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Criminal Libel The Law Commission Working Paper No. 84 Criminal Libel LONDON HER MAJESTY'S STATIONERY OFFICE 0 Crown Copyright 1982 First Published 1982 ISBN 0 11 730164 .7 17-26-33 THE LAW COMMISSION WORKING PAPER NO. 84 CRIMINAL LAW CRIMINAL LIBEL Contents -PART Paragraph Page SUMMARY 1 I INTRODUCTION 1.1 - 1.9 2- 9 I1 DEVELOPMENT OF THE LAW OF CRIMINAL LIBEL 2.1 - 2.22 10-37 Gleaves v. Deakin 2.16- 2.20 27-34 Statistics 2.21- 2.22 35-37 I11 THE PRESENT LAW 3.1 - 3.30 38-70 A. The prohibited conduct 3.1 - 3.11 38-48 1. General 3.1 - 3.2 38-39 2. The definition of a defamatory statement 3.3 - 3.5 39-41 (a) General 3.3 - 3.4 39-40 (b) Innuendoes 3.5 40-41 3. Seriousness 3.6 - 3.7 41-44 4. Publication 3.8 - 3.9 45-46 5. Who may be defamed? 3.10- 3.11 46-48 B. The mental element 3.12- 3.16 49-53 1. Mens rea 3.12- 3.15 49-52 . 2. Vicarious liability 3.16 52-53 C. Defences 3.17- 3.21 53-59 1. Justification and public benefit 3.18- 3.19 54-56 2. Publication on a privileged occasion 3.20 56-57 3. Fair comment on a matter of public interest 3.21 58-59 iii -PART Paragraph D. Procedural and other provisions 3.22 - 3.23 59-62 E. Special provisions relating to newspapers 3.24 - 3.29 63-69 1. Order of a judge in chambers required for a prosecution 3.25 - 3.27 63-67 2. Committal proceedings 3.28 67-68 3. Privilege 3.29 68-69 F. Penalties 3.30 69-70 IV CRIMINAL LIBEL IN OTHER JURISDICTIONS 4.1 - 4.15 71-84 A. Scotland 4.1 - 4.2 7 1- 73 B. Northern Ireland 4.3 73 C. Republic of Ireland 4.4 73-74 D. Other common law systems 4.5 - 4.12 74-82 1. Canada 4.5 74-75 2. Australia 4.6 - 4.9 75-79 3. New Zealand 4.10- 4.11 79-80 4. United States of America 4.12 80-82 E. Civil law codes 4.13- 4.14 82-83 F. Conclusions 4.15 84 V THE SCOPE OF RELATED OFFENCES AND LEGAL CONTROLS 5.1 - 5.10 85-92 A. Public Order Act 1936, section 5 5.2 - 5.4 85-87 B. Public Order Act 1936, section SA 5.5 87-88 C. Binding over procedure 5.6 88-89 D. Post Office Act 1953, section 11 and British Telecommunications Act 1981, section 49(1) 5.7 89 E. Offences against the administration of justice 5.8 - 5.9 90-92 F. Other offences 5.10 92 iv -PART Paragraph VI DEFECTS OF THE PRESENT LAW 6.1 - 6.15 93-105 A. Comparison with the tort 6.1 - 6.6 93- 97 1. Proof of truth is not a complete defence 6.4 94 2. Public benefit 6.5 95 3. Defamation Act 1952 6.5 - 6.6 95- 97 B. Strict liability and negligence 6.7 97- 98 C. No defence of mistaken belief as to truth 6.8 98 D. Burden of proof as to truth 6.9 99 E. "Seriousness" 6.10 99-101 F. Possible incompatibility with European Convention on Human Rights 6.11 101 G. Only written publications penalised 6.12 102 H. Special protection for newspapers 6.13- 6.14 103-104 I. Proof of convictions 6.15 104-105 VI1 CONSIDERATION OF THE NEED FOR CRIMINAL SANCTIONS 7.1 - 7.45 106-144 A. Should the present law be retained? 7.1 - 7.4 106-109 B. Is there need for any offence of criminal defamation? 7.5 - 7.16 109-122 1. Preliminary considerations 7.5 - 7.8 109-113 2. The arguments considered 7.9 - 7.14 113-121 (a) No criminal liability for true statements 7.10 114-115 (b) No criminal liability without knowledge that the statement is defamatory 7.11 115 (c) No criminal liability for trivial defamation 7.12 115 (d) Arguments for abolition of criminal libel without replacement by any new offence 7.13 116-118 (e) Arguments for retaining an offence 7.14 118-121 V PART Paragraph 3. Provisional conclusion 7.15- 7.16 122 C. Should any new offence extend beyond the deliberately defamatory statement published with knowledge that the statement is false? 7.17- 7.30 123-134 1. Honest belief in the truth of the statement 7.19- 7.20 124-125 2. Negligence 7.21 125-126 3. Recklessness 7.22- 7.25 126-129 4. No belief in the truth of the defamatory statement 7.26- 7.27 130-131 5. Knowledge or belief in the falsity of the statement 7.28 131-132 6. Provisional conclusion 7.29 132-133 D. Specific problems relating to a new offence 7.31- 7.35 134-138 1. Libels in respect of past misconduct 7.31- 7.32 134-136 2. Breach of the peace 7.33 136-137 3. Punitive damages and the criminal law 7.34- 7.35 138 E. Are there categories of i people who require special protection? 7.36- 7.45 139-144 1. Persons prominent in the public service 7.37- 7.38 139-140 2. The Sovereign and members of the Royal Family 7.39 140-141 3. Police officers 7.40- 7.45 141-144 VI11 A NEW OFFENCE OF CRIMINAL DEFAMATION 8.1 - 8.65 145-191 A. Introduction and summary 1 8.1 - 8.2 145-148 B. The-prohibited conduct (actus reus) 8.3 - 8.19 148-159 1. Untrue statement 8.3 148-149 2. Exclusion of trivial defamation 8.4 - 8.7 149-151 3. "Defamatory" statements 8.8 - 8.13 151-154 (a) Absence of definition 8.9 152 vi -PART Paragraph Page (b) The Faulks Committee definition 8.10 152-153 (c) Injury to trade or occupation 8.11 153 (d) Economic loss 8.12 153-154 (e) Conclusion 8.13 154 4. Mode of publication 8.14 154-155 5. Participation 8.15 155 6. Scope of publication 8.16 156 7. Limitations on publication 8.17- 8.19 157-159 (a) Defamation of the dead 8.17 157 (b) Companies 8.18 158 (c) Group libels 8.19 158-159 C. The mental element in the new offence, and the burden of proof 8.20- 8.44 159-176 1. Intention to defame 8.21- 8.22 160-161 2. The defendant's knowledge or belief that the statement was untrue 8.23 161-162 3. The burden of proof of knowledge or belief 8.24- 8.41 162-174 (a) The problem stated 8.24- 8.26 162-165 (b) How the problem is met in other crimes 8.27- 8.32 165-170 (c) Possible special procedural provisions as to proof of knowledge 8.33- 8.41 170-174 4. Provisional conclusions 8.42- 8.44 174-176 D. Defences 8.45- 8.49 177-180 1. Absolute privilege 8.45 177 2. Qualified privilege 8.46- 8.48 177-180 3. Fair comment 8.49 180 E. Mode of trial and penalty 8.50- 8.51 181 F. Procedural provisions 8.52- 8.65 182-191 1. Conduct of proceedings by Director of Public Prosecutions 8.53- 8.56 182-184 vii PART Paragraph 2. Notice of 'grounds for belief 8.57 185-186 3. Notice before trial of requirement of proof of falsity 8.58 186-187 4. Refusal to disclose sources of information 8.59 187-188 5. Proof of convictions 8.60 188 6. Special verdict on finding of not guilty 8.61- 8.63 188-190 7. Concurrency with civil action 8.64- 8.65 190-191 IX "POISON-PEN" LETTERS 9.1 - 9.16 192-202 A. The problem stated 9.2 192 B. Are the existing sanctions adequate? 9.3 - 9.7 192-197 1. Criminal libel 9.3 192-193 2. Other related provisions 9.4 - 9.7 193-197 C. Proposal for a new offence 9.8 - 9.13 197-201 D. Provisional.conc1usion 9.14- 9.16 201-202 X SUMMARY OF PROVISIONAL CONCLUSIONS AND PROPOSALS 10.1 -10.6 203-207 viii THE LAW COMMISSION Working Paper No. 84 CRIMINAL LIBEL Summary. In this Working Paper the Law Commission examines, as part of its programme of codification of the criminal law of England and Wales, the common law offence of criminal libel. It provisionally proposes the abolition of this offence and its replacement by a new statutory offence of criminal defamation. The new offence would be very much narrower than the common law offence. It is intended to penalise only the deliberate "character assass in", namely, a person who makes or publishes a statement about another person which is both untrue and defamatory and which he knows or believes to be untrue and which he intends should defame. The Law Commission also provisionally proposes a new summary offence to penalise those who send "poison-pen" letters. All the proposals in the Working Paper are provisional only and its purpose is to obtain the views of the public on them. PART I INTRODUCTION 1. In our Second Programme of Law Reform,’ we recommended a comprehensive examination of the criminal law with a view to its codification. As part of this programme, we have undertaken to review the common law offence of criminal libel.’ This Working Paper sets out our provisional proposals for reform.
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