Defamation: cases and commentary

Defamation is the umbrella term for the action of damaging the good reputation of someone. It covers the areas of slander and libel.

It is one of the biggest dangers legally for a journalist and newsrooms globally; defamation can result in hefty fines.

Journalists must understand the risk and talk to the lawyers if there is a threat of libel.

One of the most famous examples of somebody winning a libel case is that of Chris Jefferies.

Eight newspapers classed Jefferies as a ‘peeping tom’ and a ‘freak’ in 2011 after Joanna Yeates’ murder. He was able to sue for libel as the articles covered identification, publication and defamation. Jefferies received public apologies for the allegations published in the media, as well as The Sun’s headline describing and vilifying his character as ‘weird, posh, lewd, creepy’. Jefferies’ character and reputation was damaged with the impression that he was a monster and the press invaded his privacy despite being proven innocent. The papers paid out six figure sums to Jefferies and the Daily Mirror and The Sun paid fines respectively of £50,000 and £18,000 for contempt of court breaches.

The Chris Jefferies case was won on the no win-no fee claim system.

The Defamation Act aims to strike a balance between the individual right to a reputation and the right to freedom of speech, but the press can fight defamation actions.

Gary Lineker has recently been victim of a defamatory story. Lineker was The Sun’s front page story being linked to a tax-avoidance scheme. The football pundit took to Twitter to deny the allegations and to say lawyers were now on the case. The Sun received a legal letter over the story and subsequently took the article down shortly – Mail Online also removed a story following up on The Sun’s article repeating the same allegations.

Publications’ decisions to remove articles depend on the risk of libel action and how high profile the subject of the story is. Making amends shortly after publication may be mitigation for other publications of the allegations.

Plebgate case: Mitchell turned down libel settlement two months before he lost the case. Update: PC has accepted £80,000 settlement from Andrew Mitchell

When does a routine story become defamatory and libel?

Material published is defamatory if it tends to lower them in the minds of righting thinking people, causes them to be shunned or avoided, disparages them in their business trade or profession and/or expose them to hatred ridicule or contempt.

Journalists must be aware of innuendo – the hidden meaning may be clear to an audience member with specialist knowledge. Innuendo libel carries a low threshold in that if it tends to cause harm to a reputation. Libel is a civil tort so cases are decided upon the balance of probabilities.

In the amendment of the Defamation Act 2013, a statement is only defamatory if its publication has caused serious harm to the reputation of the claimant. This change was enforced to prevent journalists facing unfair legal threats by raising the threshold for action and was a victory for free speech. The claimant cannot sue if the statement is the truth, if the content is a matter of public interest and, if it is honest opinion. Any defences that you hold will automatically be weakened if you are showing malice. A single publication rule prevents repeated claims against a publisher about the same material.

The McLibel case is the longest running case in English history with the original case lasting for 10 years. McDonald’s took on environmental activists Steel and Morris over leaflets critical of the food chain. This case became a symbol of David and Goliath measures, under new rules the claimant must show that the opponent caused serious harm. For example: if it was only 50 leaflets it would not cause serious harm.

Reading Football Club was victim of a defamatory article last year involving Reading Chronicle. The local paper made links to Hillsborough and football hooliganism suggesting thuggish behaviour from Reading fans. One paragraph read: “Football hooliganism may be thought of as a relic from a previous age when gangs of denim-clad skinheads held the game to ransom and names like Hillsborough and Heysel were symbols of its ills.” The story was illustrated with a mock-up of a Reading FC fan brandishing a weapon. The Chronicle’s editor was suspended and Chairman of Reading Football Club suspended the club’s relationship with the paper.

Defamation via pictures is an extremely common danger in broadcast journalism in terms of juxtaposition libel. VJs have to make sure they are not careless with their background shots and GVs when writing scripts. Presenters are there to stop this and make it clear that we are moving onto the next story.

You will have no defence if you have…

Not checked facts

Not referred up

Not put yourself in the shoes of the person

And tried to sex up the story

In 2012, Lord McAlpine was central to a libel case. Newsnight broadcast a report wrongly implying that McAlpine was involved in child sex abuse. The programme issued a formal apology over the incident. Although Lord McAlpine was not explicitly named, Sally Bercow tweeted: ‘Why is Lord McAlpine trending. *innocent face*.’ This tweet was ruled as libellous by the High Court. It is a clear case of jigsaw identification, another legal danger, where the anonymity of an individual is identifiable because of a combination of details published.

 

 

Defamation: definitions and defences

Defamatory statements are those published or spoken which affect the reputation of a person, a company or an organisation.

Defamatory statements written or in any other permanent form are libel but spoken it is slander. But defamatory statements spoken in a broadcast on radio or television are classed as libel by the Broadcasting Act 1990.

The Defamation Act 2013 abolished the presumption of jury trial, so cases will be heard by a judge alone unless the court orders otherwise.

Defamation laws try to strike a balance between the individual right to a reputation and the right to freedom of speech, but media organisations can fight defamation actions providing they have a grounded defence.

A statement is defamatory if it tends to do any of the following:

• Expose the person to hatred, ridicule or contempt
• Cause the person to be shunned or avoided
• Lower the person in the estimation of right-thinking members of society generally
• Disparage the person in his/her business, trade, office or profession

The claimant does not have to show that the words actually did them harm but he/she must show that the statement caused or is likely to cause serious harm.

Juxtaposition is a constant danger for journalists.

An inference is a statement with a secondary meaning which can be understood by someone without special knowledge who ‘reads between the lines in the light of his general knowledge and experience of worldly affairs’.

An innuendo is a statement which may seem harmless to some people but which will be seen as defamatory by people with special knowledge.

A journalist would be mistaken to think that inference or innuendo is any safer than making a direct allegation.

Media organisations may be reluctant to fight defamation actions because of the uncertainty of how a judge will interpret meanings, the difficulty of proving the truth and the huge damages that could be awarded.

Defamation + identification + publication = libel

The claimant does not have to prove that the statement is false or that there was the intention.

The main defences:

• Truth
• Honest opinion
• Privilege
• Accord and satisfaction
• Offer of amends

The standard of proof for a civil case is on the balance of probabilities.

A media organisation’s case is often weakened because a journalist has failed to keep notes or recordings and research in good order to prove what someone said.

Requirements of honest opinion (all of these must be met):

• The published comment must be the honestly held opinion of the person making it
• It must be recognisable as comment
• It must be based on a provably true fact or privileged material
• It must indicate the fact or information on which it is based

Privilege provides journalists with a defence and justification to report defamatory statements that may be untrue.

Absolute privilege is a complete answer and bar to any action for defamation – it can be enjoyed by journalists when they are reporting court cases or the proceedings of certain types of tribunals. Reports must be fair, accurate and contemporaneous to have this defence. Privilege does not protect defamatory comments made from the public gallery from people who are not part of the proceedings.

For absolute privilege, the publisher’s motive is irrelevant but a qualified privilege defence will fail if the claimant can show malice.

Qualified privilege defends media reports of: press conferences, Parliamentary debates, public meetings and council meetings. Reports must be fair, accurate and without malice but also published in the public interest. Public interest means the public must benefit from this matter of concern and that it is without spite towards the claimant. Public interest is also known as the Reynolds defence.

Reports may attract qualified privilege with explanation and contradiction when reporting on public meetings, police statements and council meetings. Reports may attract qualified privilege without explanation and contradiction when reporting on legislature anywhere in the world.

With journalism’s online presence growing, there is a new defence for operators of websites, who will be protected if they have proof that it was not the operator who posted the statement on the website.

Accord and satisfaction = apologies and corrections