Right to reputation and freedom of speech (from which freedom of press derives) are two rights that have an unusual relation as the strict application of the first one renders impossible the existence of the second, and vice versa. The simultaneous application of these two rights makes it compulsory to create a fair balance between them. The last decade in England has been a period of evolution for defamation law. These evolutions have consequently profoundly changed the balance between those two rights.
In order to analyze this evolution and its outcome, we will examine the balance drawn by the English legal system before the rise of the notion of ‘responsible journalism'; subsequently, we will look at the evolution of this balance from Reynolds v Times Newspapers Ltd to its more recent expansion in Michael Charman v Orion Publishing and Graeme McLagan. Finally, we will, in light of the two precedent sections, examine whether or not responsible journalism maintains a balance between freedom of expression and the right to protect a reputation.
‘The media are adequately protected by the defences of justification and fair comment at the moment, and it is salutary that these defences are available to them only if they have got their fact substantially correct' .
[...] Before the rise of ‘responsible journalism', the balance developed by English law between freedom of speech and right to protect a reputation used to be significantly in favor of the right to protect a reputation. Reynolds v Times Newspapers Ltd[8], marked the beginning of a big trend for journalists and the media in general. We will now analyze how that evolution started and is continued nowadays After the publication of an article in the Sunday Times stating among other things, that he lied to his party and withheld information from his ministry, Albert Reynolds, former Prime Minister of the Republic of Ireland sued the Sunday Times for libel. [...]
[...] Media Law, a practical guide to managing publication risks. 1st edition. London. Sweet & Maxwell Ltd. Price, D. & Duodu, K. (2004). Defamation law, procedure and practice. 3rd edition. London. Sweet & Maxwell Ltd. Carey, P. & Sanders, J. (2004). Media Law. 3rd edition. [...]
[...] London. Sweet & Maxwell Ltd. Barendt, E. (2005). Freedom of Speech. 2nd edtion. Oxford. Oxford University Press. Cooke, J. (2007). Law of Tort. 8th edition. Harlow. Pearson Education Ltd. Waever, Russell L. Kenyon, Andrew T. [...]
[...] Reynolds v Times Newspapers Ltd [1998] 3 WLR 1010 Michael Charman v Orion Publishing and Graeme McLagan [2007] EWCA Civ 972 The Report of the Supreme Court Procedure Committee on Practice and Procedure in Defamation, July 1991. Code of Conduct, ratified by the British National Union of Journalist 29th June 1994 Slade J in Longdon-Griffiths v Smith [1951] 1 KB 295 Adam v Ward [1917] AC 309 Libel and the Media: the Chilling Effect. By Eric Barendt Reynolds v Times Newspaper Ltd [1998] 3 WLR 1010 Freedom of Speech, By Eric Brendt. P 2nd Editions. Oxford University Press. [...]
[...] Thus, journalist and media in general do not always have the capacity to prove a statement, and they will be judged liable of defamation even if they were reporting true but provable information. The second absolute defence available to journalist was the defence of the ‘fair comment'. The ‘fair comment defence' is conditioned by the existence of five elements which are that the statement must be a comment, fair, based on fact, on a matter of public interest, and made without malice. [...]
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