18 No. 59 JUSTICE However, English defamation law38 does not protect nations, states or public authorities.39 Individuals and businesses are in principle protected. However, with the notable exception of Ariel Sharon (who brought a case against Time magazine in New York40 as well as Israel), it appears that Israeli politicians have not pursued defamation claims outside Israel. English defamation law was considered too generous to claimants, and significant changes were made to address this in the Defamation Act 2013.41 Section 1 of this Act provides that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” Furthermore, for this purpose “harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.” However, it does not appear that there is any requirement that the serious harm to the claimant’s reputation must occur in England and Wales.42 Coverage of Israel The question remains: why have the systems of regulation of the media in the UK not been more effective in securing more accurate and impartial coverage of Israel? One possible answer is that the systems of self-regulation of the BBC and of newspapers have generally lacked robustness and objectivity because they have not had the security and distance provided by independence; while the independent regulation of other broadcasters by Ofcom has been insufficiently used and tested. This theory would appear to be supported by data on complaints about the BBC obtained by a freedom of information request. Nearly 1.2 million formal complaints were made in the five years down to the end of financial year 2012/2013. Data was not kept on the number of complaints upheld in the initial stage, but anecdotal evidence is that very few are upheld at this stage. During the same period, 166 complaints (0.014% of the total) were upheld on appeal to the BBC Executive’s Editorial Complaints Unit and a further 30 were upheld by the BBC Trust (0.0025%). This does not look like a system that places “a complainant on an equal footing with the BBC” as required by the BBC Agreement. A second problem is that complaints are liable to be assessed by reference to the same material that led to the inaccuracy or distortion in the first place, such as reports of UN bodies and NGOs. Regulators are inclined to take the view that a broadcaster is justified in relying on an official UN document or a report of a highly reputed NGO such as Amnesty International, even though this material is often based on highly suspect information supplied by persons acting for or under the control of terrorists, who 38. Scotland and Northern Ireland have separate defamation laws. For a summary of the differences between Scots law and English law, see the Note by Brodies LLP available at http://www.brodies.com/node/4120 (last visited Mar. 5, 2017). As to the law of Northern Ireland and proposals for reform, see Dr. Andrew Scott, Reform of Defamation Law in Northern Ireland, Department of Law, London School of Economics and Political Science, June 2016, available at https://www.finance-ni.gov.uk/sites/default/files/ publications/dfp/report-on-defamation-law.pdf (last visited Mar. 5, 2017). 39. Derbyshire County Council v. Times Newspapers [1993] AC 534. 40. Behind the Sharon Verdict, L.A. TIMES, Jan. 27, 1985, available at http://articles.latimes.com/1985-01-27/opinion/op9876_1_ariel-sharon (last visited Feb. 21, 2017). 41. U.K. Defamation Act 2013, available at http://www. legislation.gov.uk/ukpga/2013/26/contents (last visited Mar. 5, 2017). 42. This point may be addressed in the forthcoming appeal in Lachaux v. Independent Print Ltd from the decision of High Court [2015] EWHC 2242 (QB). believe that their goals justify the use of false propaganda. Thirdly, free speech is generally favored and regulators seem to have accepted the fallacy that upholding a complaint of lack of due accuracy or impartiality is an interference with free speech. This is not correct where there is no prior restraint and no penalty; it is then merely an adjudication regarding the accuracy and impartiality of the content that was published. Regulators have also failed to appreciate the particular need for such adjudications where a nation, state or public body is defamed, since its reputation cannot be protected by a claim for defamation. Fourthly, it is possible that a preponderance of the individuals who determine complaints under these regimes have a “soft-left” political outlook in which they tend to see Zionism as an expansionist, settlement-colonialist enterprise, rather than the national liberation movement of the Jewish people. n Jonathan Turner is a barrister based in London and chair of UK Lawyers for Israel. Since the completion of this article, on November 29, 2016, the new BBC Charter and Agreement have been finalized and came into effect on April 3, 2017; see http://www.bbc.co.uk/bbctrust/ governance/regulatory_framework/charter_agreement.html (last visited May 9, 2017). In addition to the deficiencies indicated in the article, Ofcom will not have jurisdiction to consider complaints in respect of the BBCwebsite, world service or commercial services.
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