Tuesday, November 13, 2012
For those following the British BBC scandal, the issue of Lord McAlpine's possible legal actions for defamation or libel - - - and against whom - - - raise comparative free soeech doctrines and theories.
An excellent discussion of the BBC controversy is over at Inforrm, including this useful background:
On 2 November 2012 the BBC Newsnight programme broadcast an item about sexual abuse at children’s homes in North Wales. One victim, Steve Messham told the programme that the inquiry uncovered just a fraction of the abuse. He said that his abusers included “a leading Tory politician of the Thatcher era”.
The fact that the programme was going to make these allegations was widely reported before transmission and the “leading Tory politician” was identified on Twitter before broadcast as Lord McAlpine. His name was widely disseminated on the internet after transmission but was not mentioned in the mainstream media.
On 8 November 2012, the “Guardian” reported that “Mistaken Identity” had led to the abuse claims against the “Top Tory”, and named Lord McAlpine as the Tory in question. Lord McAlpine then issued a statement denying the allegations Mr Messham apologised to Lord McAlpine over mistaken identity. The BBC apologised for the Newsnight report and, on 10 November 2012, the Director General, George Entwistle, resigned.
For ConLawProfs interested in the free speech aspects of the BBC/McAlpine "affaire," a good place to start is Marin Roger Scordato's 2007 article, The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law, published in Connecticut Law Review and available on ssrn. After analyzing a landmark 2006 case, Scordato argues that while the definition of protected speech in England “is more direct and very likely more accurate than its American counterpart, it fails to meaningfully distinguish among plaintiffs who arguably are in significantly different circumstances as possible victims of defamatory publications.” Moreover, although the English standard “looks more broadly and thoroughly at the journalistic practice of the defendant, it does not ultimately provide to the valued speech the same level of protection from liability as the American actual malice standard.”
The status of the BBC as a governmental - - - or quasi-governmental - - - entity also complicates the "free speech" issues.