Defamation and Libel

ORIGINALLY PUBLISHED ON OCTOBER 20th 2013 on Journalism Now for my Masters.

THESE TIMES THEY ARE A CHANGIN

On shifting sands are journalists working. Resulting from public concern over the phone hacking scandal a new press regulatory system looms large on the horizon. The search for a new print journalism business model continues with differing media publications opting for (The Sun and The Times) or against (The Guardian) online pay walls. The BBC is operating in fiscally difficult times given the politically enforced license fee freeze which lasts until 2016. The proliferation in social media and user generated content further exemplifies the notion of a truly changing media landscape.

Yet one thing remains; the need to ensure legal compliance. Ensuring that one does not libel another person or organisation, whilst fundamentally a moral and ethical test of a journalist’s professionalism, also makes good business sense, given the potential punitive costs of such an action.

Social media users’ lack of understanding of its legal positioning has led to some interesting cases. These cases are intriguing as the law has had to consequentially react to media happenings brought about by technological advances which have fuelled the contemporary ways in which we interact. Behind a cloak of perceived anonymity and in a ravenous pack some hunt. The relatively new notion of jigsaw identification in relation to libel has been most recently exemplified by the Lord McAlpine case which is detailed on http://www.bbc.co.uk/news/magazine-20782257 The legal precedent relevant to Lord McAlpnie’s case is highlighted on http://www.pressgazette.co.uk/content/lord-mcalpine-cases-underlines-libel-dangers-journalists-jigsaw-identification-online-age

Thus, The Defamation Act 2013 received Royal Assent on 25 April 2013. The Act simplifies libel law whilst clarifying and reinforcing libel defences. It modernises the law as it covers web publishing.

The aim of the Bill (http://services.parliament.uk/bills/2012-13/defamation.html) is to reform the law of defamation to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation. The Bill makes a number of substantive changes to the law of defamation, but is not designed to codify the law into a single statute.

Key areas

includes a requirement for claimants to show that they have suffered serious harm before suing for defamation
removes the current presumption in favour of a jury trial
introduces a defence of “responsible publication on matters of public interest”
provides increased protection to operators of websites that host user-generated content, providing they comply with the procedure to enable the complainant to resolve disputes directly with the author of the material concerned
introduces new statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment.
The law has widely been praised as in the industry’s interests. The Index on Censorship http://www.indexoncensorship.org/ said:

“The new law protects free speech. There is a hurdle to stop vexatious cases. We now have a bar on libel tourism so non-EU claimants will now need to prove that harm has been done here. For the first time there will be a statutory public interest defence that will ask defendants to prove they have acted “reasonably” (a better test than the more burdensome Reynold’s test of responsible publication). There is also a hurdle to stop corporations from suing unless they can prove financial harm”.

Then Justice Secretary Ken Clark’s comments below on the Act’s publication alluded to the legal complexity of defamation given its place within the vacillating grey land between freedom of expression and the right to privacy. What one person considers to be in the publics’ interest, another may not, especially if it is in that person’s interests to keep such a fact private. Topically, given Leveson, the zeitgeist can also be influential in determining what a journalist may have published.

“Freedom of speech is essential in a democratic society.” said Ken Clark.

He continued, “The Defamation Bill will rebalance the law to ensure those who have genuinely been defamed can still take action and seek redress, but without the threat of such action unjustifiably hindering freedom of expression.

“The current system is complex, unwieldy and expensive. These reforms will provide clarity, ease the threat of long and costly libel proceedings and make it easier for trivial cases to be dismissed without undermining individuals’ ability to protect their reputation.”

However, certain delays may result in upcoming cases being heard in accordance with current law.

LIBEL AND TV

Whilst pre-recorded TV programmes afford producers the opportunity to edit out any libellous comments there exists a need to mitigate the chances of being sued for libel when live by e.g. introducing a 7 second delay. For an example of the reputational damage caused by libellous television comments see http://www.dailystar.co.uk/news/latest-news/144886/TV-psychic-sued-after-branding-dad-a-criminal

Sir Alan Sugar’s comments on Daily Mail editor Paul Dacre on C4 News on 2nd October 2013:

“He is a dog. A dog of the highest order.” http://www.channel4.com/news/alan-sugar-daily-mail-ed-ralph-miliband-paul-dacre-video

This was a pre-recorded item, yet what appears to be a defamatory comment was left in the programme. It is worth considering why this decision was taken. Was it because there existed a defence such as honest comment? The history between the two parties probably played a part in formulating Sir Alan Sugar’s opinions – see http://news.bbc.co.uk/1/hi/uk/1173874.stm

Peter Oborne’s comments 37 minutes into Question Time accusing the police officers involved in Plebgate (http://www.bbc.co.uk/news/uk-england-24583765 ) of ‘lying’ are interesting for the disclaiming reaction they prompt from David Dimbleby http://www.bbc.co.uk/iplayer/episode/b03dy8wl/Question_Time_17_10_2013/

In accordance with the statute of limitations, an individual or organisation who considers themselves wronged has up to a year, post publication, to act upon the article considered libellous. In Scotland this is three years.

WHAT IS DEFAMATION?

A statement is defamatory if what you write or broadcast about someone or a company TENDS TO:

Lower them in the estimation of right-thinking members of society generally
Causes them to be shunned or avoided
Disparages them in their business, trade, office or profession
Exposes them to hatred, ridicule or contempt
A defamatory statement in written or in any other permanent form is a libel, for which damages can be awarded. A transient defamatory statement such as that spoken is known as slander, which is also a tort or civil wrong.

In 1998 Tom Cruise and Nicole Kidman won a libel case against Express Newspapers. The following article alludes to the reputational and professional damage potentially caused by the allegations in question http://news.bbc.co.uk/1/hi/entertainment/203779.stm

The lengthy McLibel case is relevant to this discussion as it centred on the reputational damaged felt by McDonald’s. The new Defamation Act would require such a corporate entity, before bringing action, to show that the serious harm they had suffered was serious financial loss. The current legal aid cuts make this case extra relevant. See http://news.bbc.co.uk/1/hi/uk/4266209.stm and http://www.ethicalcorp.com/communications-reporting/mclibel-reputation-damage-writ-large

DEFAMATION VIA PICTURES

The Channel 4 producer’s handbook states that ‘It is possible to defame a person or a company accidentally. For example, the juxtaposition of someone’s picture with spoken words or commentary may accidentally libel that person. Intention is irrelevant’.

This type of defamation is a common TV danger. For example the careless use of background shots/general views of a football crowd with a voiceover regarding hooliganism could imply that an identifiable individual is a hooligan.

REPUTATION AND MEANING

For most people and especially those in public life reputation is vital. The recent Kevin Petersen libel case highlights the damage that libellous comments can have upon one’s professional career and thus earning ability http://www.bbc.co.uk/sport/0/cricket/24443831

Racist claims which could have seriously damaged Frankie Boyle reputation resulted in a libel case success and the awarding of over £50,000 in damages; http://www.theguardian.com/media/2012/oct/22/frankie-boyle-libel-damages-daily-mirror

The intended meaning is crucial in determining if comment/s is libellous. Importantly, the legal test of what words mean is what a ‘reasonable person’ would think they mean rather than what the author or publisher considers them to mean. Some concepts of relevance:

Innuendo – a seemingly innocuous statement that is in fact defamatory to those with specialist knowledge. The statement nods to something else which must be known by the reader/viewer/listener.

Inference – a statement with a secondary meaning, understandable to the layman

Bane and antidote – whilst a statement in isolation (say a headline) may be considered defamatory it would not necessarily be possible to seek redress for such perceived libel if when assessed within the whole context (by reading the full article) it is clearly not defamatory.

The following article discusses the concept of libel tourism in which individual’s with an apparent lack of ties to the UK (and thus, crucially, an established UK reputation) attempt to bring about costly libel proceedings http://www.independent.co.uk/news/uk/home-news/the-verdict-that-finally-goes-against-libel-tourism-fatal-blow-for-individuals-with-little-or-no-link-to-uk-trying-to-bring-claims-8879858.html Further legal details are on http://www.legislation.gov.uk/ukpga/2013/26/section/9/enacted

LIBEL DEFENCES

Truth (previously justification) “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement of is substantially true” See Jonathan Aitken files http://www.theguardian.com/aitken
Honest opinion ‘was fair comment’ – must show it is an opinion which could be held by an honest person based upon a known fact at the time of writing.
Public interest – the statement complained of was, or formed part of, a statement on a matter of public interest; and the defendant reasonably believed that publishing the statement complained of was in the public interest.
Absolute privilege – this applies in court proceedings and some tribunals. It refers to the complete right to freedom of speech in the name of public interest without fear of the initiation of defamation proceedings. It matters not if the comments in question were actually true or if they were spoken with malicious intent. Reports emanating form such environments must though be fair, accurate and contemporaneous i.e. published as soon as practicable.
Qualified privilege – this applies to, for example, debates in public, press conferences and council meetings. The material published must be fair, accurate, devoid of malice and published in the public interest.

NO DEFENCE WHEN:

you have not checked your facts
you have not referred up to a more senior colleague
you have got carried away by a spicy story
you have failed to put yourself in the shoes of the person or company you are writing about
you have failed to wait for your lawyer’s opinion

RECOGNISE RISK

As a journalist, when attempting to recognise risk you should consider various questions.

Who am I writing about? Can they sue? Am I writing something possibly defamatory? What would the person or organisation about whom I am writing think about my words?

Further reading:

http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted The Defamation Act 2013

http://www.independent.co.uk/news/uk/crime/twitter-libel-sally-bercow-says-she-has-learned-the-hard-way-as-she-settles-with-tory-peer-lord-mcalpine-over-libellous-tweet-8630653.html Sally Bercow’s reaction to libel case loss

http://www.theguardian.com/law/libel-reform Libel reform

http://www.theguardian.com/media/2010/oct/19/bbc-licence-fee-frozen License fee freeze

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