The European Commission’s draft proposal to “harmonise the rules of law as to non-contractual obligations” will undermine free speech in this country if it becomes part of community law.
During the passage of the private international law bill through Parliament in 1994/95, Lord Lester and I were at considerable pains to secure that the “double actionability” rule in defamation was preserved. Fortunately, we succeeded, because by a narrow majority the Lords accepted the free speech considerations underlying the doctrine. Briefly, it means that a foreign claimant in a British court should only be permitted to have his reputation assessed according his country’s laws if these are compatible with (and no more repressive than) British law – and, one hopes, Article 10 of the European Convention of Human Rights. This ensures that British judges, and even more British juries, are not saddled with the near impossible, and totally repugnant, task of having to apply the repressive free speech criteria of totalitarian regimes such as, for example, Singapore or Romania.
Article 7 of the EC draft proposes that “the law applicable to defamation shall be the law of the country where the victim is habitually resident at the time of the tort”. The law in question may be that of any state regardless of whether it is an EC member. At a stroke, this would sweep away the bulwark of double actionability and, instead of enabling the British system to set worth-while free speech standards for others to pursue or emulate, would leave it exposed to the whims of claimants whose laws endorse the enforcement of wholly unmeritorious claims.
Not merely that, but the editorial task facing the media of having to comply with foreign laws in the countries where they publish, and even more in relation to material put out on the internet, would be overwhelming. It is no answer to point to Article 20 of the EC draft, which states that “the application of any rule of law may be refused only if (it) is manifestly incompatible with the public policy of the forum”, because issues of public policy, which judges are not ideally qualified – or indeed there – to decide, are often wider than, and far from identical with, those of free speech.
Adopting the law of an individual’s “habitual residence” as the standard by which to measure his reputation may be wholly inappropriate where the damage has been sustained, or predominately sustained, in a different jurisdiction. This could arise either because the “residential remedy” affords an insufficient vindication or because, whether or not sufficient, it fails to reach the eyes and ears of the audience to whom the original publication was made. Wherever enforced, the standard applied should surely be that of the country in which the damage to, for example, an international businessman’s reputation was mainly caused, with a proviso for any vindication to be disseminated wherever subsidiary publication occurred.
This is a complicated subject, and there are other relevant issues. But those elaborated above should be sufficient to drive home to both editors and journalists that Article 7 of the EC draft is decidedly not a recipe for the “harmonious legal alignment” of EC systems, and will simply produce a discordant cacophony of argument on which lawyers will be swift to enrich themselves at the expense of both the media and, more importantly, free speech considerations.
The short answer to this problem, without oversimplifying it, is to let each EC state set its own Article 10 standard of free speech for other systems to comply with if they are to be internally enforceable within that state. Then, and only then, will we be able to move towards the common objective of a universally acceptable standard of free speech enforcement.
Antony Whitaker is a legal consultant with Theodore Goddard