CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)