Law 2: Defamation and Libel

PUBLICATION + DEFAMATION + IDENTIFICATION = LIBEL

The odds really are stacked against journalists when it comes to libel and although times are changing with high profile campaigns pushing to get libel laws relaxed (and even for the law to only apply to individuals, and not companies like it currently does) the flakiness of the burden of proof shows just how careful you have to be when writing anything controversial.

http://www.indexoncensorship.org/ - A good international resource for journalists exploring censorship and freedom of speech.

Defamation checklist:

If what you have published about someone or a company could be described as tending to:

• LOWER them in the estimation of right thinking people; or
• Cause them to be SHUNNED or AVOIDED; or
• DISPARAGE them in business, trade or profession; or
• Expose them to RIDICULE and CONTEMPT...

  ... then you're going to have a bad time.

Always remember that the burden of proof lies on you, the publisher, to defend a defamatory publication in a libel lawsuit. The threshold for proof is another problem - it's lower here because libel is not dealt with in criminal courts (where something must be proven "beyond reasonable doubt") but in civil courts (where the standard is "on the balance of probability.")

Despite being dealt with through the civil courts, a libel case will still ultimately be tried in front of a jury in a high court. All the libel lawyer in this case has to do is convince the jury that the defamatory statement probably makes their client look bad; they don't have to put forward any tangible evidence that the defamatory work has indeed damaged their client's reputation.

In the other corner of the ring, you can only hit back with the following:

• JUSTIFICATION - truth. Specifically, the special kind of journalistic truth that can be backed up with evidence admissible in court. This is the standard every journalist should be working to anyway, and why we are always encouraged to hold on to our shorthand notes and rushes. But no one is infallible, and apparently nastier litigious types will purposely wait until close to the one year time limit to sue in the vain hope that the journalist will have lost or binned their notes and rushes. That time limit used to be much longer, but it's still a good idea to archive notes and rushes for as long as is practicable. 
• PRIVILEGE - absolute and qualified privilege. Absolute or Parliamentary privilege refers to the right of members of the House of Lords or Commons to speak freely. They can say anything they want without fear of being sued - in the past, MPs have used this privilege to break overblown super-injuctions like the one Ryan Giggs took out last year. Qualified privilege refers to those in a position of authority or trust, such as the courts or the police, who can also make statements without fear of libelling anyone. Journalists can repeat statements made by these authorities with near impunity, as long as the report is fast, accurate and fair.
• FAIR COMMENT - publication of an honestly held opinion based on privileged material and in the public interest.
• PUBLIC INTEREST - something which is a matter of concern to the public. If they are being misled by someone in a position of trust or authority or if it is a matter of public health, then there is very much a public interest defence available. E.g. publishing findings about fast food restaurant employees spitting in food is defamatory, but completely in the public interest if it is true.
• BANE AND ANTIDOTE - defamation removed by context. E.g. publication of defamatory photoshopped images, but then later on in the article making it clear that they are faked up.
• APOLOGIES AND CLARIFICATIONS - settled before it even gets to court. Promise to rectify mistake and issue a retraction or broadcast an apology on air in a timely way.

Picture libel - especially important for broadcast journalists

Or juxtaposition libel. Here are some examples of how it happens:

• During a report, cutting to a random GV with an identifiable person walking along the road as details about the story being voiced; this could reasonably be argued that the story is about the man on the street because there is a strong inference that because he is in vision, that he is the subject of whatever contentious details are being spoken of
• In a court report - if you're using a GV of the defendant and their family walking in to the court, it is very important to clearly identify which one is the defendant in the voice over, or you risk libelling everyone else in the shot because it will be unclear who is standing trial.

You've generally got to be really careful when using 'wallpaper shots' or GVs - simply pasting a random shot of a street to cover a jump cut is not only lazy, it's dangerous. In one of my own news reports, I showed an image of a certain website while I was talking about adverse health effects - the owners of the website could easily claim that it looked like I was saying that they were responsible for these health effects, and I had to change it.

While it's overwhelmingly unlikely that I would have been sued, it's just good practice to be vigilant about that kind of thing. Avoid innuendo at all costs, even innuendo you (paradoxically) didn't actually intend. It also highlights the importance of writing to your pictures, as opposed to bolting your script down and then awkwardly shoving your pictures over the top of it.

The Reynolds Defence

This defence stems from a landmark case where a judge ruled in our favour and set out the guidelines for a public interest defence against libel. Albert Reynolds, a former Irish Prime Minister, sued the Sunday Times over a story which he thought led people to believe that he had deliberately misled his government.

The Sunday Times lost a subsequent appeal, but during the appeal Lord Chief Justice 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 Nicholas said that the court must consider the following things when looking at the Reynolds defence:

• 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.
• The nature of the information, and the extent to which it is a matter of public concern.
• 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.
• The steps taken to verify the information.
• The status of the information. The allegation may have already been the subject of an investigation which commands respect.
• The urgency of the matter. News is often a perishable commodity - i.e. the subject may just be fashionable at the time
• Whether comment was sought from the claimant. He may have information no-one else had access to.
• Whether the article contained some mention of the claimants side of the story.
• The tone of the article. It cannot adopt allegations as statements of fact.
• The circumstances of the publication, including the timing.

A defenseless position

So, when do you have no defence at all and what do you have to do to effectively end your professional working life as a journalist?

• Not checking facts. You should always double-check your sources, even or especially if it came from another news agency; just because they published it, it doesn't necessarily make it true and a childish 'They did it too!'-style excuse does not hold up in court (Spycatcher case)
• Not 'referring up' - if you're not sure about something, always consult your editor. They are paid to make the tough decisions and if they clear something then it is on them, not you. If you make a bad decision without consulting others then it is on your shoulders completely.
• Getting carried away by the story - trying to over-egg it and forgetting to put yourself in the shoes of the person you're writing about.
• Not consulting the shift lawyer.

Recognising risk

A few things to consider before each and every publication:

Who am I writing about, and could they sue?

If you're writing about someone who has no money and whose reputation is already in the dirt then it's probably going to be okay, but this isn't likely to make an interesting story anyway. Attacking celebrities and big companies are much more of a concern and you want to be absolutely sure that what you're saying is provable. Simply be aware of who the litigious people are and unless you have a really good reason to write about them, avoid them.

Is what I'm writing potentially defamatory?

Could it reasonably be construed as damaging to someone's reputation?

Do I have a defence?

You need to be able to pick one or more: justification, fair comment, privilege, public interest.


Learn it, kids. Libel cases can cost millions of pounds in settlements and legal fees; better safe than sorry.