‘How to Know the Truth: Accommodating Religious Belief in the
Law of Libel’, in Bellanger (ed) Legal Cases Involving New Religious
Movements (Farnham: Ashgate) (with Alastair Mullis) [FORTHCOMING]
While religious pluralism, liberty and equality are now general cultural and legal expectations in the UK, the history of interplay between religious identities is one of intellectually - and sometimes physically - violent discord. Today, religious frictions persist as an inevitable facet of a plural society. Both low-level antipathies and serious religious disputes are driven by such factors as long-standing and incipient factionalism within religious groupings, more or less aggressive secularist critique, and resentment among some faiths of the proselytising zeal of others. From time to time, the law of libel is invoked to resolve disputes engendered by religious difference, notwithstanding that it is inherently difficult for any purportedly neutral, secular law properly to adjudicate between competing conceptions of the righteous and the good. This chapter proceeds in four parts. First, we outline the basic features of English libel law to underpin the subsequent discussion. Secondly, we suggest a typology of criticism of religious faiths and their adherents, and indicate how each type of allegation would be countenanced by the law. Thirdly, we criticise the approach adopted by the English courts to one type of allegation: those that involve specific allegations of fact but which rest on questions of religious doctrine. We find that by abjuring any role on grounds of non-justiciability and deference to religious modes of dispute resolution, the courts may systematise the disadvantage of already marginalised groups. Finally, we suggest a conceptually and jurisprudentially preferable manner for the resolution of such cases that would properly ensure the neutrality of libel law as between disparate views on questions of religious faith.
Saskia King and Andrew Scott, ‘Effect on interstate trade: An
overview of EU and national case law’ (October 2012) e-Competitions,
special issue
'The Swing of the Pendulum: Reputation, Expression and the
Recentering of English Libel Law' (2012) Northern Ireland Legal Quarterly,
63(1), 27-58 (with Alastair Mullis)
The design of any libel regime must involve an appropriate accommodation between individual rights and social interests in both freedom of expression and reputation. For 20 years, British legislation and jurisprudence on libel has been driven almost exclusively by the perceived need for existing rules of law to comply with Article 10. Freedom of expression has been regarded as the 'trump card'. In the light of developments in European and English jurisprudence, this approach is no longer tenable. Reputation has been confirmed as part of the Article 8 right to respect for private life and must be balanced against Article 10 when legislation is passed and when courts determine disputes. Yet, it is not clear that a coherent intellectual underpinning has been articulated by the courts to explain this jurisprudential innovation. After reviewing the development of the law and the rights context, this paper considers the four main justifications offered by judges and others to explain the articulation between reputation and privacy. It contends that only one of these justifications is coherent, and sets out a dualistic understanding of reputation that values both public perceptions of the character of an individual and that individual’s sense of self-esteem engendered by the perceived quality of this public regard. It suggests that only insofar as the latter aspect is impugned should reputation fall within the ambit of Article 8. The paper reflects on the possible ramifications of the rights-based resurgence of reputation for a number of areas of the extant law.
'The Evolution of Competition Law and Policy in the United
Kingdom', in Mehta (ed), The Evolution of Competition Laws and their
Enforcement: A Political Economy Perspective (London: Routledge), 189-213
'Reframing Libel: taking (all) rights seriously and where it
leads' (2012) Northern Ireland Legal Quarterly, 63(1), 5-25 (with
Alastair Mullis)
In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law, its purposes, its substance, and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation and privacy. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice, simplify processes and reduce costs for the vast majority of libel actions. In essence, our proposal involves the recommendation of a two-track libel regime. The first track in this new regime would comprise a much-simplified process, and could be administered by an appropriately designed self- or statutory media regulator. The overwhelming majority of cases would be addressed by this route. The primary remedies available would be discursive in character, normally either a correction or retraction. Recoverable costs would be limited. The second track would be limited to aspects of the most serious and/or most damaging libels. Those aspects of cases referred out to track two would continue to be heard in the High Court.
‘A Moving Target for Reform: Developments in the English
Common Law of Libel’ (2011) Media & Arts Law Review, 16(2) pp. 204-217
(with Alastair Mullis)
‘Worth the Candle?: the Government’s Draft Defamation Bill’
(2011) Journal of Media Law, 3(1) pp.1-17 (with
Alastair Mullis)
The Government has published a draft Defamation Bill and Consultation Paper which invites comment on the Bill itself and a number of other matters. This paper offers a critique of the Bill which in our view fails to take what is an historic opportunity to create a modern law that properly triangulates the rights and interests of claimants, defendants and the wider public. Several provisions of the Bill purport simply to restate the existing law, others are more radical but the radicalism is all in favour of increased freedom of expression. Insufficient account is taken of the article 8 right to reputation. The result is a Bill with a few sensible provisions, but overall the impression given is that there has been no serious contemplation of the breadth of interests at stake where one person publishes an untrue statement about another. If reform is to be effective and the rights of claimants, defendants, and the wider public are to be properly protected, such a fundamental re-examination is essential. It is to be hoped that during the consultation period that has now begun, this task can be properly recognised and undertaken.
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‘Media Mergers’, in Scott (ed) Broadcasting
(Halsbury’s Laws of England, LexisNexis, 2011), 794-804
‘Lord Lester’s Defamation Bill 2010 – a distorted view of the
public interest?’ (2011) Communications Law 16(1) pp.6-19 (with
Alastair Mullis)
Evaluates the provisions of the Defamation Bill 2010,
highlighting the beneficial reforms and those which appear misguided. Responds
to the justifications for reform in the explanatory notes, including the alleged
inadequacy of Reynolds privilege, the lack of clarity over internet publications
and the need to make the law more favourable to the media. Comments on every
clause, including the approach to responsible publication, honest opinion,
statutory privilege, multiple publications and the need for substantial harm,
and assesses whether the Bill's view of public interest is distorted.
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'L’Icelandic Modern Media Initiative: une évaluation
juridique', in Mbongo (ed) Philosophie Juridique du Journalisme: la liberté
journalistique en Europe et en Amérique du Nord (Paris: Mare et Martin,
2011) (transl. P. Mbongo)
'Prior Notification in Privacy Cases: a reply to Professor
Phillipson' (2010) Journal of Media Law 2(1), 49-65
In a recent edition of this journal, Professor Gavin Phillipson
considered whether the UK must impose a prior notification obligation on the
media in respect of stories that concern the private conduct of individuals.
Such a notification requirement would allow time for the subjects of such
stories to seek interim relief to prevent publication. Max Mosley has asked the
European Court of Human Rights to oblige the UK to introduce such a rule.
Professor Phillipson concluded that Mosley should win his case. This paper
proceeds, first, by questioning the fundamental premise of the Phillipson /
Mosley argument: that damages are inadequate to compensate harms done through
publication of private information. Secondly, it considers the practical
ramifications of the imposition of a prior notification requirement, both in
terms of the 'workability' of a legal obligation and the impact it would have on
media freedom. Thirdly, it airs the question of whether - in light of the margin
of appreciation afforded to contracting states - it would be legitimate for the
Strasbourg court to compel the introduction of a specific measure to assist the
protection of privacy. The paper concludes that the European Court should not
find the UK in breach of its obligations. Nevertheless, it closes with
reflections on the desirability of prior notification, and the availability of
other available means to encourage the practice.
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'Something rotten in the state of English libel law? A
rejoinder to the clamour for reform of defamation' (2009) Communications Law
14(6), 173-183 (with Alastair Mullis)
Comments on the debate concerning English libel law and the
calls for reform particularly by those seeking greater freedom of expression.
Suggests that the debate has been dominated by the one-sided perspective of the
print media. Observes the existing state of the law and highlights those
criticisms of existing law that in the authors' view are: (1) based on errors or
misunderstandings; (2) based on misjudgements; and (3) have some substance and
are worthy of further consideration. Identifies those areas of libel law which
do not warrant reform and those areas which should undergo constructive revision
including the costs of proceedings.
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'Interference With Witnesses', in Cram (ed) Borrie
& Lowe: the Law of Contempt. 4th edn (London: LexisNexis, 2010)
'Flash flood or slow burn? Celebrities,
photographers and the Protection from Harassment Act' (2009) 14(4) Media &
Arts Law Review 397-424
'The Same River Twice?: Jameel v Wall
Street Journal Europe' (2007) Communications Law, 12(2),
52-59
‘Tweedledum and Tweedledee?: Regime
Dynamics in US and EC Merger Control’. Marsden (ed),
Handbook of Research in Trans-Atlantic Antitrust (London: Edward
Elgar,
2007)
‘Last Rites for the Two-Thirds Rule in EC Merger Control?’ [2006]
Journal of Business Law, 619-630
‘Cain and Abel?: Trade and Competition Laws in the Global Economy’
(2005) Modern Law Review, 68(1), 134-154
‘The Cutting of Teeth: IBA Health v Office of Fair Trading’ [2004]
Journal of Business Law, 672-683
Examines the Court of
Appeal's judgment in IBA Health Ltd v Office of Fair
Trading on whether the Office of Fair Trading (OFT) had
erred by failing to refer a proposed merger between two
leading providers of healthcare software to the
Competition Commissioner for an investigation of its
likely effect on competition. Looks at the legal and
factual background to the case, focusing on: (1) the
interpretation of the Enterprise Act 2002 s.33 and the
respective responsibilities of the OFT, the Competition
Commission and the Competition Appeal Tribunal; and (2)
the OFT's duty to give reasons to support its decisions.
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'"A Monstrous and Unjustifiable Infringement”: Political Expression
and the Broadcasting Ban on Advocacy Advertising’ (2003) Modern
Law Review, 66(2), 224-244
This paper considers the
legality of the broadcasting prohibition on 'advocacy
advertising'– the use of advertising space to
communicate social, political and moral arguments to a
wider public – in the light of the growing jurisprudence
on the freedom of political expression. The prohibition
is currently found in the Broadcasting Act 1990, and the
Government has proposed its reiteration in the
forthcoming Communications Bill to fall within the
regulatory ambit of OFCOM. The paper begins by
introducing and illustrating advocacy advertising and
the restrictions upon it. It proceeds to review the
relevant jurisprudence on political expression, to
analyse the familiar arguments in favour of retention of
the prohibition, and to weigh the counter-arguments. The
paper concludes that the purported justifications sit
ill against existing legal rulings, and evidence a poor
understanding of the critical sophistication of the
public as a broadcasting audience. It suggests that a
continuation of the prohibition would be unlawful.
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‘Winter Talk by the Fireside?: Tacit Collusion and the Airtours
Case’ [2003] Journal of Business Law, 298-314
Andrew Scott
MediaPaL@LSE
