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Corporate Defamation in English Law: Corporate Reputation, Freedom of Speech, and the Defamation Act 2013

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Corporate Defamation in English Law: Corporate Reputation, Freedom of Speech, and the Defamation Act 2013 CORPORATE DEFAMATION IN ENGLISH LAW: CORPORATE REPUTATION, FREEDOM OF SPEECH, AND THE DEFAMATION ACT 2013 David Jackman Acheson January 2020. This thesis is submitted in partial fulfilment of the requirements of the award of the degree of Doctor of Philosophy of the University of Portsmouth. Whilst registered as a candidate for the above degree, I have not been registered for any other research award. The results and conclusions embodied in this thesis are the work of the named candidate and have not been submitted for any other academic award. Word count: 80,445. FORM UPR16 Research Ethics Review Checklist Please include this completed form as an appendix to your thesis (see the Research Degrees Operational Handbook for more information Postgraduate Research Student (PGRS) Information Student ID: 387767 PGRS Name: David Jackman Acheson Department: Law First Supervisor: Daniel Bedford Start Date: September 2013 (or progression date for Prof Doc students) Study Mode and Route: Part-time MPhil MD Full-time PhD Professional Doctorate Title of Thesis: Corporate Defamation in English Law: Corporate Reputation, Freedom of Speech, and the Defamation Act 2013 Thesis Word Count: 80445 (excluding ancillary data) If you are unsure about any of the following, please contact the local representative on your Faculty Ethics Committee for advice. Please note that it is your responsibility to follow the University’s Ethics Policy and any relevant University, academic or professional guidelines in the conduct of your study Although the Ethics Committee may have given your study a favourable opinion, the final responsibility for the ethical conduct of this work lies with the researcher(s). UKRIO Finished Research Checklist: (If you would like to know more about the checklist, please see your Faculty or Departmental Ethics Committee rep or see the online version of the full checklist at: http://www.ukrio.org/what-we-do/code-of-practice-for-research/) a) Have all of your research and findings been reported accurately, honestly and YES within a reasonable time frame? NO b) Have all contributions to knowledge been acknowledged? YES NO c) Have you complied with all agreements relating to intellectual property, publication YES and authorship? NO d) Has your research data been retained in a secure and accessible form and will it YES remain so for the required duration? NO e) Does your research comply with all legal, ethical, and contractual requirements? YES NO Candidate Statement: I have considered the ethical dimensions of the above named research project, and have successfully obtained the necessary ethical approval(s) Ethical review number(s) from Faculty Ethics Committee (or from NRES/SCREC): If you have not submitted your work for ethical review, and/or you have answered ‘No’ to one or more of questions a) to e), please explain below why this is so: The research undertaken for this thesis did not raise any significant ethical issues - it was desk-based doctrinal research using secondary sources, and did not involve any human subjects or sensitive data. Signed (PGRS): Date: 9-1-20 UPR16 – April 2018 Abstract The aim of this thesis is to assess whether English defamation law strikes an appropriate balance between the conflicting interests in reputation and freedom of speech in cases involving corporate, as opposed to individual, claimants. The interests in corporate reputation and the freedom to criticize companies and their activities are explored by reviewing both the academic literature and the relevant case law, on the basis of which it is argued that the law should afford less weight to the reputational interests of corporate claimants than is given to the individual interest in reputation; and that defendants’ speech typically warrants enhanced protection from companies’ defamation claims in light of the public interest value of critical statements about corporate activities. In s 1(2) of the Defamation Act 2013, Parliament responded to the widespread concerns that had been raised about corporate defamation law by introducing a threshold requirement of ‘serious financial loss’ which claims brought by for-profit companies must meet in order to succeed. This thesis contains the most detailed critical assessment of that reform to date, which scrutinizes the cases in which the s 1(2) test has been interpreted and applied since it came into force. That analysis concludes that the provision will not resolve the problems with the pre-existing law, in part because the courts have interpreted it too favourably to claimants, and in part because Parliament’s decision to focus on financial loss fails to address other fundamental issues with corporate defamation litigation. In light of that assessment of the 2013 reforms, the thesis considers a range of alternative reforms that might be made, either to the substantive law, to the remedies awarded to successful claimants, or to the procedures used to resolve claims. A number of potentially beneficial reforms are identified, but it is argued that none of them would offer a complete response to the problems caused by corporate defamation claims. Instead, the thesis proposes that the right to sue in defamation should be removed entirely from corporate claimants. In contrast to most other literature in which a similar approach is proposed, this thesis recommends removing the right to sue from all non-human claimants, rather than targeting only larger companies or those trading for profit. The benefits of a rule with a clearly defined scope are argued to outweigh the limited interests that charities and smaller companies have in retaining the right to sue in defamation. i Table of contents Abstract ............................................................................................................................ i Table of contents ............................................................................................................. ii Acknowledgements ......................................................................................................... v Note on publications ...................................................................................................... vi Abbreviations and citation of sources ........................................................................... vii Table of abbreviations .............................................................................................. vii Introduction ........................................................................................................... 1 A. Context and research question ............................................................................... 1 B. Contribution to existing literature .......................................................................... 3 C. Chapter structure and methodological approach .................................................... 7 D. Overview of relevant law ..................................................................................... 11 E. Notes on terminology ........................................................................................... 14 Chapter One: Corporate Reputation ................................................................ 16 Introduction ................................................................................................................... 16 A. Conceptualizing reputation in defamation law ..................................................... 18 B. Reputational interests that companies do have .................................................... 23 i. The financial value of corporate reputation ..................................................... 23 ii. Corporate reputation is not ‘property’ ............................................................. 28 iii. Companies’ non-financial interests in reputation ............................................ 40 C. Reputational interests that companies do not have .............................................. 45 i. Reputation under Art 8 ECHR ......................................................................... 50 D. Public interest arguments for protecting corporate reputation ............................. 52 Conclusion .................................................................................................................... 58 Chapter Two: Speech about Companies ........................................................... 60 Introduction ................................................................................................................... 60 A. Protection of corporate reputation as a permissible reason to restrict speech under Art 10(2) ECHR ............................................................................................................ 62 B. The public interest in speech about companies .................................................... 64 i. Why a public interest in speech is significant under Art 10 ............................ 64 ii. Protection of public interest speech in English law ......................................... 67 iii. Exceptions to the general public interest in speech about companies ............. 78 C. The effect of corporate defamation law on speech about companies ................... 87 i. The chilling effect theory ................................................................................. 88 ii. The perceived cost and uncertainty of litigation .............................................. 90 iii. Chilling effects on different speakers .............................................................
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