A common strand runs through the recent twin twitterstorm over Paul Chambers and Gareth Compton, and connects both cases to the current efforts to reform England’s libel laws. That strand is the law’s mulish reluctance to acknowlege the difference between serious statements and ones that are plainly humourous. And yet US law provides an elegant test of what is prosecutably serious and what is not, if UK legislators could only be persuaded to take it up: could a reasonable person believe that defendant’s assertion or statement was seriously meant?
It can be difficult to draw parallels between the US and the UK where freedom of speech is concerned, given the primacy accorded to the First Amendment; Brits have no recourse to such fundamental codified principles. But let’s not be blinded by our colonial cousins’ adorably quaint customs. At the state level, where the relevant laws are made, most bills contain a simple defence to libel or slander. If an assertion is plainly hyperbolic or parodic; if it is rhetorical; if it is not intended to be believed; if its purpose, simply, is to make people laugh - it cannot be defamatory.
US case law provides refreshing examples of the influence of this civilised formula. In the famous case of Hustler Magazine vs Falwell (dramatised in The People vs Larry Flynt), the egregious Jerry Falwell sued the equally-but-differently egregious porn rag for libel arising from the publication of a cartoon which, among other things, ‘portrayed the respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse’. The original jury dismissed the libel claim with ease, finding that the parody could not ‘reasonably be understood as describing actual facts or events’. (Falwell’s parallel claim for emotional distress found its way to the Supreme Court, which found in Hustler‘s favour.) The case of New Times vs Isaacks, in which a county district attorney sued an alternative newspaper for a parodic news story concerning Where the Wild Things Are, is even more refreshing: the details (including a fictional bailiff describing the difficulty of finding child-sized handcuffs, and a fictional school official saying ‘Frankly, these kids scare the crap out of me’) are worth reading.
Imagine a parallel universe in which the UK had adopted this principle. Ian Hislop would be entirely unfamiliar with the layout of the Royal Courts of Justice. Satirical news programmes would not be littered with the tedious suffix ‘allegedly’. Mumsnet would not have been very nearly closed down by an action arising from a poster’s aside about Gina Ford’s predeliction for strapping babies to rockets and firing them into Lebanon. Gareth Compton would still be a councillor in Edgbaston instead of facing professional ruin, and Paul Chambers would just be some guy on Twitter.
It’s all far too sensible to catch on.
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This is nonsense. English libel law has exactly the same rule as that extracted from the US cases mentioned above. The question in both jurisdictions is whether the statement would be understood a reasonable person to be an allegation of fact. The Twitter cases are nothing to do with libel, but again the question for the Court is the effect on the mind of the reasonable person. What you are complaining about is where the line has been drawn in certain cases, not the test. Oh, and it’s also nonesense to say that English law has no “fundamental codified principles” relating to freedom of expression. The Human Rights Act directly imports the right to freedom of expression guaranteed by Article 10 of the European Convention into English law. The difference is that in England the right to free speech must be balanced against other rights, such as the right to privacy and the right of access to court. In the US free speech trumps those rights.
Thanks – that’s interesting. Are you saying that the current English libel laws have the parody/hyperbole test (because I don’t think they do)? It seems to me that the current test of ‘reasonableness’ and context, without reference specifically to parody, isn’t fit for purpose. Examples of plainly humourous comments that prompt actions abound, and the matter of ‘context’ is problematic in an online forum, where humourous/parodic content is rarely signposted as clearly as it is in printed material.
I think your point about fundamental codified principles in UK law is rather undermined by your sentence ‘The difference is that in England the right to free speech must be balanced against other rights, such as the right to privacy and the right of access to court.’