Can trade unions sue for libel?
09/07/2024
When it comes to assessing the risks involved in publishing an article, key considerations include who could sue you and for what. Keeping a mental list of which bodies are able to sue in defamation is therefore good practice for editors and journalists alike.
An individual, a corporate body and a partnership are all capable of suing in defamation. Organs of government – such as a police force or local council – cannot.
But what about the various grey areas in between?
Well, following the recent case of Prospect v Andrew Evans in the High Court, ‘trade unions’ may now be added to the list of entities which can sue for libel.
Prospect, a trade union, has brought claims in defamation and malicious falsehood against Mr Andrew Evans, a member of that trade union at the time of the relevant publication (but now a former member). Mr Evans argued the union did not have standing to sue in defamation and applied to strike out the claim.
Trade unions are unincorporated bodies and the question of whether they have the necessary personality to sue in defamation has been questioned. Most significantly, a previous 1980 High Court decision had ruled trade unions could not sue.
In that case Mr Justice O’Connor cited the Trade Union and Labour Relations Act 1974 which states “a trade union which is not a special register body shall not be, or be treated as if it were a body corporate”. The Judge went on to say trade unions therefore could not be treated as corporations or quasi-corporations and as a consequence, could not sue in defamation. In the Prospect case, the Defendant (Mr Evans) argued this judgment decided the issue.
However, Mrs Justice Steyn, deciding the issue in the Prospect case, said it was not necessary for a body to have corporate personality to be capable of bringing a libel action. She pointed out a partnership can sue in the firm’s name for defamation, without being treated as a quasi-corporation. So a prohibition on treating a trade union as a quasi-corporation would not automatically deprive it of the right to bring such a claim.
Given a trae union is somewhat like a partnership, and given it had been recognised as such for decades, Steyn J. ruled it could bring libel proceedings in its own name.
The judge commented that her conclusion was “consonant with the fact that a trade union has a distinct reputation, separate from its members; and it avoids the surprising imbalance to which the defendant’s interpretation would lead of an employers’ association being able to sue in libel, but not a trade union, and of a union being capable of being sued in libel, while having no right to bring such an action”.
Publishers may note from this decision that the question of whether a particular entity can sue in libel is often complex. Indeed, some of the academic commentary cited suggested the correct question to ask – when determining whether an entity has standing – is whether the entity in question has a reputation that the law ought to protect.
Steyn J. certainly endorsed the idea that it will be rational if an entity which has a distinct reputation and is capable of being sued in libel also has a right to bring such an action.
This decision has significant implications for the reporting of labour disputes; and when it comes to commenting on the conduct of a trade union in any such dispute, the days are now gone when anything goes.
That said, journalists should remember that the golden rule still always applies: even if you are writing about an entity which cannot sue, you still run a risk of defaming individuals within it.