Personal commentary on the analysis of defamation and libel:
As a journalist it is important to identify three key dangers: when routine stories become defamatory, the traps you need to look out for, and the questions you need to ask yourself about a story.
The main focus of this week’s blog is how to avoid career-crippling hazards, a.k.a. defamation and the threat of libel action. Not only can committing a major libel end your career (or at the very least severely damage your reputation), settling a libel action can be very costly. Knowing what you need to prove about a story in advance will save you a lot of hassle and make you a better journalist.
A key piece of information to be aware of is the new law in this area: the Defamation Act 2013 which amends the old law (generally to the benefit of writers and journalists – which is great news for us!) In the past, many journalists believed that defamation law, in attempting to ‘strike a balance‘ between protecting reputation and allowing freedom of speech, was tilted in favour of claimants. But developments in recent years,such as the Defamation Act 2013, seem to have tilted the balance in favour of freedom of expression.
The new Defamation Act has raised the bar for potential litigants by demanding that claimants must now show that they have suffered (or could suffer) ‘serious harm’ to their reputation for a case to proceed (or in the case of a company – ‘substantial financial loss‘). In the past ‘harm’ was a matter for a libel jury and need not have been ‘serious’. The necessity to prove ‘serious‘ harm or loss has now been given statutory expression in the requirement in Section 1 of the Defamation Act 2013.
The Human Rights Act 2000 requires courts to pay regard to Article 10 of the European Convention on Human Rights, concerned with freedom of expression.
Now let’s take a look at the decision of the House of Lords in the Reynolds Vs. Times Newspapers (2001) case which famously extended the boundaries of the defence of privilege. The case provided the Reynolds defence, which has now been abolished and replaced in statutory form in Section 4 of the Defamation Act 2013, which introduces a defence of ‘publication on a matter of public interest‘.
In this case The House of Lords recognised for the first time that media publications can be protected by privilege providing they satisfy a test of public right to know and responsible journalism. Lord Nicholls set out ten non-exhaustive factors which would be considered when determining whether there was a duty-interest for media publications to the world at large. The subsequent case of Jameel Vs. Wall Street Journal Europe (2006) affirmed the defence, which was subsequently raised successfully in several defamation proceedings.
These are all great examples of evolving legislature and the ripple effect a single case can have on our law system.
Other reforms aiding freedom of expression include: the introduction of qualified privilege for peer-reviewed publications in scientific and academic journals, the widening of qualified privilege in relation to courts and press conferences and the liberalising of the honest opinion defence, formerly known as ‘fair comment‘.
McAlpine Vs. Bercow (2013) was a landmark legal case between Conservative peer Lord McAlpine and Sally Bercow, the wife of John Bercow, Speaker of the House of Commons. Lord McAlpine alleged that he was defamed by comments implying that he was a paedophile published by Sally Bercow on Twitter. This followed the broadcast on the 2nd November 2012 of a report by BBC Two’s Newsnight which falsely linked an unnamed “senior Conservative” politician to sex abuse claims. On 4 November 2012, Bercow tweeted “Why is Lord McAlpine trending? *innocent face* When the allegations against McAlpine proved to be unfounded, the BBC subsequently apologised and paid £185,000 to McAlpine in damages. McAlpine donated the libel damages to Children in Need and other charities.
This case highlights two important points for journalists: the implications of inference and the costly consequences of libel action.
In the News:
In the news today (4th February 2015), it has been revealed that the Guardian has had to pay damages to former News of the World news editor, James Weatherup, over an extract from Nick Davies’s book Hack Attack. Weatherup is said to have received a four-figure sum from the newspaper and is also said to be pursuing publisher Random House. Weatherup took issue with allegations in the book that he ‘bullied staff, behaved inappropriately and wore tight-fitting tennis shorts to work’.
This case demonstrates well the importance not to assume that libel applies only to articles and that it in fact stretches across all forms of publishing, including books.
To round up:
Recognising risk is key: Is what I’m writing potentially defamatory? Who am I writing about, and could they sue? Do I have a defence? Always consult a lawyer.
Law Notes: Defamation
Definitions and dangers:
Defamation is a defamatory statement made in permanent form. It is generally libel and if in transient form it is generally slander if it cannot be defended. In a defamation action, the test of what words actually mean is the test of what a reasonable person would take them to mean. Words may carry innuendo, a ‘hidden’ meaning clear to people with special knowledge or create an inference, obvious to everybody. The financial implications of losing a defamation action in terms of damages and costs are so punitive that journalists must always consider whether what they are writing to plan to broadcast will be defensible if a defamation action results. Libel is a civil wrong resulting from a defamatory statement. In TV journalists need to be careful of careless use of ‘wallpaper’ shots which can result in picture libel.
A defamatory comment is a statement which a reasonable man or woman may think ‘tends’ to:
- Lower someone in the estimation of right-thinking members of the public.
- Causes someone to be shunned or avoided.
- Disparages someone in their business, trade, office, or profession.
- Exposes someone to hatred, ridicule or contempt.
PUBLICATION + DEFAMATION + IDENTIFICATION = LIBEL
Why media organisations may be reluctant to fight defamation actions:
- Uncertainty of how a judge will interpret meanings.
- Difficulty of proving the truth.
- Huge damages could be awarded if trial lost.
- Huge costs.
- It may be better to settle.
- ‘No win, no fee’ legal representation.
The Court of Appeal has the power to substitute its own figure for a jury award it considers to be excessive or inadequate.
Under law as amended by 2013 Act the defences are listed as follows:
- Serious harm: A new requirement for claimants to prove serious harm at the outset is effectively a bar against trivial claims. Without serious harm – there can be no defamation under the new Act. So the first line of defence is to show the harm done is insufficient. In the case of corporates, the test is whether “serious financial loss” has occurred or could occur.
- Truth: This is the old ‘it’s true and I can prove it’ defence, previously known as justification. The imputation/allegation need only be “substantially true”.
- Honest Opinion: Previously known as ‘fair comment’ – wording is simpler than before. The statement must be clearly an honestly-held opinion based upon a fact or facts which existed at the time of the statement. It no longer has to be on a matter of public interest. But as before (by definition) there must be no malice.
- Publication on matter of public interest: This new section enshrines principles behind previous judgements. If material is published because it is “reasonably believed” to be in the public interest i.e of value for the public to know.
- Website defence: If a statement is published on a website, the operator avoids action for libel if he can show that it was not the operator who was directly responsible. But the operator must comply with certain safeguards and the defence fails if, for example, the operator cannot identify who posted the statement, or the operator fails to respond to a notice of complaint.
- Peer reviewed journals: Now carry protection of privilege, meaning that academic researchers and writers cannot be sued and their assertions can be re-published.
- Absolute Privilege: Court reports – as long as they are fair, accurate and contemporaneous. And extended to international courts.
- Qualified Privilege: Again where the law considers facts should be available in the public interest. Eg: Council meetings, public meetings, police statements, press conferences. Reports must be fair, accurate and without malice.Now extended (see provisions) to bodies such as international conferences, and official company documents.
- Presumption against jury trials: This is likely to reduce costs, and remove some of the ‘lottery’ element associated with libel trials.
- Single publication rule: Limitation of one year to bring an action from first publication i.e each click on a webpage does not reset the limitation clock.
- Accord and Satisfaction: Publication of an agreed apology – newspapers carry these frequently. Broadcasters too – often in same slot as original. Hasty apologies may be made to mitigate damages – BBC.
- Bane and antidote – you may get away with defamatory part of an article if the whole context changes the meaning.
- Offer of Amends: Typically an agreed settlement combining an apology and payment of damages.