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
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