Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31811/96

by TIMES NEWSPAPERS LIMITED

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 May 1996 by

TIMES NEWSPAPERS LIMITED against the United Kingdom and registered on

11 June 1996 under file No. 31811/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant company, Times Newspapers Limited ("TNL"), is the

publisher of The Times and the Sunday Times. It is represented before

the Commission by its company solicitor, Mr. A.J. Brett.

On 16 April 1992 TNL published a diary piece in the Books section

of the Sunday Times. The article referred to a Mr. Watts, an author

("the author"), and the similarities between his award-winning book and

an unpublished manuscript by another writer. A longer story about the

same subject was published by the Sunday Times on 3 May 1992, with a

photograph.

The author complained in person to TNL about the two articles and

TNL agreed to publish a letter from the author in the Sunday Times.

This was done on 17 May 1992. The letter mentioned that the photograph

was not of the author, and the editorial comment was added "We regret

the error over the photograph".

On 11 June 1992 TNL received a letter from Messrs. Schilling &

Lom ("Schilling & Lom"), solicitors, acting on behalf of another

Mr. Watts, a property developer (the developer). The photograph with

the article of 2 May 1992 had in fact been of the developer. Schilling

& Lom claimed that the publication of the photograph was defamatory and

demanded the publication of an apology, and damages for libel. TNL and

the solicitors exchanged several faxes in order to agree on the wording

of the apology to be published. On 14 June 1992 a revised version of

the apology and the photograph of the developer were published in the

Sunday Times. The apology read as follows:

"Our article (May 3) about the remarkable similarities between

Nigel Watts's novel, The Life Game, and Ann Henning's unpublished

novel, To Hell or to Connaught, was accompanied by a photograph

of a different Nigel Watts (above), a property consultant of

Tunbridge Wells, Kent, thus suggesting that he had plagiarised

the novel and dishonestly won the Betty Trask Literary Award.

We accept that this is without foundation and apologise ..."

Schilling & Lom had insisted on the insertion of the words "The

article together with the photograph alleged that Mr. Watts had

plagiarised the novel and as a result had dishonestly won the Betty

Trask Literary Award".

On 29 July 1992 Schilling & Lom wrote to TNL indicating that they

were now acting for the author and he complained about the two

articles, but also about the apology. TNL wrote back pointing out that

the publication of the author's letter on 17 May 1992 was in

satisfaction of his complaints over the two articles and that the

offending words in the apology had been added to the original version

only on the insistence of Schilling & Lom.

On 29 September 1992 Schilling & Lom commenced libel proceedings

against TNL on behalf of the author. TNL raised several defences,

inter alia that the apology was published in circumstances giving

riseto qualified privilege. On 2 December 1992 TNL obtained leave to

issue a third party notice against Schilling & Lom. The aim of the

third party notice was to obtain an indemnity from Schilling and Lom

against the claim by the author. Schilling & Lom applied to have it

struck out. On 7 October 1993 a High Court judge ordered that the

issue of whether or not the apology was published on an occasion of

qualified privilege should be tried as a preliminary issue. On

21 December 1993 judgment was given on that preliminary issue:

Mr. Justice Morrison held that the apology was not published in

circumstances giving rise to an occasion of qualified privilege for

TNL. He stated in particular:

"... By holding an occasion covered by privilege the court will,

in a sense, be conferring a freedom for a publisher at the

expense of the person defamed. The balance between the 'rights'

of the publisher and the defamed person must reflect the views

of right thinking members of society.

On the one hand a newspaper has an interest in correcting the

mistakes it has made. The public have an interest in receiving

accurate information. Therefore, corrections or apologies should

be encouraged; giving privilege to such occasions would provide

that encouragement. There is also the right of Mr. Watts, the

person defamed by the publication of the wrong photograph. He

had an interest in the newspaper making the correction.

Arguably, if newspapers were not protected by privilege, persons

in the position of Mr. Watts would or might be disadvantaged...

On the other hand, newspapers are in a position of considerable

power and influence in a free democratic society. They can break

the reputations of people about whom they write. Newspapers of

the size and authority of the Sunday Times must carry out their

functions with integrity and a sense of responsibility. ... There

is no evidence ... that newspapers are inhibited from publishing

corrections or apologies because of the fear that by doing so

they might defame a person. There is evidence to the contrary

effect. The Sunday Times required the Plaintiff, as a condition

of publishing his letter defending himself against the accusation

of plagiarisms, that this letter should contain no defamatory

material. In other words, the newspaper does not regard the

'right to reply' as diminished or threatened by such a

requirement. I cannot see why a similar position does not arise

when the newspaper itself is apologising for a defamation. ...

... I can see no good reason why a newspaper should be able to

claim that the publication of an apology is an occasion of

qualified privilege. Such occasions are to protect their private

rights as potential defendants to defamation actions."

On 28 July 1995 the Court of Appeal affirmed the order of

21 December 1993.

On the same day, the Court of Appeal also gave judgment on

Shilling & Lom's appeal against the order of 18 March 1993 which

dismissed their application to have the third party notice struck out.

The Court of Appeal allowed the appeal, and struck out the third party

notice on the ground that although the developer and his solicitors had

taken part in publishing the alleged libel (or had submitted material

published in it), they were nevertheless entitled to the protection of

qualified privilege because the developer as the victim of the attack

was entitled to a right of reply in order to rebut the accusation and

to do so with a considerable degree of latitude, so long as he did not

overstep the bounds and include entirely irrelevant and extraneous

material. The offending words were not unconnected with the theme.

The solicitors' publication was therefore protected by qualified

privilege which furnished then with a complete defence to the third

party proceedings. The third party notice was stuck out.

On 7 December 1995 the House of Lords refused leave to appeal.

COMPLAINTS

TNL complains that the refusal to afford a defence of common law

qualified privilege to its bona fide apology to the developer was in

violation of the Article 10 of the Convention.

Further, TNL complains that the decision of the courts to afford

a defence of common law qualified privilege to Schilling & Lom, the

solicitors for the developer and than for the author, who actually

inserted the defamatory words in the text of apology and were held by

the Court of Appeal to be joint-tortfeasors, but to deny the same

defence on the same occasion it, was a violation of Articles 13 and 14

of the Convention when read in conjunction with Article 10.

THE LAW

1. TNL claims that refusal to afford a defence of a qualified

privilege has caused a violation of its right to freedom of expression.

It alleges violation of Article 10 (Art. 10) of the Convention. This

provision reads as follows:

"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. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

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."

There can only be a violation of Article 10 (Art. 10) of the

Convention if there is an interference with the right to freedom of

expression.

In the present case, the libel action by the author ended when

two preliminary issues had been determined: that is, the findings that

Schilling and Lom had a complete defence of qualified privilege to the

third party notice, and that TNL did not have the defence of qualified

privilege when it published its (allegedly defamatory) apology.

The courts never established whether the apology, or the other

two publications alleged to defame the author, were defamatory or not.

It is therefore not open to TNL to claim that it was penalised

in any way for its publications.

TNL claims, rather, that the denial of qualified privilege in the

case was itself an interference with the right to freedom of

expression, and that no further proceedings were possible on that

question.

The Commission first notes that qualified privilege is a defence

which is expressed to apply in the public interest. As appears from

the judgments in the present case, it is available to a person who

alleges that he has himself been defamed and who is replying to the

alleged defamation (such as the author and/or his solicitors); it is

not available to a newspaper which is publishing that "defamation".

The Commission recalls that Article 10 (Art. 10) of the

Convention guarantees the right to freedom of expression, but also

underlines that the right carries with it duties and responsibilities:

in the context of civil proceedings, its aim is not to prevent persons

who are alleged to have defamed third parties from having to justify

their actions, but rather to ensure that the State strikes a fair

balance in weighing up the interests of the maker and the object of the

statement.

The Commission does not accept TNL's submission that its freedom

of expression was somehow affected by the absence of a defence of

qualified privilege. TNL made the statement (the apology), and the

courts found that it was not made on a privileged occasion. They never

found that the statement was defamatory, and there is no indication

that TNL is slow in publishing apologies because of the absence of

qualified privilege.

No interference with TNL's freedom of expression can therefore

be found in the present case.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. TNL alleges that it has been the victim of discrimination,as the

court has decided to grant the defence of qualified privilege to

Schilling & Lom, TNL's joint-tortfeasors, but not to it. TNL alleges

a violation of Article 14 (Art. 14) of the Convention, taken together

with Article 10 of the Convention. Article 14 (Art. 14) of the

Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission recalls that Article 14 (Art. 14) affords

protection against discrimination, that is treating differently,

without an objective and reasonable justification, persons in

"relevantly" similar situations (Eur. Court HR, Fredin v. Sweden

judgment of 18 February 1991, Series A no. 192, p. 19, para. 60).

However, a newspaper publishing an apology is not in the same

position as the plaintiff to defamation proceedings (or his solicitor)

who drafts such an apology: whilst the newspaper is under its ordinary

duty to check its facts before publishing, the aggrieved plaintiff is,

reasonably, entitled to express his opinions in more robust terms, and

still to benefit from qualified privilege because it is in the public

interest that a person should have a right to reply to rebut an

accusation made against him. Moreover, the ultimate decision as to

whether to publish the apology rests solely with the newspaper, which

may prefer to have the matter settled in court if the demands being

made are in its opinion unreasonable having regard to its duties and

responsibilities.

Accordingly, TNL was not in a "relevantly similar" situation to

the plaintiff (and his solicitors), and there was therefore no

discrimination within the meaning of Article 14 (Art. 14) of the

Convention.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Finally, TNL alleges a violation of Article 13 of the Convention,

taken together with Article 10 (Art. 13+10) of the Convention.

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31). In the

present case, the Commission has rejected the substantive claims as

disclosing no appearance of a violation of the Convention. For similar

reasons, they cannot be regarded as "arguable".

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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TIMES NEWSPAPERS LIMITED v. THE UNITED KINGDOM

TIMES NEWSPAPERS LIMITED v. THE UNITED KINGDOM

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