CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 1997

.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. 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 Watts, an author ("the author"), and the similarities between his award-winning book and an unpublished manuscript by another writer.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