Media Law - Defamation

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• COMPOSITION OF A DEFAMATORY STATEMENT
• BURDEN ON THE CLAIMANT
• IDENTIFICATION
• PUBLICATION
• DEFENCES
• - Justifcation: truth
• - Fair comment: Opinion: reviews, satire
• - Privilege: Absolute and Qualified
• - Accord and Satisfaction
• - Offer of Amends

What the claimant must prove

Defamatory statements have the following potential qualities:

• Exposes a person to hatred, ridicule or contempt
• causes them to be shunned or avoided
• discredits them in their trade, business or profession
• lowers them in the minds of 'right-thinking' members of society.

A claimant only has to show the court three things when suing for libel:

1. the publication is defamatory
2. it may be reasonably understood to refer to him/her - identification
3. it had been published by a third person 

They don't have to prove:

1. that the statement isn't true. The statement is assumed to false by the court. It is the burden of the defence to provide justification that the defamatory statement was in fact true.
2. that there was intention. It is a weak defence to say that 'I didn't mean to damage that person's reputation' and presence of malice is even worse.
3. proof of actual damage. The potential for damage is what is concerned; a statement that tends to discredit is a defamatory statement. 

Identification

The claimant will need to prove that the published matter is or could (in the case of groups) be referring to them. Omitting the name of the claimant in the offending statement is not enough of a defence. The general test in defamation law is as follows - if enough detail is published for people acquainted with the claimant to believe a statement applies to him or her, then the case is legitimate.
"It is not necessary that all the world should understand the libel; it is sufficient if those who know the claimant can make out that he is the person meant."

Positive identification is very important to prevent accidental libel. In 1940, the Daily Express reported that 'Harold Newstead, 30 year-old Camberwell man' had been thrown in jail for nine months for bigamy. Another Harold Newstead who lived in Camberwell successfully sued for libel as it could just as easily refer to him - he said that it was the duty of the newspaper to provide more detailed information of the convict so as to avoid confusion with anyone else. Newspapers today go to great lengths to positively identify convicts or defendants in court cases - a picture, age, address and occupation are commonly shown if provided or mentioned in the court.


Defamation of a group - a defamatory statement which applies to a sufficiently small group of people is bad, as it will allow every member of that group to sue. Saying that 'one of the detectives at Springfield police station is corrupt,' without positive identification of that single detective, damages the reputation of every detective there. It identifies them in libel law to their acquaintances and colleagues, and they could easily sue and win in a libel action. Vague, controversial statements are therefore to be avoided which for the sake of proper reporting is probably a good thing.

Juxtaposition - a story concerning something defamatory can mark the reputations of somebody else who isn't even involved if the news items are arranged in such a way to look linked. The claimant(s) can then successfully sue if they can reasonably show that their reputation could be damaged as a result of thoughtless editing.

Publication

The claimant has to prove that the statement has been published. It cannot be a personal correspondence between the claimant and the one being sued in which something offensive was said. They must prove that the offending statement has been communicated to at least one other person. In the case of newspapers this is no problem to prove.


Internet publication - the court will never assume that internet publication is corollary to a widespread audience. Also, the recipients of the material must be in the same country as the claimant, or else damage to reputation can't really be a reasonable possibility.

Repeating statements of others - repetition of libel is bad. In each fresh publication, a fresh case is thrown open - the repetition rule. The person who originated the defamatory statement could be liable, but the publication who repeats it is as liable or perhaps more so, as they have chosen specifically to repeat their sentiment above anything else they could have published instead.

Online archives and repetition - the repetition rule is important for sites that contain archive material. The usual defence to libel action is that there was more than year between publication and the launch of the lawsuit. However, the law implies that whenever an archive is accessed it is akin to a new publication and can therefore be used in a libel suit. Therefore, anyone who is seeking damages for defamatory statements made in a newspaper article can sue twice if the same article is available online.

The section 1 defence - Newsagents and booksellers simply 'disseminate' of the passage of words and so are not responsible for their content. This defence was unavailable to distributors and broadcasters, until The Defamation Act in 1996 extended the defence. It now applies to anyone who was not the author, editor or publisher and who did not know that the publication contained a defamatory statement.

A court deciding whether a person took due care or has reason to believe that they could have contributed to the publication of the defamatory statement must regard:

• the extent of his/her responsibility for the content of the statement/decision to publish it
• the nature or circumstances of the publication
• the previous conduct or character of the author, editor or publisher.

The defence also applies to the broadcasters of live television as they have no control over the originator of a defamatory statement made on air.

ISPs also enjoy the protection of the section 1 defence as they are nothing than a passive 'host' on which defamatory statements may be published and play no role at all in what is published; they would be liable, however, if they failed to remove contentious material after they have already received complaints.

Defences

Six main defences journalists can ensure their article adheres to when researching a story:

• Justification
• fair comment
• absolute privilege
• qualified privilege
• accord and satisfaction
• offer of amends

Justification 

Justification is essentially truth; if in a libel case the defamatory statement can be proved to be true, then it provides complete protection. It is the job of the defence to do this - the claimant only has to prove that the statement has potential to defame, that it was published and that the claimant is identified. 

This defence applies to statement of fact (that someone has had an affair or is entangled in a legal dispute when they claim not to be), as opposed to an expression of opinion (that John Doe is stupid and ugly)

The standard of proof is thankfully lower than in criminal cases - 'on the balance of probability' instead of 'beyond all reasonable doubt.' The defence must have sufficient evidence in the form of documents or witnesses that are prepared to give testimony in court.

Levels of meaning and reporting police investigations

When considering reports that will link a claimant with criminal conduct, the courts recognise three levels of meaning:

• the report indicates the person is guilty of the criminal offence (Level 1 meaning)
• it indicates that they are reasonably suspected of the offence (Level 2 meaning)
• or that there are grounds for an investigation (Level 3 meaning)

Providing reasonable suspicion -

It is defamatory to say that a person is reasonably suspected of an offence (and leaving it at that) as it implies something about a person's conduct to warrant the suspicion. To have justification as a defence you must prove that their conduct is capable of arousing that suspicion.

In 2003 the Sun had to pay £100,000 in damages to a children's nurse for running the headline 'Nurse is probed over 18 deaths.' She had been under investigation for the deaths of terminally ill children at the time the story was published but police then concluded that there were no grounds to suspect her. The Sun tried to show that there were reasonable grounds for suspicion, but they were relying on the fact that there had been a number of allegations against her which is not satisfactory proof in any court. - Elaine Chase v News Group Newspapers Ltd [2002]

Avoid implying habitual conduct -

To say of a person that 'they are a thief' may be true in the most simple and literal sense, but if that conviction applies to a one-off for a relatively minor theft (e.g. halfinching a packet of bacon from the local Co-op in their youth.) 

The connotations of branding someone as a 'thief' so absolutely implies that that is what that person does for a living and that they are a habitual re-offender.

This is where a defence of justification may fall down, and many libel cases arise where a journalist implies habitual conduct from a single incident.

Fair comment


The defence of fair comment protects published opinion which is not pretending to be factual.

Main requirements of the fair comment defence:

• the published comment must be the honestly held opinion of the person making it
• the comment should be recognisable to the reader/viewer/listener as opinion - cannot be worded as factual allegation
• the comment must be based on provably true facts/privileged matter
• those facts/matter must be recognisably alluded to in what is published with the comment, unless the fact is so widely known that it is unnecessary 
• the subject commented on must be a matter of public interest

All of these requirements must be met for fair comment to succeed.

Opinion must be 'honesty held', not 'fair' - 

Truth is not applicable to a comment - its subjective nature makes it impossible. A comment can be responsible/irresponsible, informed/misinformed, constructive/destructive - it cannot be held as true or false. Defendants using fair comment do not need to persuade the judge or jury to share their views. Instead, what they must do is show the jury that the comment based upon established facts is a view that a person could reasonably and honestly draw on those facts.

Proof of malice may undermine the fair comment defence - 

Malice has different meanings depending upon whether the claimant is considering fair comment or qualified privilege as a defence. Malice in the case of fair comment would undermine whether the comment the person has expressed is their honestly held view (as it would be impossible to determine if it was simply to cause embarrassment or injury to the claimant), and as such would invalidate the claim to fair comment as it being their honest opinion is one of the requirements.

Reviews, Humour, Satire, and irony
Fair comment protects the expressions of opinions contained in reviews of music, books, holidays and restaurants. Cases which attempt to sue writers of reviews and satire usually fail - in 2008 Sir Elton John sued the Guardian for libel over a spoof article which was a weekly instalment in the newspaper and so clearly identifiable as humour. Sir Elton claimed that the article was implying his charitable commitments were insincere and that most of the money he has raised will go towards a charity ball rather than useful causes. Mr Justice Tugendhat ruled his claim out, saying that if the Guardian had found actual evidence that this was the case then it would no longer be fair comment and constitute a serious story; they hadn't, and so the comments expressed were just a form of teasing and protected under fair comment.


Privilege

These are occasions where the public interest demands that there must be complete freedom of speech, without any party involved being at risk for defamation proceedings even if the statements are defamatory.
Privilege exists under common law and statute.

Absolute Privilege
Falseness of a statement and malice are inapplicable where absolute privilege exists. However, transferral of what is said on an occasion in absolute privilege to a publication will only enjoy qualified privilege. E.g. Members of Parliament have absolute privilege and can say whatever they want to each other in the House of Commons, but a journalist reporting what they have said may find themselves open to defamation writs.
Qualified privilege is still a sound defence in court to defamation, but it depends on there being a proper motive in publication (usually public interest.)

The only time that journalists have absolute privilege is when they are reporting court cases, and then there are requirements that what is published is:

• 'a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously.'

Absolute privilege for court reports is vital for the media as most of what is said in court is highly defamatory and it would be impossible to report it without a sound legal defence against libel. The court wants the media to report these cases in the first place as it wants the public to see that justice is being done.


Reports must be fair -
A report must contain:

• a summary of both sides
• no substantial inaccuracies
• no disproportionate weight to one side or the other

In 1993 the Daily Sport paid damages to a police officer acquitted of indecent assault. The paper had reported the opening of the case by the prosecution and the main evidence of the alleged victim but did not include her cross-examination by the defence on the same day which subsequently weakened her entire allegation. The paper later printed the officer's acquittal, but he still decided to sue for defamation.

Reports must be accurate -

All allegations in court reports must be attributed to their originator or the publication runs the risk of presenting these allegations as fact. i.e. to say that 'Brown had a gun in his hand' is incorrect, 'Smith said Brown had a gun in his hand.' is correct.

To incorrectly identify someone as a defendant when they are only a witness/unconnected to the case, or be inaccurate about what charges they face leaves a media organisation with no protection at all.

Reports must be contemporaneous -

Contemporaneous means 'as soon as practicable' e.g. in the first issue of the paper following the court's session. In cases of court orders preventing the immediate publication of certain matter, the definition of contemporaneous extends to 'as soon as practicable after publication is permitted.'

Protection only for reports of proceedings - 

"Extraneous comments can be included or other factual material but it must be severable, in the sense that a reasonable reader could readily appreciate that the material did not purport to be a report of what was said in court."

Privilege does not protect defamatory matter shouted out in court e.g. from the public gallery by someone unrelated to the proceedings, but if they were somebody who had given evidence as a witness in that case then inclusion of the comment in a court report would be protected under qualified privilege.

Qualified Privilege

Qualified privilege is available as a defence when it is deemed that the facts in the publication should be freely known in the public interest.

Qualified privilege by statute - 

Qualified privilege differs from absolute privilege in that the motive of publication must be clear and free of malice. Reports of proceedings listed by the Schedule 1 to the 1996 Act must be fair, accurate and published without malice, and also that the matter published generally be in the public interest.

In respect to malice, Lord Nicholls said that 'the purpose of the defence of qualified privilege is to allow a person who has a duty to perform, or an interest to protect, to provide information without the risk of being sued. If a person's dominant motive is not to perform this duty or protect this interest, he cannot use the defence.'

Accord and satisfaction

This is a plea that the matter has already been settled e.g. by publication of a correction and apology which has been accepted by the claimant as a settlement of his complaint.

'Without prejudice' -

A solicitor writing on behalf of a client demanding a correction and apology will always avoid the inference that this apology will be enough in itself to avoid a defamation lawsuit, and make it clear that the request is made 'without prejudice' to any other legal action that may become necessary.

'Without prejudice' in this case means 'off the record' - during the negotiations where the two parties may try to settle it out of court, anything discussed cannot be used against a party in a court of law if this attempt fails.

Offer of amends

The media can defame a person unintentionally in various ways, but the Defamation Act 1996 provides for a defence known as 'offer to make amends.' To use this defence, 'a defendant must make a written offer to make a suitable correction and apology, to publish the correction in a reasonable manner, and to pay the claimant suitable damages.'

It can only be used where the defendant had no reason to believe that the statement complained of referred to the claimant, and that said statement was defamatory of them.

The claimant can prove that the publication of the statement was not 'innocent' if they wish to reject this offer.

The offer of amends must be issued quickly after a complaint; a judge may 'discount' resulting compensation in a libel case if the editor provides a 'speedy, unequivocal and prominent apology' to the claimant. 

The offer is binding; the Court of Appeal refused to allow publishers Random House to withdraw their offer of amends where they wished to use the defence of justification instead after new evidence came to light.