Derbyshire County Council (Appellants)
v.
Times Newspapers Limited and others (Respondents)
JUDGMENT
Die Jovis 18° Februarii 1993
Upon Report from the Appellate Committee to whom was
referred the Cause Derbyshire County Council against Times
Newspapers Limited and others, That the Committee had heard
Counsel as well on Monday the 7th as on Tuesday the 8th,
Wednesday the 9th and Thursday the 10th days of December last
upon the Petition and Appeal of Derbyshire County Council of
County Offices, Matlock, Derbyshire DE4 3AG, praying that the
matter of the Order set forth in the Schedule thereto, namely an
Order of Her Majesty’s Court of Appeal of the 19th day of
February 1992, might be reviewed before Her Majesty the Queen in
Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen in
Her Court of Parliament might seem meet; as upon the case of
Times Newspapers Limited, Andrew Neil, Peter Hounam and Rosemary
Collins lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side in
this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of Appeal
of the 19th day of February 1992 complained of in the said Appeal
be, and the same is hereby, Affirmed and that the said Petition
and Appeal be, and the same is hereby, dismissed this House: And
it is further Ordered. That the Appellants do pay or cause to be
paid to the said Respondents the Costs incurred by them in
respect of the said Appeal, the amount thereof to be certified
by the Clerk of the Parliaments if not agreed between the
parties.
Cler: Parliamentor:
Judgment: 18 February 1993
HOUSE OF LORDS
DERBYSHIRE COUNTY COUNCIL
(APPELLANTS)
v.
TIMES NEWSPAPERS LIMITED AND OTHERS
(RESPONDENTS)
Lord Keith
Lord Griffiths
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Woolf
LORD KEITH OF KINKEL
My Lords,
This appeal raises, as a preliminary issue in an action of damages for
libel, the question whether a local authority is entitled to maintain an action
in libel for words which reflect on it in its governmental and administrative
functions. That is the way the preliminary point of law was expressed in the
order of the Master, but it has opened out into an investigation of whether a
local authority can sue for libel at all.
Balcombe L.J., giving the leading judgment in the Court of Appeal,
summarised the facts thus:
“The facts in the case are fortunately refreshingly simple. In two
issues of ‘The Sunday Times’ newspaper on 17 and 24 September 1989
there appeared articles concerning share deals involving the
superannuation fund of the Derbyshire County Council. The articles
in the issue of 17 September were headed ‘Revealed: Socialist
tycoons’s deals with a Labour chief and ‘Bizarre deals of a council
leader and the media tycoon’: that in the issue of 24 September was
headed ‘Council share deals under scrutiny.’ The council leader was
Mr. David Melvyn Bookbinder; the ‘media tycoon’ was Mr. Owen
Oyston. It is unnessary for the purposes of this judgment to set in any
detail the contents of these articles: it is sufficient to say they question
the propriety of certain investments made by the council of moneys in
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its superannuation fund, with Mr. Bookbinder as the prime mover, in
three deals with Mr. Oyston or companies controlled by him.
Excerpts from the articles giving the flavour of the allegations made
will be found in the judgment at first instance [1991] 4 All E.R. 795
to which those interested may refer. The council is the ‘administering
authority’ of its superannuation fund under the Superannuation Act
1972 and the Local Government Superannuation Regulations 1986 (S.I.
1986 No. 24) made thereunder.”
Following the publication actions of damages for libel were brought
against the publishers of The Sunday Times, its editor and the two journalists
who wrote the articles by Derbyshire County Council (“the appellants”), Mr.
Bookbinder and Mr. Oyston. Mr. Oyston’s action was settled by an apology
and payment of damage and costs. The statements of claim in this action by
the appellants and in that by Mr. Bookbinder are for all practical purposes in
identical terms. That of the appellants asserts in paragraph 6 that there were
written and published “of and concerning the council and of and concerning
the council in the way of its discharge of its responsibility for the investment
and control of the superannuation fund” the words contained in the article of
17 September, and paragraph 8 makes a similar assertion in relation to the
article of 24 September. Paragraph 9 states:
“By reason of the words published on 17 September 1989 and the
words and graph published on 24 September 1989 the plaintiff council
has been injured in its credit and reputation and has been brought into
public scandal, odium and contempt, and has suffered loss and
damage.”
No special damage is pleaded. On 31 July 1991 French J. refused an
application by the appellants to amend the statement of claim so as to plead
a certain specific item of special damage.
The preliminary point of law was tried at first instance before Morland
J. who on 15 March 1991 decided it in favour of the appellants (1991 4 All
E.R. 795). However, on appeal by the present respondents his judgment was
reversed by the Court of Appeal (Balcombe, Ralph Gibson and Butler-Sloss
L.JJ.) on 19 February 1992 [1992] Q.B. 770. The appellants now appeal,
with leave given in the Court of Appeal, to your Lordships’ House.
There are only two reported cases in which an English local authority
has sued for libel. The first is Manchester Corporation v. Williams [1891] 1
Q.B. 94: 63 L.T. 805. The defendant had written a letter to a newspaper
alleging that “in the case of two if not three departments of our Manchester
city council, bribery and corruption have existed and done their nefarious
work.” A Divisional Court consisting of Day J. and Lawrance J. held that the
statement of claim disclosed no cause of action. The judgment of Day J. at
p. 96 of the Queen’s Bench report is in these terms:
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“This is an action brought by a municipal corporation to recover
damage for what is alleged to be a libel on the corporation itself, as
distinguished from its individual members or officials. The libel
complained of consists of a charge of bribery and corruption. The
question is whether such an action will lie. I think it will not. It is
altogether unprecedented, and there is no principle on which it can be
founded. The limits of a corporation’s right of action for libel are
those suggested by Pollock C.B. in the case which has been referred
to. A corporation may sue for a libel affecting property, not for one
merely affecting personal reputation. The present case falls within the
latter class. There must, therefore, be judgment for the defendant.”
Lawrance J. said that he was of the same opinion.
The Law Times report contains a somewhat longer judgment of Day
J. in these terms:
“This action is brought by the mayor, aldermen, and citizens of the
city of Manchester to recover damages from the defendant in respect
of that which is alleged by them to be a libel on the corporation. The
alleged libel is contained in a letter written by the defendant to the
editor of the ‘Manchester Examiner and Times’, which charged, as
alleged by the statement of claim, that bribery and corruption existed
or had existed in three departments of the Manchester City Council,
and that the plaintiffs were either parties thereto or culpably ignorant
thereof, and that the said bribery and corruption prevailed to such an
extent as to render necessary an inquiry by a parliamentary
commission. Now it is for us to determine whether a corporation can
bring such an action, and I must say that, to my mind, to allow such
a thing would be wholly unprecedented and contrary to principle. A
corporation may sue for a libel affecting property, not for one merely
affecting personal reputation. This does not fall within the class of
case in respect of which a corporation can maintain an action, but does
fall within the second class commented on by Pollock C.B. in his
judgment in the case of the Metropolitan Saloon Omnibus Co. Ltd. v.
Hawkins, 4 H. & N. 87, with which I fully agree [a quotation follows]
The charge in the present case is one of bribery and corruption, of
which a corporation cannot possibly be guilty, and therefore, in my
opinion, this action will not lie.”
It is likely that the Law Reports version of his judgment was one revised by
Day J., in which he omitted the sentence which ends the Law Times report,
so that the true and only ratio of the decision is that a corporation may sue for
a libel affecting property, but not for one merely affecting personal reputation.
Metropolitan Saloon Omnibus Co. Ltd. v. Hawkins (1859) 4 H. & N.
87 was an action by a company incorporated under the Joint Stock Companies
Act 1856 in respect of a libel imputing to it insolvency, mismanagement and
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dishonest carrying on of its affairs. The Court of the Exchequer held the
action to be maintainable. Pollock C.B. said at p. 770, in the passage
referred to by Day J.:
“That a corporation at common law can sue in respect of a libel there
is no doubt. It would be monstrous if a corporation could maintain no
action for slander of title through which they lost a great deal of
money. It could not sue in respect of an imputation of murder, or
incest, or adultery, because it could not commit those crimes. Nor
could it sue in respect of a charge of corruption, for a corporation
cannot be guilty of corruption, although the individuals composing it
may. But it would be very odd if a corporation had no means of
protecting itself against wrong; and if its property is injured by slander
it has no means of redress except by action. Therefore it appears to
me clear that a corporation at common law may maintain an action for
a libel by which its property is injured.”
In South Hetton Coal Co. Ltd. v. North-Eastern News Association Ltd.
[1894] 1 Q.B. 133 a newspaper had published an article alleging that the
houses in which the company accommodated its colliers were in a highly
insanitary state. The Court of Appeal held that the company was entitled to
maintain an action for libel without proof of special damage, in respect that
the libel was calculated to injure the company’s reputation in the way of its
business. Lord Esher M.R. said at p. 138:
“I have considered the case, and I have come to the conclusion that the
law of libel is one and the same as to all plaintiffs; and that, in every
action of libel, whether the statement complained of is, or is not, a
libel, depends on the same question – viz., whether the jury are of
opinion that what has been published with regard to the plaintiff would
tend in the minds of people of ordinary sense to bring the plaintiff into
contempt, hatred, or ridicule, or to injure his character. The question
is really the same by whomsoever the action is brought – whether by
a person, a firm, or a company. But though the law is the same, the
application of it is, no doubt, different with regard to different kinds
of plaintiffs. There are statements which, with regard to some
plaintiffs, would undoubtedly constitute a libel, but which, if published
of another kind of plaintiffs, would not have the same effect.”
He went on to say that certain statements might have the same effect, whether
made with regard to a person, or a firm, or a company, for example
statements with regard to conduct of a business, and having elaborated on the
question whether or not a particular statement might reflect on the manner of
conduct of a business, continued at p. 139:
“With regard to a firm or a company, it is impossible to lay down an
exhaustive rule as to what would be a libel on them. But the same
rule is applicable to a statement made with regard to them. Statements
– 4 –
may be made with regard to their mode of carrying on business, such
as to lead people of ordinary sense to the opinion that they conduct
their business badly and inefficiently. If so, the law will be the same
in their case as in that of an individual, and the statement will be
libellous. Then, if the case be one of libel – whether on a person, a
firm, or a company – the law is that the damages are at large. It is not
necessary to prove any particular damage; the jury may give such
damages as they think fit, having regard to the conduct of the parties
respectively, and all the circumstances of the case.”
In National Union of General and Municipal Workers v. Gillian [1946]
K.B. 81 the Court of Appeal held that a trade union could, in general,
maintain an action in tort, and that an action for libel was no exception to that
rule. No detailed consideration was given to the nature of the statements in
respect of which the action might lie, though Scott L.J. at p. 87 referred to
the disintegration of a trade union which might result from a libel, and
Uthwatt J. at p. 88 said that he saw no reason why a non-trading corporation
should not have the same rights as a trading corporation as respects
imputations on the conduct by it of its activities.
The second case involving proceedings by a local authority is Bognor
Regis Urban District Council v. Campion [1972] 2 Q.B. 169, a decision of
Browne J. Mr. Campion had distributed at a meeting of a ratepayers’
association a leaflet savagely attacking the council, which sued him for
libel. At the trial Mr. Campion conducted his own case without the assistance
of solicitors or counsel. Browne J. found in favour of the council and
awarded it damages of £2000. At p. 173 he stated his intention to apply a
principle to be found in National Union of General and Municipal Workers v.
Gillian, from which he quoted extensively in the following pages. He
continued at p. 175:
“Just as a trading company has a trading reputation which it is entitled
to protect by bringing an action for defamation, so in my view the
plaintiffs as a local government corporation have a ‘governing’
reputation which they are equally entitled to protect in the same way –
of course, bearing in mind the vital distinction between defamation of
the corporation as such and defamation of its individual officers or
members. I entirely accept the statement made in Gatley on Libel and
Slander, 6th ed. (1967), p. 409. para. 890:
‘A corporation or company cannot maintain an action of libel
or slander for any words which reflect, not upon itself, but
solely upon its individual officers or members.’
“Then there is a quotation:
‘To merely attack or challenge the rectitude of the officers or
members of a corporation, and hold them or either of them up
– 5 –
to scorn, hatred, contempt, or obloquy for acts done in their
official capacity, or which would render them liable to criminal
prosecution, does not give the corporation a right of action for
libel.’
“I stress the words ‘solely’ and ‘merely’ in those passages. The
quotation given in Galley there is from a United States case, Warner
v. Ingersoll (1907) 157 Fed. R. 311.”
Browne J. then proceeded to consider Manchester Corporation v. Williams,
and after quoting from the judgment of Day J. in the Law Times Report said
at p. 177:
“Day J. seems to put his judgment on two grounds; first, that a
corporation may sue for a libel affecting property and not for one
merely affecting personal reputation. If this was ever right, it has in
my view been overruled by South Hetton Coal Co. v. North-Eastern
News Association Ltd. [1894] 1 Q.B. 133, 134, 135 (where
substantially this argument was used by the defendants) and by
National Union of General and Municipal Workers v. Gillian (where
the Manchester Corporation case [1891] 1 Q.B. 94 was cited). The
other ground seems to have been that a corporation cannot be guilty of
corruption and therefore it cannot be defamatory to say or write that
it has been guilty of corruption. This was based on the obiter dictum
of Pollock C.B. in Metropolitan Saloon Omnibus Co. v. Hawkins 4 H.
& N. 87 and was repeated later by Lopes L.J. in South Hetton Coal
Co. v. North-Eastern News Association Ltd. [1894] 1 Q.B. 133, 141.
The Manchester Corporation case is severely criticised in Spencer
Bower on Actionable Defamation (1908), pp. 279 and 280; in Fraser
on Libel and Slander, 7th ed. (1936), pp. 89 and 90; and by Oliver J.
in Willis v. Brooks [1947] 1 All E.R. 191 where he said, at p. 192,
that after reading the National Union of General and Municipal
Workers case he agreed with the editors of Fraser, who say, at p. 90:
‘It is respectfully submitted that the above statement of the law
by Day J. … is unsound in principle and would not be upheld
in the Court of Appeal.’
“Oliver J. in Willis v. Brooks [1947] 1 All E.R. 191, 193 said:
‘Counsel for the defendants’ – who incidentally were Sir
Valentine Holmes and Mr. Milmo – ‘did not seriously contend
that an action for libel imputing something very like corruption,
as in this case, would not lie in any circumstances at the suit of
a trade union.’
and he awarded the plaintiffs £500 damages. As I have said, the
Manchester Corporation case was cited in the National Union of
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General and Municipal Workers case and the libel in that case seems
to have imputed among other things something very like corruption.”
Finally, he said, at p. 178:
“The actual decision in the Manchester Corporation case can perhaps
be supported, as Mr. Waterhouse suggested, on the argument that the
libel there was not capable of referring to a corporation consisting (as
the plaintiffs did) of the mayor, aldermen and citizens, and not, as
here, of the chairman and councillors. I think that that case is
distinguishable from this on that ground, and also on the ground that
in my view none of the statements in the leaflet in this case actually
impute corruption. But I hope that the Court of Appeal will soon have
occasion to consider the Manchester Corporation case.”
It is to be observed that Browne J. did not give any consideration to
the question whether a local authority, or any other body exercising
governmental functions, might not be in a special position as regards the right
to take proceedings for defamation. The authorities cited above clearly
establish that a trading corporation is entitled to sue in respect of defamatory
matters which can be seen as having a tendency to damage it in the way of its
business. Examples are those that go to credit such as might deter banks from
lending to it, or to the conditions experienced by its employees, which might
impede the recruitment of the best qualified workers, or make people reluctant
to deal with it. The South Hetton Coal Company case would appear to be an
instance of the latter kind, and not, as suggested by Browne J., an authority
for the view that a trading corporation can sue for something that does not
affect it adversely in the way of its business. The trade union cases are
understandable upon the view that defamatory matter may adversely affect the
union’s ability to keep its members or attract new ones or to maintain a
convincing attitude towards employers. Likewise in the case of a charitable
organisation the effect may be to discourage subscribers or otherwise impair
its ability to carry on its charitable objects. Similar considerations can no
doubt be advanced in connection with the position of a local authority.
Defamatory statements might make it more difficult to borrow or to attract
suitable staff and thus affect adversely the efficient carrying out of its
functions.
There are, however, features of a local authority which may be
regarded as distinguishing it from other types of corporation, whether trading
or non-trading. The most important of these features is that it is a
governmental body. Further, it is a democratically elected body, the electoral
process nowadays being conducted almost exclusively on party political lines.
It is of the highest public importance that a democratically elected
governmental body, or indeed any governmental body, should be open to
uninhibited public criticism. The threat of a civil action for defamation must
inevitably have an inhibiting effect on freedom of speech. In City of Chicago
v. Tribune Co. (1923) 139 N.E. 86 the Supreme Court of Illinois held that the
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City could not maintain an action of damages for libel. Thompson C.J. said
at p. 90:
“The fundamental right of freedom of speech is involved in this
litigation, and not merely the right of liberty of the press. If this
action can be maintained against a newspaper it can be maintained
against every private citizen who ventures to criticize the ministers
who are temporarily conducting the affairs of his government. Where
any person by speech or writing seeks to persuade others to violate
existing law or to overthrow by force or other unlawful means the
existing government, he may be punished but all other utterances or
publications against the government must be considered absolutely
privileged.
While in the early history of the struggle for freedom of speech the
restrictions were enforced by criminal prosecutions, it is clear that a
civil action is as great, if not a greater, restriction than a criminal
prosecution. If the right to criticise the government is a privilege
which, with the exceptions above enumerated, cannot be restricted,
then all civil as well as criminal actions are forbidden. A despotic or
corrupt government can more easily stifle opposition by a series of
civil actions than by criminal prosecutions.”
After giving a number of reasons for this, he said:
“It follows, therefore, that every citizen has a right to criticise an
inefficient or corrupt government without fear of civil as well as
criminal prosecution. This absolute privilege is founded on the
principle that it is advantageous for the public interest that the citizen
should not be in any way fettered in his statements, and where the
public service or due administration of justice is involved he shall have
the right to speak his mind freely.”
These propositions were endorsed by the Supreme Court of the United States
in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 277. While these
decisions were related most directly to the provisions of the American
Constitution concerned with securing freedom of speech, the public interest
considerations which underlaid them are no less valid in this country. What
has been described as “the chilling effect” induced by the threat of civil
actions for libel is very important. Quite often the facts which would justify
a defamatory publication are known to be true, but admissible evidence
capable of proving those facts is not available. This may prevent the
publication of matters which it is very desirable to make public. In Hector v.
Attorney-General of Antigua and Barbuda [1990] 2 A.C. 312 the Judicial
Committee of the Privy Council held that a statutory provision which made
the printing or distribution of any false statement likely to undermine public
confidence in the conduct of public affairs a criminal offence contravened the
– 8 –
provisions of the constitution protecting freedom of speech. Lord Bridge of
Harwich said at p. 318:
“In a free democratic society it is almost too obvious to need stating
that those who hold office in government and who are responsible for
public administration must always be open to criticism. Any attempt
to stifle or fetter such criticism amounts to political censorship of the
most insidious and objectionable kind. At the same time it is no less
obvious that the very purpose of criticism levelled at those who have
the conduct of public affairs by their political opponents is to
undermine public confidence in their stewardship and to persuade the
electorate that the opponents would make a better job of it than those
presently holding office. In the light of these considerations their
Lordships cannot help viewing a statutory provision which criminalises
statements likely to undermine public confidence in the conduct of
public affairs with the utmost suspicion.”
It is of some significance to observe that a number of departments of
central government in the United Kingdom are statutorily created corporations,
including the Secretaries of State for Defence, Education and Science, Energy,
Environment and Social Services. If a local authority can sue for libel there
would appear to be no reason in logic for holding that any of these
departments (apart from two which are made corporations only for the
purpose of holding land) was not also entitled to sue. But as is shown by the
decision in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1
A.C. 109, a case concerned with confidentiality, there are rights available to
private citizens which institutions of central government are not in a position
to exercise unless they can show that it is the public interest to do so. The
same applies, in my opinion, to local authorities. In both cases I regard it as
right for this House to lay down that not only is there no public interest
favouring the right of organs of government, whether central or local, to sue
for libel, but that it is contrary to the public interest that they should have it.
It is contrary to the public interest because to admit such actions would place
an undesirable fetter on freedom of speech. In Die Spoorbond v. South
African Railways (1946) S.A.L.R. 999 the Supreme Court of South Africa
held that the South African Railways and Harbours, a governmental
department of the Union of South Africa, was not entitled to maintain an
action for defamation in respect of a publication alleged to have injured its
reputation as the authority responsible for running the railways. Schreiner
J.A. said at pp. 1012-1013:
“I am prepared to assume, for the purposes of the present argument,
that the Crown may, at least in so far as it takes part in trading in
competition with its subjects, enjoy a reputation, damage to which
could be calculated in money. On that assumption there is certainly
force in the contention that it would be unfair to deny to the Crown the
weapon, an action for damages for defamation, which is most feared
by calumniators. Nevertheless it seems to me that considerations of
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fairness and convenience are, on balance, distinctly against the
recognition of a right in the Crown to sue the subject in a defamation
action to protect that reputation. The normal means by which the
Crown protects itself against attacks upon its management of the
country’s affairs is political action and not litigation, and it would, I
think, be unfortunate if that practice were altered. At present certain
kinds of criticism of those who manage the State’s affairs may lead to
criminal prosecutions, while if the criticism consists of defamatory
utterances against individual servants of the State actions for
defamation will lie at their suit. But subject to the risk of these
sanctions and to the possible further risk, to which reference will
presently be made, of being sued by the Crown for injurious
falsehood, any subject is free to express his opinion upon the
management of the country’s affairs without fear of legal
consequences. I have no doubt that it would involve a serious
interference with the free expression of opinion hitherto enjoyed in this
country if the wealth of the State, derived from the State’s subjects,
could be used to launch against those subjects actions for defamation
because they have, falsely and unfairly it may be, criticised or
condemned the management of the country. Such actions could not,
I think, be confined to those brought by the Railways Administration
for criticism of the running of the railways. Quite a number of
Government departments, as appeared in the course of the argument,
indulge in some form of trading on a greater or a lesser scale.
Moreover, the Government, when it raises loans, is interested in the
good or bad reputation that it may enjoy among possible subscribers
to such loans. It would be difficult to assign any limits to the Crown’s
right to sue for defamation once its right in any case were recognised.”
These observations may properly be regarded as no less applicable to a local
authority than to a department of central government. In the same case
Watermeyer C.J. at p. 1009 observed that the reputation of the Crown might
fairly be regarded as distinct from that of the group of individuals temporarily
responsible for the management of the railways on its behalf. In the case of
a local authority temporarily under the control of one political party or another
it is difficult to say that the local authority as such has any reputation of its
own. Reputation in the eyes of the public is more likely to attach itself to the
controlling political party, and with a change in that party the reputation itself
will change. A publication attacking the activities of the authority will
necessarily be an attack on the body of councillors which represents the
controlling party, or on the executives who carry on the day to day
management of its affairs. If the individual reputation of any of these is
wrongly impaired by the publication any of these can himself bring
proceedings for defamation. Further, it is open to the controlling body to
defend itself by public utterances and in debate in the council chamber.
The conclusion must be, in my opinion, that under the common law
of England a local authority does not have the right to maintain an action of
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damages for defamation. That was the conclusion reached by the Court of
Appeal, which did so principally by reference to Article 10 of the European
Convention on Human Rights, to which the United Kingdom has adhered but
which has not been enacted into domestic law. Article 10 is in these terms:
“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, 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.”
As regards the words “necessary in a democratic society” in connection with
the restrictions on the right to freedom of expression which may properly be
prescribed by law, the jurisprudence of the European Court of Human Rights
has established that “necessary” requires the existence of a pressing social
need, and that the restrictions should be no more than is proportionate to the
legitimate aim pursued. The domestic courts have “a margin of appreciation”
based upon local knowledge of the needs of the society to which they belong.
(The Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 254; Barthold v.
Germany (1985) 7 EHRR 383: Lingens v. Austria (1986) 8 EHRR 407,
418). The Court of Appeal approached the matter upon the basis that the law
of England was uncertain upon the issue lying at the heart of the case, having
regard in particular to the conflicting decisions in Manchester Corporation v.
Williams and Bognor Regis U.D.C. v. Campion and to the absence of any
relevant decision in the Court of Appeal or in this House. In that situation it
was appropriate to have regard to the Convention. Balcombe L.J. referred in
this connection to Reg. v. Secretary of State for the Home Department, Ex
parte Brind [1991] 1 AC 696; Attorney-General v. Guardian Newspapers
Ltd. [1987] 1 WLR 1248; In re W. (a Minor) (Wardship: Restrictions on
Publication) [1992] 1 W.L.R. 100; and Attorney-General v. Guardian
Newspapers Ltd. (No. 2) [1990] 1 AC 109. Having examined other
authorities he concluded, having carried out the balancing exercise requisite
for purposes of Article 10 of the Convention, that there was no pressing social
need that a corporate public authority should have the right to sue in
defamation for the protection of its reputation. That must certainly be true
considering that in the past hundred years there are only two known instances
of a defamation action by a local authority. He considered that the right to
sue for malicious falsehood gave such a body all the protection which was
necessary. Similar views were expressed by Ralph Gibson L.J. and Butler-
Sloss L.J., who observed that the law of criminal libel might be available in
suitable cases, to afford additional protection. All three Lords Justices also
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alluded to the consideration that the publication of defamatory matter
concerning a local authority was likely to reflect also on individual councillors
or officers, and that the prospect of actions for libel at their instance also
afforded some protection to the local authority.
My Lords, I have reached my conclusion upon the common law of
England without finding any need to rely upon the European Convention. My
noble and learned friend, Lord Goff of Chieveley, in Attorney-General v.
Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109, at p. 283-284,
expressed the opinion that in the field of freedom of speech there was no
difference in principle between English law on the subject and Article 10 of
the Convention. I agree, and can only add that I find it satisfactory to be able
to conclude that the common law of England is consistent with the obligations
assumed by the Crown under the treaty in this particular field.
For these reasons I would dismiss the appeal. It follows that Bognor
Regis Urban District Council v. Campion was wrongly decided and should be
overruled.
LORD GRIFFITHS
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend Lord Keith of Kinkel, and for the reasons he gives,
I, too, would dismiss the appeal.
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend Lord Keith of Kinkel. and for the reasons he gives,
I, too, would dismiss the appeal.
– 12 –
LORD BROWNE-WILKINSON
My Lords,
I, too, would dismiss the appeal for the reasons given in the speech of
my noble and learned friend Lord Keith of Kinkel.
LORD WOOLF
My Lords,
I, too, would dismiss the appeal for the reasons given in the speech of
my noble and learned friend Lord Keith of Kinkel.
– 13 –
Source: https://www.bailii.org/
