Defamation - NCTJ Essential Media Law

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Defining Defamation

A statement is defamatory if it tends to do one of these things:

·         Expose a person to hatred, ridicule or contempt

·         Cause them to be shunned or avoided

·         Lower them in the eyes of right-thinking people generally

·         Disparage them in their business, office, trade or profession

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Inference and Innuendo

Inference - When a right-thinking person generally will understand a remark as disparaging using their general knowledge of the world.

Innuendo - When an apparently harmless statement can be understood as defamatory by someone with special knowledge (i.e. in the same profession).

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Proving defamation

The person suing for libel must prove three things:

·         That the publication is defamatory

·         That is must reasonably be understood to refer to him/her – “identification”

·         That it was published to a third party

 

They do NOT have to prove that the statement was false, nor that the person who made the statement intended it to be defamatory, nor that he suffered any actual damage. 

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"Serious Harm"

Defamation Act 2013 says that a claimant must prove that an allegedly libellous act caused (or is likely to cause) "serious harm" to their reputation. 

What determines "serious harm" is not prescribed, but allegations of lying, hypocrisy, corruption or other criminality, exploitation of workers or consumers and infidelity/adultery are very likely to meet the threshold.

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Repetition and the single publication rule

Traditionally, any repetition of an allegedly libellous remark is seen as a fresh libel and can be sued separately. 

Libel can be brought forward up to 12 month after publication generally.

However, the 2013 has brought in the "single publication rule" which determines that the period for a defamation proceeding being lodged is when the first publication of that material is done, even if substantially the same is subsequently published. 

Yet, this only applies if the content of the following articles were materially similar, if it was substantially different then it is possible a fresh libel period could begin. Also, as already stated if a different organisation publishes materially the same libellous allegations the period a libel can be brought forward is from the date of publication of that different organisation.

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Identification

A news publication can still be sued for libel if a person or group of individuals can be easily recognised from their reports, even if they do not name them.

In a 1940 case Newstead v London Express Newspapers, the Daily Express was successfully sued for saying that "Harold Newstead, a 30 year old Camberwell man" had been convicted of bigamy, as there were two Harold Newstead from Camberwell and hence the innocent Harold Newstead claimed it was defamatory. 

Blurring an identity does not necessarily work as it can mean that you unwittingly identify further innocent individuals and are at risk of committing group libel.

In a 1986 case, members of Banbury CID sued News Group Newspapers for stating that detectives from the force had ***** a woman. This was because there were only 12 detectives meaning they were easily identifiable. 

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Defences to Libel

The Truth Defence

News organisation must prove that the allegedly defamatory statement is in fact true, meaning this defence only applies to statement of fact not opinion. 

The burden of proof is on the news organisation, who must compile evidence, signed statements, video/audio footage, documents and witnesses willing and able to testify the truth of the matter. 

Such a defence is difficult to run and expensive to lose so many opt for an out-of-court settlement to put an end to the matter.

Honest Opinion

News organisation can defend themselves if the defamatory remark is clearly identifiable as opinion. Criteria include:

  • Person's own honestly held opinion in good faith
  • Based on provably true facts
  • Recognisable as opinion.
  • Indicate generally or specifically the basis of that opinion
  • It must be that an honest person could hold that opinion

There can be no malice involved in the opinion, and you could lose the defence if it was merely a pretence and not an honestly held opinion.

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Absolute and Qualified Privilege

Absolute

Complete bar to a defamation action. 

Examples:

  • MPs in House of Commons, peers in House of Lords and members of the Welsh assembly. Members lose this privilege the minute they are repeated outside the house. Journalists only have QP of such proceedings.
  • Court reports have AP for journalists. Reports must be fair, accurate and contemporaneous.

In CTB v News Group Newspapers in 2011, a footballer who cheated on his wife had his identity withheld through an injunction, but MP John Hemming used his parliamentary privilege to expose him that year. 

Qualified

Applies to a large number of matters considered to be in the public interest. This protection against defamation is the same as AP but motive is involved, there must be no malice involved in publication.

To get QP reports must be:

  • Fair
  • Accurate
  • Without malice
  • In the public interest

Examples:

  • Council/committee meetings
  • Tribunals
  • Press conferences

Press conferences were only recently added after the Times reported defamatory comments made about a law firm who represented a soldier convicted of murder. The firm, Turkingtons, had successfully sued for defamation but this was overturned on appeal as the meeting had been open to members of the public and the press had been invited. 

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Other defences

Section 1 Defence - Live Defence

Derives from Section 1 of the Defamation Act 1996 (not the 2013 act) which extended the "innocent dissemination" defence to include broadcasters and website hosts.

It essentially says that if you are not the author or publisher of the defamatory comment, took reasonable care and had no reason to believe a defamatory comment would be made, then you are protected.

Particularly useful for broadcasters (but doesn't include "staff" and presenters should "draw the sting" of the libel by distancing the show from it or ending the interview) and websites where people can comment. However, the defence is dubious if the comments section is pre-moderated, but post-moderated websites are usually okay.

Section 5 Defence

Provides a defence for operators of pre-moderated sites who can prove the defamatory statement was not personally written or posted by them to the site. This defence will fail if the site received notice of the defamatory remark and failed to remove it.

Accord and satisfaction

This means the matter of a defamatory remark has been successfully ended, usually by issuing a correction or apology that includes a signed "waiver" from the affected party saying they accept the apology.

Leave and licence

This means the person agreed to the information being published/broadcast - usually through a signed statement - or video/audio statement - of agreement.

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