Media Law - Defamation Cont.

The Reynolds defence

The Reynolds case in 1998 recognised that journalists have a duty to tell their readers about certain stories, and that this duty affords a certain privilege defence against libel action.

The defence was born when a former Irish Prime Minister, Albert Reynolds, sued the Sunday Times over a story which he thought led people to believe that he had deliberately misled his government by suppressing important information concerning the High Court.

Although the Times lost in a subsequent appeal, the Lord Chief Justice (Lord Bingham) said: "As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty."

Lord Nicholls set out a list of circumstances to be examined by the court when looking at this defence:

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed/the individual harmed if the allegation is not true.
2. The nature of the information, and the extent to which it is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of events, may be acting in their own interest or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity - i.e. the subject may just be fashionable at the time
7. Whether comment was sought from the claimant. He may have information no-one else had access to.
8. Whether the article contained some mention of the claimants side of the story.
9. The tone of the article. It cannot adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.

Criminal Libel, slander, and malicious falsehoods

The preceding instances of libel have treated libel as a tort - a civil wrong that can be awarded with damages.

Libel can also be a criminal offence, of which it can take two forms:

• defamatory libel
• seditious and obscene libel

Prosecutions using these forms of libel are unlikely nowadays but still possible.

Criminal defamatory libel - 

Libel in this case is not the same as defamatory libel in civil law, where the remedy is in the form of damages paid to the claimant. Publication of libel that can actually be considered a crime could be statements which might lead to a breach of the peace. It is punishable by a prison sentence of up to a year, and if it can be proved that the originator knew the statements to be untrue then this can be doubled. The CPS is, however, reluctant to use the law of criminal libel where civil law would serve the situation better.

Publication -

to sustain a prosecution for criminal libel the words must be written, or be in some permanent form - but there is no need for publication to a third party. It would be enough to have a letter containing inflammatory material addressed to the person who is defamed written by the defendant, as this in itself could breach the peace.

Libelling the dead -

Libel of the dead may be the subject of a prosecution in criminal libel law if they were said specifically to elicit a response from someone who is likely to breach the peace. Slandering somebody who's dead to someone who is mild mannered, therefore, is fine.

Slander

Generally speaking, libel is in some permanent form e.g. written words, a drawing or photograph) whereas slander is spoken or in some transient form.

There are exceptions:

• a defamatory statement broadcast on radio or television, or in a cable programme, which is treated by the Broadcasting Act 1990 as libel
• a defamatory statement in a public performance of a play, by virtue of the Theatres Act 1968.

A main difference between slander and libel is that no actual loss is automatically assumed in slander and it is up to the claimant to prove that there is some potential for their reputation to be marked.

Malicious falsehoods

A malicious falsehood is an action for a statement which could not reasonably be deemed as defamatory (e.g. reporting that a solicitor has retired when they have not) but has still caused the claimant to incur some damage (in that case, their clients looking for other solicitors.) Unlike libel, it is entirely the burden of the claimant to prove that there has been actual damage for which they should be rewarded, AND that the statement was published with malicious intent. They're fairly rare.