; namely that the Court
of Appeal should be empowered in actions for defamation to
review the amount of damages awarded and, if they consider
such amount either inadequate or excessive, should have power
to substitute such sum as in their view should in all the
circumstances of the case have been given. This reform would
obviate, in many cases, the necessity of a new trial entailing
great additional expense and anxiety for all parties."
These recommendations were not implemented.
The applicant wrote to the Lord Chancellor requesting that he
consider, on behalf of the Government, amending the law by adopting
the recommendations made by the Faulks Committee and by bringing the
law of defamation in England, Wales and Northern Ireland more closely
into line with the law in Scotland, where jury trials are the
exception. The Lord Chancellor replied in a letter dated 4 October
1988 that the Government had no plans to amend the law, although it
now appears that amendment is under consideration.
COMPLAINTS
The applicant claims that the consequence of the
unpredictability and excessiveness of jury damages awards is that
newspapers, including the applicant's newspapers, tend to become
over-cautious on subjects of legitimate public interest to avoid
potential libel actions, and they are forced to settle libel claims at
wholly unrealistic figures for alleged damage to the plaintiff's
reputation. Moreover, the prospect of large awards of damages has the
effect of inducing newspapers to make insincere statements in open
court apologising for the alleged libel.
The applicant complains of a breach of Article 10 of the
Convention in that the alleged lack of predictability and certainty in
the amount of damages awarded by juries in libel actions constitutes
an unjustifiable restriction on the freedom of expression of
newspapers, including those published by the applicant. In
particular, the applicant contends that the arbitrary, unpredictable
and excessive nature of jury damages awards in the United Kingdom
imposes a "pall of fear and timidity ... upon those who would give
voice to public criticism" and creates an atmosphere in which the
freedoms guaranteed by Article 10 cannot effectively survive (New York
Times Co. v. Sullivan 376 US 254 <1964>; cf. also Eur. Court H.R.,
Handyside judgment of 7 December 1976, Series A no. 24, pp. 22-24,
paras. 48-50, Sunday Times judgment of 26 April 1979, Series A no. 30,
pp. 31, 35-37, paras. 49, 59-60, and Lingens judgment of 8 July 1986,
Series A no. 103, paras. 39, 43-44).
The applicant further complains that it has no effective
remedy against this situation and that there is unreasonable
discrimination in that, in comparison, jury trials for defamation
actions in Scotland are rare. The applicant invokes Articles 13 and
14 of the Convention in conjunction with Article 10.
THE LAW
1. The applicant complains about the inhibiting effect on
newspaper publishers allegedly caused by the fact that juries in
defamation actions determine the level of damages as well as
liability, without any concrete guidelines as to the appropriate
amount to be awarded. It is submitted that this procedure violates
Article 10 (Art. 10) of the Convention, the relevant part of which
provides:
"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 ...
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 ...
for the protection of the reputation or rights of others ..."
The Commission must firstly consider whether the applicant may
claim to be a "victim" of a violation within the meaning of Article 25
(Art. 25) of the Convention, and in that connection it refers to the
case-law of the European Court of Human Rights as regards the notion
of victim:
"Article 25 (Art. 25) does not institute for individuals a kind
of actio popularis for the interpretation of the Convention;
it does not permit individuals to complain against a law
in abstracto simply because they feel that it contravenes
the Convention. In principle, it does not suffice for an
individual applicant to claim that the mere existence of a
law violates his rights under the Convention; it is
necessary that the law should have been applied to his
detriment. Nevertheless, as both the Government and the
Commission pointed out, a law may by itself violate the right
of an individual if the individual is directly affected by the
law in the absence of any specific measures of implementation
...
... The procedural provisions of the Convention must, in view
of the fact that the Convention and its institutions were set
up to protect the individual, be applied in a manner which
serves to make the system of individual applications
efficacious. The Court therefore accepts that an individual
may, under certain conditions, claim to be a victim of
a violation occasioned by the mere existence of secret
measures or of legislation permitting secret measures, without
having to allege that such measures were in fact applied to
him ..."
(Eur. Court H.R., Klass and Others judgment of 6 September
1978, Series A no. 28, paras. 33 and 34)
"Article 25 (Art. 25) of the Convention entitles individuals
to contend that a law violates their rights, in the absence of an
individual measure of implementation, if they run the risk of
being directly affected by it ...
... the applicants are not inviting the court to undertake an
abstract review of rules which, as such, would be incompatible
with Article 25 (Art. 25) ... they are challenging a legal
position ... which affects them personally."
(Eur. Court H.R., Marckx judgment of 13 June 1979, Series A
no. 32, para. 27)
"... The maintenance in force of the impugned legislation
constitutes a continuing interference with the applicant's
right to respect for his private life ... In the personal
circumstances of the applicant, the very existence of this
legislation continuously and directly affects his private
life ... : either he respects the law and refrains from
engaging - even in private with consenting male partners -
in prohibited sexual acts to which he is disposed by reason
of his homosexual tendencies, or he commits such acts and
thereby becomes liable to criminal prosecution."
(Eur. Court H.R., Dudgeon case of 22 October 1981, Series A
no. 45, p. 18, para. 41; Eur. Court H.R., Norris judgment of
26 October 1988, Series A no. 142, pp. 15-16, paras. 28-34)
As regards the present case, the Commission notes that the
applicant does not complain of any arbitrary or excessive award for
defamation made by a jury against any of the newspapers which it
publishes, nor has it referred to any article or statement which it
claims these newspapers have been deterred from publishing as a result
of their fear of a large award of damages being made. The applicant
therefore complains essentially of the general state of the law
relating to jury trial in defamation actions.
The Commission considers that a newspaper publisher could in
certain circumstances be regarded as a victim of a violation of
Article 10 (Art. 10) of the Convention even although no defamation
proceedings had been brought against any of its newspapers, for
example where the law of defamation was at the same time too vague to
allow the risk of proceedings to be predicted. However, in the
present case, the Commission finds that this is not the case. The
applicant has not been able to show with reference to any particular
jury award or to any specific article or statement that its newspapers
have in any respect been inhibited from imparting information.
In these circumstances, the Commission considers that the
applicant cannot be regarded as a "victim" within the meaning of
Article 25 (Art. 25) of the Convention.
Furthermore, the Commission notes that, in contrast to the
situation in the Dudgeon and Norris cases referred to above, in which
the acts concerned were themselves protected under the Convention, the
publication of defamatory material is not as such protected under the
Convention, Article 10 para. 2 (Art. 10-2) of which permits restrictions
on the exercise of freedom of expression inter alia "for the
protection of the reputation or rights of others". The Commission
cannot, therefore, accept that the Convention could be relied upon to
assert a right to publish articles or statements of a defamatory
nature.
This part of the application must, therefore, be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains under Article 13 (Art. 13) of the
Convention, in conjunction with Article 10 (Art. 10). Article 13
(Art. 13) guarantees the right to an effective remedy before a
national authority to everyone whose rights and freedoms under the
Convention are violated. The Commission notes that Article 13
(Art. 13) does not confer a remedy against or a judicial review of
legislation or legal practices which are considered not to be in
conformity with the Convention (cf. Young, James and Webster v. the
United Kingdom, Comm. Report 14.12.79, para. 172). The Commission
recalls that for this Article to apply the claim that a provision of
the Convention has been violated must be "arguable" (Eur. Court H.R.,
Boyle and Rice judgment of 27 April 1988, Series A no. 131, paras.
52-55). The Commission notes that it has rejected the applicant's
complaint under Article 10 (Art. 10) of the Convention as manifestly
ill-founded because the applicant cannot claim to be a victim of a
violation. In these circumstances the Commission does not consider
that the applicant's complaints under that provision can be described
as arguable for the purposes of Article 13 (Art. 13).
It follows that the above complaint under Article 13 (Art. 13)
must also be rejected as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Finally, the applicant complains under Article 14 (Art. 14) in
conjunction with Article 10 (Art. 10) of the Convention, in that newspaper
publishers in Scotland are in a more favourable position than those in
England and Wales, since jury trial in defamation cases is exceptional
in Scotland. Article 14 (Art. 14) of the Convention provides
protection against discrimination in the enjoyment of the rights and
freedoms set forth in the Convention. However the Commission has
already found that the applicant has not been able to demonstrate with
reference to any particular jury award that its newspapers have in any
way been inhibited from imparting information, and in these
circumstances it also finds that the applicant cannot be regarded as a
"victim", within the meaning of Article 25 (Art. 25) of the
Convention, of any discrimination contrary to Article 14 (Art. 14) of
the Convention.
Furthermore, not all differences in treatment amount to
discrimination, provided they have an objective and reasonable basis.
In this connection, the Commission recalls that the mere existence of
a difference in treatment between two jurisdictions does not
constitute an arbitrary difference in treatment or discrimination
(see, for example, No. 11077/84, Dec. 13.10.86, to be published in
D.R. 49). It finds that the applicant has not shown that it has been
discriminated against in any way by virtue of the Scottish system of
defamation litigation.
It follows that this part of the application must similarly be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy