Media Law Lecture Notes 3: Defamation, Libel and Slander

October 16, 2011

Defamation
Defamation is where a published statement effects the reputation of an individual or small group, therefore effecting their business or causing a reasonable person to think worse of them.

The most generally accepted definition of a defamatory statement is by Professor Winifield: 

'Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person."

A statement is defamatory if it: 
  • Exposes a person to hatred, ridicule or contempt 
  • Cause a person to be shunned or voided 
  • Lowers a person in the estimation of right thinking members of society 
  • disparages a person in their office, profession or trade. 
You can defaming someone if you repeat defamatory comments previously published by others, for example quoting someone. 

Any living individual or company can sue as long as they are reasonably identifiable from what is said and the material is defamatory of them.

It is the biggest legal pitfall in broadcasting, with serious financial consequences. The threat of action for defamation is one of the key factors journalists should be aware of. 

Individuals who's privacy has been invaded by the media can seek protection by defamation. 

Who is responsible? 


  • commercial publishers 
  • authors 
  • journalists 
  • newspaper/magazine/journal editors 
  • tv editors/producers 
  • internet editors 
  • all other newspaper sources online.  
The media must take care not to publish inaccurate, misleading or 
distorted information, including pictures -a significant inaccuracy, misleading statement or distortion must be corrected as soon as it is discovered, and, where appropriate, an apology must be published. 

A court does not accept the excuse that your intention was not to defame a person. 

It is important to remember that people outside the country can sue in the British courts if something defamatory is published or broadcast from the UK about them. 

People can sue for this if they have a reputation to protect in the UK, for example if they own a business here or trade with UK businesses.  

What the publisher should consider: 

Before publishing any statement which may have a chance of being used to claim defamation, a publisher must ask these questions: 
  • Is the statement true? 
  • Do I have evidence to prove it is true?
  • If not, can it be defended with another defence of defamation? 
  • Is the subject likely to sue? 
Types of Defamation:

The distinction between libel and slander lies solely in the form of the comment. 

Libel: is defamation in a permanent form - something that is published, broadcast, printed, recorded or even a statue, chalk marks on a wall, songs and pictures can be classed as libel material. 

Slander: is a defamatory comment in a transient form, e.g. spoken or gestured. Although once something is broadcast/published it becomes permanent - and so becomes libel.  

-Libel and slander both require publication (publication meaning the comment being viewed in any form by more than one person).  


Limitation period: 


Under section 5 of the Defamation Act 1996, claims must be bought to court within 1 year. 


Before this, claims would need to be bought within 3 years. 


However there is no 'single publication' rule under English law, meaning every publication is categorised as a separate cause of action. Therefore it is very difficult to say where the year limitation period ends. 

Damages: 

The distinction between libel and slander id only relevant to the issue of damages. Damage is presumed in libel cases whereas in slander cases the claimant must prove actual lose, unless the allegation is within one of the four exceptions where damage is presumed: 
  • An allegation that the claimant has committed a crime punishable by prison 
  • An allegation that the claimant is suffering from a contagious or infectious disease
  • An allegation that the claimant is an unchaste woman or allegations that a woman has committed adultery. 
  • An allegation that is likely to damage the claimant's business or profession. 
What the prosecution need to prove: 
  • the statement is defamatory 
  • words must be shown to have defamatory meanings 
  • the defendant's statement refers to the person prosecuting (a reasonable person must think so)
  • the statement has been published 
What the prosecution do not need to prove: 
  • the statement is false (defendant needs to prove this) 
  • there was any intention to discredit 
  • any damage the defendant's reputation has taken
Reputation

The current reputation of the claimant is very relevant. 

The main point to remember is that any comment lowering a persons current reputation can be seen as defamatory. If someone has an already low reputation then it will be hard for them to prove you have lowered there reputation. However, this does not mean that you can defame those with low reputations; especially if they've become a reformed character. 

How to avoid:  

Ways of avoiding defamation can be as simple as checking your spelling. 
If you write an article about someone, however true it is, but then spell the persons name wrong the person with the misspelt actual name can then sue for defamation. 

However, with cases that someone has the same name as the person who is mentioned in an article, it is always best to include a picture and background information if you can (refer to lecture 2 notes notes on court reporting). This is called positive identification. 

Defences: 

There are several defences journalists can use against defamation:  

Justification: 

A defendant has a defence for defamation if the statement was in fact true (as long as it can be proved). 

The law will assume that whatever the claimant has complained about is false; you therefore have to prove to the court that your statement is true. 

It is not necessary to prove that every single detail of the statement is true, as long as the article as a whole is accurate. 

-The defence of Justification will fail if you do not have evidence that can be used in court.

It is therefore important that if you're intending to rely on the words of a source as a testimony you need to ensure the source is willing to testify.

This is also another reason why journalists need to save all court case notes they take (shorthand), sound tapes and visual tapes.  

There is no need to also prove that the statement was in the public interest with this defence. 

Fair comment: 

This is a defence that protects honestly held comments or opinions based on fact. 

Fair comment, sometimes referred to as the critics defence, defends fair criticism. 

To prove the defence of fair comment the accused statement must:


  • be a matter of public interest 
  • be recognisable as comment 
  • based upon facts that are true or privileged
  • must be fair as judged objectively 
  • the person making the statement must not be motivated by malice 
Th defendents must prove the statement is one that a reasonable person could hold, even if they are motivated by dislike or hatred. 

Honestly held opinion: Only publish an honestly held belief based on fact.

Opinion: Defamation claims usually cannot be proven as an opinion cannot be proven true or false.  

Article 10 of the Human Rights Act 1998 states 'everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority'. 


Restrictions on this right have to be justified, in the interest of national security, territorial integrity, public safety, the prevention of disorder or a crime, protection of health, morals, the reputation and rights of others.  

This defence needs to prove public interest relating to the statement in question. 

(Malice in Law: any legal act that is committed intentionally without Just Cause or excuse. Malice is holding a dishonest or improper motive, spite or ill-will.)

Privilege:

In certain situations the law will protect free speech above a persons reputation. 

Absolute Privilege: Defaming statements made in Parliament, court, under oath or other protected occasions are protected against defamation law. 

Qualified Privilege: The defendant must not act out of malice, but has the defence of privilege if the report is in the public interest to publish. 

Court reporting journalist may print defamatory comments as long as they follow the three rules binding what they write; it must be fast, accurate and fair.  

Example:  Lawyers have absolute privilege because they can defame people as they are trying to persuade a Judge or Jury that a person is innocent or guilty. As a trial continues a lawyer will say massively defamatory things to make their point.
Journalists have qualified privilege, this means that they have privilege but it is bound by rules. 

Live broadcast: 

This defence applies to live broadcasts and publications on the internet. 

You must to be able to prove that you have taken all precautions to avoid a defamatory comment/s being made, and that you had no reason to believe that a defamatory statement would be made. 

There are three main areas of defamation risk when broadcasting live, guests, a controversial subject matter and unscripted comment. 

Risks during a live broadcast include guests, a controversial subject matter and the possibility of unscripted comment.  

This defence cannot be used when the defamatory comment has been made by people who a broadcaster or website publisher has editorial control over e.g. presenters, reporters etc, but can be used over unruly guests. 

Offer of Amends: 

Under section 2 of the Defamation Act 1996. 

Combinations of correction, apology and/or financial compensation are usually acceptable. This acts as a barrier to litigation in court.  


It provides a defence to a defendants who has made an innocent mistake and does not wish to rely on the defences of justification, fair comment or qualified privileged. 


Leave and Licence 


If a person gives consent for a publication to publish certain statements about them, they are not entitled to sue for libel. 


The evidence of consent must be clear and unequivocal. 

Examples of Libel Cases: 

MP George Galloway won £150,000 in libel damages from the Daily Telegraph over claims he received money from Saddam Hussein's regime in Iraq -2004.

Reality star Kerry Katona received damages after a paper claimed she worked as a prostitute before she was famous. She received a five-figure sum and legal costs from the Sunday Mirror in 2008. 

A five-year-old Irish boy who was wrongly accused of stealing a bag of crisps has won 7,500 Euro's in damages for defamation of character.  
The case was reported in the Irish Times in July 2010. 
The court heard the child was in a local branch of Lidl with his mother in June 2009 when a shop assistant grabbed his arm and made the accusation. His barrister told the court her client had suffered injury to his reputation and had also been caused to suffer distress and inconvenience.