Recently, in relation to my volunteering to help administer mySociety’s freedom of information website WhatDoTheyKnow.com, I came across the February 2013 High Court judgement in which Judge David Eady ruled universities could sue for libel. In my view Mr Eady took it upon himself to substantially change the law via that judgement as previously the 1993 decision by the House of Lords in a case involving Derbyshire County Council vs Times Newspapers Limited and others established the principle that public bodies could not sue for libel.
I think Mr Eady made a mistake when he judged universities not to be public or governmental bodies. I think a strong argument that they are, which Mr Eady did not explicitly consider, is that they control access to professions.
I think that when judges find themselves making substantive decisions like these, of the kind which MPs should be making, there should be clear routes for them to suggest to parliament that it clarifies its intent, or decides what the law ought be. MPs do from time to time respond to judgements but they do so in a haphazard way, I would like to see a formal and transparent process.
As it is MPs decided not to place the principle arising from the Derbyshire case into law when writing the Defamation Act 2013 which will come into force later in 2013, they’ve left it up to judges to decide which public bodies ought not be able to take libel action.
My view is public bodies should not be able to sue for libel. People should be free to say what they like about councils, hospitals, universities, police forces etc. without the risk of having the costs in time and money of having to defend themselves as well as the prospect of potentially ruinous damages to pay if they are judged by a court to have libelled a public body.
I would like to see students, and others, feeling free to comment on, influence the policies of, and seek to improve universities. I think Mr Eady’s new law will deter people from such activities. I would like to see other protections too such as enforcement of the Education Act provisions requiring democratic students’ unions and for protection for student whistleblowers.
Personally I’ve always been careful when raising concerns and making suggestions in relation to universities to focus on the institutional problems and not on individuals. Consideration of libel risk based on the law as I understood it before Mr Eady in my view unilaterally changed it was just one reason for that, another is that major problems come not with individuals but the institutions and their governance arrangements within which individuals operate.
I wrote to my MP before parliament considered the new libel law saying:
My view is the principle that any governmental body should be open to uninhibited public criticism, and therefore should not be able to use or threaten use defamation law to quash its critics ought be extended to apply to all public bodies, again this could use the definition of public bodies as applies with FOI/EIR legislation. Such a provision could be seen as a mere clarification of the current position; my view it would be desirable to see the current uncertainty over how widely the “Derbyshire Principle” applies clarified by Parliament and not left to a court. Where senior officers in an organisation are to all intents and purposes acting on behalf of (and perhaps even funded by) the public body they too ought in my view be covered.
I would hope that the defences in the Defamation Act 2013 of truth, honest opinion and publication on matter of public interest would all cover anything I would want to write about universities; but I’d rather universities weren’t able to sue me in the first place.
This article is written in an entirely personal capacity, and not as a WhatDoTheyKnow volunteer
24 responses to “Universities Can Sue for Libel”
If you can’t ‘libel’ a hospital or universities where does that leave a whistle blower? (Assuming I’ve understood you point correctly.)
I’d quite like the situation to be such that you can’t libel a university; ie. you can defame them, you can say things which lower their reputation through reporting accurately and responsibly but they are not able to take action against you.
When anadapter says “can’t libel a university…” what I think they mean is: “If you’re not allowed to libel a university where does that leave a whisleblower?”.
The answer is: vulnerable to having to defend a libel action in court.
Ideally universities would adopt whistleblowing policies designed to protect staff and students and perhaps others, eg. contractors, making disclosures in the institution’s and the public interest. Whistleblowers shouldn’t just not be sued, they ought be supported by the institutions to ensure any negative impacts of their public spirited action are minimised. There’s no requirement for universities to have such policies, and many don’t.
Exactly. We should be protecting whistle blowers (and journalists for that matter, thinking of Varsity and The Cambridge Student newspapers who might, occasionally wish to be critical of the university) not making it far less likely that people will speak up about bad or flawed practises because they can’t afford the court fees etc.
This just shows the inconsistencies and occasional failure of judges to properly grasp concepts and correctly or independently interpret the law. I could probably name at least half a dozen libel judgements which are wrong in law, inconsistent, contradictory and absent of any common sense.
Thankfully in the last five years decisions have been improving and generally Eady issued very good, common sense decisions. That makes it even more surprising to read a judgement like this. Have a look at the last three last cases which involved conservative claimants decided by Judge Tugendhat whom he ruled in favour of. Two cases were overturned at appeal and one was so clearly wrong that no independent or impartial judge who has presided over similar cases could conceivably reach such a decision. I believe some judges apply arbitrary justice and adapt the arguments to whichever claimant is before them. In my mind there is no other explanation for some decisions.
There’s certainly some element of luck and chance involved whenever any case reaches court; that’s one of many reasons why court is best avoided.
Recently a UK academic sent a delayed email after his death to expose how he had been treated by his institution and how his institution had been run.
I don’t know the motivation for making the revelations after death but one explanation might be to avoid the potential of being accused of libelling the institution while alive.
I’ve not linked to the message as I am mindful that even linking to libellous material can be actionable and while I’m prepared to make significant personal scarifies in the public interest I don’t want to be reckless as I consider I have a moral duty to do all I can to be independent and self supporting and the costs of even successfully defending a libel action could put that at risk.
There is some risk even in publishing this statement as it could be considered pointing to the material in question.
I think our current libel law prevents people exposing matters of public interest in relation to the way public bodies are run and public money is spent and I consider myself to be one of those gagged. My own approach has been to lobby for systematic changes to address the issues I’ve experienced and observed though making the case for change is harder than it would be with the support of detailed personal testimony detailing the impact of the problems.