AS TO THE ADMISSIBILITY OF

Application No. 14631/89

by TIMES NEWSPAPERS LTD

against the United Kingdom

        The European Commission of Human Rights sitting in private on

5 March 1990, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 21 October 1988

by TIMES NEWSPAPERS LTD against the United Kingdom and registered on

7 February 1989 under file No. 14631/89;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a newspaper publisher having its principal

office in London.  Its newspapers include the daily The Times and the

weekly The Sunday Times.  It is represented in the proceedings before

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

        The facts of the present case, as submitted by the applicant,

may be summarised as follows.

        The application arises out of the fact that libel actions are

heard by juries who have unrestricted powers to award damages if the

libel is proved.  Section 69(1) of the Supreme Court Act 1981 (which

re-enacted similar provisions in earlier legislation) provides that:

        "Where, on the application of any party to an action to be

        tried in the Queen's Bench Division, the Court is satisfied

        that there is in issue ... a claim in respect of libel,

        slander, malicious prosecution or false imprisonment, ... the

        action shall be tried with a jury, unless the Court is of the

        opinion that the trial requires any prolonged examination of

        documents or accounts or any scientific or local investigation

        which cannot conveniently be made with a jury."

        In such actions the jury is responsible for determining the

amount of damages to be awarded to a successful plaintiff, without any

judicial guidance or official terms of reference.  Consequently, the

applicant alleges that the level of damages is unprincipled, arbitrary

and unpredictable, and may often be considered excessive.  Recent

large awards include £ 450,000 in the case of Packard v.

Eleftherotypia (3 June 1987), £ 500,000 in the case of Archer v.  The

Star (26 July 1987), £ 260,000 in the case of Sethia v.  Mail on Sunday

(4 November 1987), £ 300,000 in the case of Freeman v.  Stationery

Trade News (17 March 1988), £ 310,000 in the case of Fox & Gibbons v.

Sourakia (13 July 1988), £ 150,000 in the case of Maddocks v.  Anglers

Mail (April 1989), £ 600,000 in the case of Sutcliffe v.  Private Eye

(May 1989, subsequently reduced on appeal by agreement between the

parties) and £ 1,500,000 in the case of Lord Aldington v.  Nikolai

Tolstoy and Nigel Watts (30 November 1989).  There is a right of

appeal, but the Court of Appeal does not normally substitute its own

award for that of the jury and can in general only order a re-trial

before another jury with the attendant legal costs and uncertainty.

In Scotland, where jury trials for libel are extremely rare, damages

awards are very modest compared to those awarded in England and Wales.

        The applicant refers, inter alia, to domestic case-law

acknowledging the allegedly arbitrary, unpredictable and excessive

nature of jury damages awards.  For example in Knuppfer v.  London

Express Newspapers Limited <1943> K.B. 80, 85, Lord Justice Mackinnon

in the Court of Appeal commented as follows:

        "It is true that damages for defamation may be punitive,

        and need not be limited to any actual pecuniary loss

        that a victim can prove he has suffered.  It is notorious,

        however, that juries have often awarded utterly extravagant

        sums in such cases."

        In McCarey v.  Associated Newspapers Ltd. <1965> 2 Q.B. 86,

99B-C and 102A, Lord Justice Pearson in the Court of Appeal referred

to "the well-known propensity of juries to award very large sums in

libel actions" and to "the fact that juries not infrequently award

extravagant sums by way of damages in libel actions".  In Ward v.

Jones <1966> 1 Q.B. 273, 299G-300C, Lord Denning in the Court of

Appeal referred to the need for accessibility, uniformity and

predictability in civil damages awards and noted that "none of these

three is achieved when the damages are left at large to the jury".

        In 1975, the Faulks Committee on Defamation (Cmnd. 5909)

recommended a number of major changes to the law of libel.  In

particular it recommended the following:

        "The court as in other actions for tort should have a

        general discretion depending on the circumstances of

        each case to decide whether or not in the interests of

        justice trial should be by judge, with or without a

        jury, in default of agreement between the parties as

        to the mode of trial.

        ... the function of the jury as regards damages should

        be confined to stating whether these are to be

        substantial/moderate/nominal/or contemptuous, and that the

        actual amount within the category so stated should be

        fixed by the judge.

        ...  In any event the recommendation in the Report of the

        Porter Committee should be implemented; namely that the Court

        of Appeal should be empowered in actions for defamation to

        review the amount of damages awarded and, if they consider

        such amount either inadequate or excessive, should have power

        to substitute such sum as in their view should in all the

        circumstances of the case have been given.  This reform would

        obviate, in many cases, the necessity of a new trial entailing

        great additional expense and anxiety for all parties."

        These recommendations were not implemented.

        The applicant wrote to the Lord Chancellor requesting that he

consider, on behalf of the Government, amending the law by adopting

the recommendations made by the Faulks Committee and by bringing the

law of defamation in England, Wales and Northern Ireland more closely

into line with the law in Scotland, where jury trials are the

exception.  The Lord Chancellor replied in a letter dated 4 October

1988 that the Government had no plans to amend the law, although it

now appears that amendment is under consideration.

COMPLAINTS

        The applicant claims that the consequence of the

unpredictability and excessiveness of jury damages awards is that

newspapers, including the applicant's newspapers, tend to become

over-cautious on subjects of legitimate public interest to avoid

potential libel actions, and they are forced to settle libel claims at

wholly unrealistic figures for alleged damage to the plaintiff's

reputation.  Moreover, the prospect of large awards of damages has the

effect of inducing newspapers to make insincere statements in open

court apologising for the alleged libel.

        The applicant complains of a breach of Article 10 of the

Convention in that the alleged lack of predictability and certainty in

the amount of damages awarded by juries in libel actions constitutes

an unjustifiable restriction on the freedom of expression of

newspapers, including those published by the applicant.  In

particular, the applicant contends that the arbitrary, unpredictable

and excessive nature of jury damages awards in the United Kingdom

imposes a "pall of fear and timidity ... upon those who would give

voice to public criticism" and creates an atmosphere in which the

freedoms guaranteed by Article 10 cannot effectively survive (New York

Times Co. v.  Sullivan 376 US 254 <1964>; cf. also Eur.  Court H.R.,

Handyside judgment of 7 December 1976, Series A no. 24, pp. 22-24,

paras. 48-50, Sunday Times judgment of 26 April 1979, Series A no. 30,

pp. 31, 35-37, paras. 49, 59-60, and Lingens judgment of 8 July 1986,

Series A no. 103, paras. 39, 43-44).

        The applicant further complains that it has no effective

remedy against this situation and that there is unreasonable

discrimination in that, in comparison, jury trials for defamation

actions in Scotland are rare.  The applicant invokes Articles 13 and

14 of the Convention in conjunction with Article 10.

THE LAW

1.      The applicant complains about the inhibiting effect on

newspaper publishers allegedly caused by the fact that juries in

defamation actions determine the level of damages as well as

liability, without any concrete guidelines as to the appropriate

amount to be awarded.  It is submitted that this procedure violates

Article 10 (Art. 10) of the Convention, the relevant part of which

provides:

"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 ...

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 ...

for the protection of the reputation or rights of others ..."

        The Commission must firstly consider whether the applicant may

claim to be a "victim" of a violation within the meaning of Article 25

(Art. 25) of the Convention, and in that connection it refers to the

case-law of the European Court of Human Rights as regards the notion

of victim:

        "Article 25 (Art. 25) does not institute for individuals a kind

        of actio popularis for the interpretation of the Convention;

        it does not permit individuals to complain against a law

        in abstracto simply because they feel that it contravenes

        the Convention.  In principle, it does not suffice for an

        individual applicant to claim that the mere existence of a

        law violates his rights under the Convention; it is

        necessary that the law should have been applied to his

        detriment.  Nevertheless, as both the Government and the

        Commission pointed out, a law may by itself violate the right

        of an individual if the individual is directly affected by the

        law in the absence of any specific measures of implementation

        ...

        ...  The procedural provisions of the Convention must, in view

        of the fact that the Convention and its institutions were set

        up to protect the individual, be applied in a manner which

        serves to make the system of individual applications

        efficacious.  The Court therefore accepts that an individual

        may, under certain conditions, claim to be a victim of

        a violation occasioned by the mere existence of secret

        measures or of legislation permitting secret measures, without

        having to allege that such measures were in fact applied to

        him ..."

        (Eur. Court H.R., Klass and Others judgment of 6 September

        1978, Series A no. 28, paras. 33 and 34)

        "Article 25 (Art. 25) of the Convention entitles individuals

        to contend that a law violates their rights, in the absence of an

        individual measure of implementation, if they run the risk of

        being directly affected by it ...

        ... the applicants are not inviting the court to undertake an

        abstract review of rules which, as such, would be incompatible

        with Article 25 (Art. 25) ... they are challenging a legal

        position ... which affects them personally."

        (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A

        no. 32, para. 27)

        "...  The maintenance in force of the impugned legislation

        constitutes a continuing interference with the applicant's

        right to respect for his private life ...  In the personal

        circumstances of the applicant, the very existence of this

        legislation continuously and directly affects his private

        life ... : either he respects the law and refrains from

        engaging - even in private with consenting male partners -

        in prohibited sexual acts to which he is disposed by reason

        of his homosexual tendencies, or he commits such acts and

        thereby becomes liable to criminal prosecution."

        (Eur. Court H.R., Dudgeon case of 22 October 1981, Series A

        no. 45, p. 18, para. 41; Eur.  Court H.R., Norris judgment of

        26 October 1988, Series A no. 142, pp. 15-16, paras. 28-34)

        As regards the present case, the Commission notes that the

applicant does not complain of any arbitrary or excessive award for

defamation made by a jury against any of the newspapers which it

publishes, nor has it referred to any article or statement which it

claims these newspapers have been deterred from publishing as a result

of their fear of a large award of damages being made.  The applicant

therefore complains essentially of the general state of the law

relating to jury trial in defamation actions.

        The Commission considers that a newspaper publisher could in

certain circumstances be regarded as a victim of a violation of

Article 10 (Art. 10) of the Convention even although no defamation

proceedings had been brought against any of its newspapers, for

example where the law of defamation was at the same time too vague to

allow the risk of proceedings to be predicted.  However, in the

present case, the Commission finds that this is not the case.  The

applicant has not been able to show with reference to any particular

jury award or to any specific article or statement that its newspapers

have in any respect been inhibited from imparting information.

        In these circumstances, the Commission considers that the

applicant cannot be regarded as a "victim" within the meaning of

Article 25 (Art. 25) of the Convention.

        Furthermore, the Commission notes that, in contrast to the

situation in the Dudgeon and Norris cases referred to above, in which

the acts concerned were themselves protected under the Convention, the

publication of defamatory material is not as such protected under the

Convention, Article 10 para. 2 (Art. 10-2) of which permits restrictions

on the exercise of freedom of expression inter alia "for the

protection of the reputation or rights of others".  The Commission

cannot, therefore, accept that the Convention could be relied upon to

assert a right to publish articles or statements of a defamatory

nature.

        This part of the application must, therefore, be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.      The applicant also complains under Article 13 (Art. 13) of the

Convention, in conjunction with Article 10 (Art. 10).  Article 13

(Art. 13) guarantees the right to an effective remedy before a

national authority to everyone whose rights and freedoms under the

Convention are violated. The Commission notes that Article 13

(Art. 13) does not confer a remedy against or a judicial review of

legislation or legal practices which are considered not to be in

conformity with the Convention (cf.  Young, James and Webster v. the

United Kingdom, Comm.  Report 14.12.79, para. 172).  The Commission

recalls that for this Article to apply the claim that a provision of

the Convention has been violated must be "arguable" (Eur.  Court H.R.,

Boyle and Rice judgment of 27 April 1988, Series A no. 131, paras.

52-55).  The Commission notes that it has rejected the applicant's

complaint under Article 10 (Art. 10) of the Convention as manifestly

ill-founded because the applicant cannot claim to be a victim of a

violation.  In these circumstances the Commission does not consider

that the applicant's complaints under that provision can be described

as arguable for the purposes of Article 13 (Art. 13).

        It follows that the above complaint under Article 13 (Art. 13)

must also be rejected as being manifestly ill-founded within the

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

3.      Finally, the applicant complains under Article 14 (Art. 14) in

conjunction with Article 10 (Art. 10) of the Convention, in that newspaper

publishers in Scotland are in a more favourable position than those in

England and Wales, since jury trial in defamation cases is exceptional

in Scotland.  Article 14 (Art. 14) of the Convention provides

protection against discrimination in the enjoyment of the rights and

freedoms set forth in the Convention.  However the Commission has

already found that the applicant has not been able to demonstrate with

reference to any particular jury award that its newspapers have in any

way been inhibited from imparting information, and in these

circumstances it also finds that the applicant cannot be regarded as a

"victim", within the meaning of Article 25 (Art. 25) of the

Convention, of any discrimination contrary to Article 14 (Art. 14) of

the Convention.

        Furthermore, not all differences in treatment amount to

discrimination, provided they have an objective and reasonable basis.

In this connection, the Commission recalls that the mere existence of

a difference in treatment between two jurisdictions does not

constitute an arbitrary difference in treatment or discrimination

(see, for example, No. 11077/84, Dec. 13.10.86, to be published in

D.R. 49).  It finds that the applicant has not shown that it has been

discriminated against in any way by virtue of the Scottish system of

defamation litigation.

        It follows that this part of the application must similarly be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)