Defamation revision

 “Defamation is one of the greatest legal dangers for anyone who earns a living with words and images…” (McNae’s Essential Law for Journalists)

McNae’s golden rule: “…if publication seems likely to bring a threat of defamation, [a journalist] should take professional advice”.

In other words, ask, “Will this upset someone? Might they sue?” If the answer is yes, then ask whether you can defend your story. Truth is a defence: if it’s true and you can prove it, you should be safe. So the question is, how can you prove it? 

Remember the mantra used in many newsrooms:

If in doubt, leave it out. 

Often, the advice from an editor will decide that including a particular detail is not completely safe: the readers will never know. The counter argument is that this might involve suppressing information that the public deserve to know, which might be unfair to one of the parties in a story.

For the first-year law test, you are advised to memorise, word-for-word if you can, text in burgundy

For the first-year law test, you need not learn (or even read) text in pale grey

A defamatory statement is one that harms the reputation of a person, company or organisation.

It is a libel if it is written, broadcast or spoken in a public performance; or in some permanent form.

It is slander if it is spoken. But if it is broadcast, it is libel.

A statement defames someone if it tends to:

• expose them to hatred, ridicule or contempt
• cause them to be shunned or avoided
• lower them in the estimation of “right-thinking” members of society generally
• disparage them in their business, trade, office or profession

It is almost always defamatory to say someone is a liar, a cheat, insolvent or in financial difficulty – but the publisher has a defence if it is true.

What matters is whether a “reasonable person” would find a statement defamatory, regardless of what the writer actually meant. “The intention of the publisher is irrelevant” said one judge.

The most common causes of libel actions are inaccuracy and unfairness. Journalists must make every effort to get their story right, and be able to prove their facts.

Defamation is a civil wrong, not a crime. That means the penalty is an order to pay damages, not a fine.

The 2013 Defamation Act abolished the presumption that cases would be tried by juries. Now they will be heard by a judge, unless the court orders otherwise.

What causes defamation actions?

Many libel cases arise from journalists getting their facts wrong, or not being able to prove their facts. Note that accuracy is also a requirement of the Editors’ Code, which governs media ethics.

Often, defamation claims arise from careless mistakes – as in the case of the ageing bandmaster who died while hitting a high note with a young lady in his band. The media law trainer David Banks tells the story on his blog. 

Juxtaposition is a risk: running a story next to an unrelated picture that puts an unintended meaning in the mind of the reader, say. A police officer happened to appear in shot in a documentary as he left a police station; this would have been fine, had the script at that point not been talking about corrupt police officers. He won damages.

Some statements might seem innocent to some, but appear defamatory to others through inference or innuendo. For instance, a former cabinet minister sued over a report that he “would snort at suggestions that he was born with a silver spoon around his neck” – implying he took drugs.

Standards change. It is no longer defamatory to say someone is gay – in most circumstances. It might be defamatory to imply they lied about it.

2015 update: saying someone is gay may be a breach of their right to respect for privacy – and a breach of the Editor’s Code. Read more

Defamation cases can be extremely costly

Media organisations may be reluctant to fight a libel case because of uncertainty about what the judge might rule, the difficulty of proving the facts, or unwilling witnesses; and above all, because of the risk of very high damages and costs. Editors may choose to apologise and settle even when they believe their story to be true. LM magazine was shut down by a £375,000 libel award.

The Court of Appeal can alter libel awards – up or down.

In 2012 a judge said the upper limit should be around £275,000. Costs are often higher than the damages award.

Most cases are settled out of court. Pay-outs are rarely disclosed.

Apologies

Publishing an apology and correction can “remove the heat” from a complaint and reduce the size of a pay-out if a claim is brought; but it can also be seen as an admission that the complainant has a case. In other words, an editor might hope to pacify the victim by apologising and trying to put things right; but if you apologise, you appear to admit you got things wrong and make it easier for someone to sue you. Another danger is that a badly drafted apology will actually make things worse by repeating the original libel, or even libeling another person (such as the original source of your story) and ending up being sued by them as well. Since this briefing was first published, that has actually happened: 

The Telegraph Media Group published an “abject” apology in January 2019 for a lengthy article on Melania Trump, the ex-model wife of the US President. It must have been excruciatingly embarrassing for the editors. But worse was to come: the writer of the article issued a writ for libel, claiming the publisher – without consulting her – had apologised for statements she had not made, and turned her into “a poster girl for fake news”. The writer’s lawyers said the apology misquoted her article, which they said was fact-checked and well-sourced. Read the writ here. 

(January 2020 update: this case appears not to have progressed beyond the issuing of the writ). 

Because of the pitfalls, inexperienced journalists should not negotiate apologies.

What the libel claimant must prove

The key words are defamation, identification, publication.

• defamation: a report is likely to cause serious harm to reputation
• identification: it “may reasonably be understood” to refer to them
• it has been published to a third party

Further, a company must now show it has caused, or is likely to cause, serious financial loss. This means producing documentary evidence.

A claimant does NOT have to prove a story is false. For a defence of truth, a publisher must prove it is true.

Identification

A person can be defamed even if they are not named.

They might be defamed even if they are not the person the writer was referring to, if the real subject was not named. If people mistakenly believed it could refer to an entirely different person, that person could sue.

It is enough that some people, who know the claimant, believe he is the person referred to – even if the wider public would not be able to identify them.

A judge said: “… it is sufficient if those who know the claimant can make out that he is the person meant.”

In 33 months, the Police Federation brought 95 libel actions on behalf of officers who had not been named, claiming acquaintances or colleagues would identify them. It won all 95 cases.

Head teachers have had to be paid damages personally for reports criticising their schools, even if they were not named and blamed: the blame is inferred.

People can be libeled if they are seen in a picture but not named – for instance, if a stock or “library” picture of people drinking socially talks about alcoholism (especially if a person photographed is teetotal).

Court cases are a particular hazard if an innocent person has the same name as the defendant. Ideally, a report should include identifying details such as age, address and occupation. But beware of court orders that restrict what can be reported about defendants.

Partial identification can be a hazard. A newspaper quoted a report that criticised a council’s deputy housing manager, but did not name him; the person criticised had left the job and the new deputy housing manager successfully sued, because it appeared the criticism related to him.

If an unnamed member of a group is defamed, all members of that group might sue – within limits – because each might be thought to be the person referred to.  A report alleged that unnamed detectives had raped a woman: all 12 male detectives in the town successfully sued.

What is meant by ‘published’?

There is no defamation in something that is said only to the person it refers to.

But technically, it only needs to be communicated to one other person to be defamation.

An exception is foreign websites seen by few people in England (for a case brought in England). A Saudi businessman’s case failed because the material he complained about was seen by only five people – two of them were unknown, and the other three were his own lawyers.

Who can be sued?

A victim of a defamation can potentially sue everyone who helped publish it: the reporter, the sub-editor, the editor, the printer, the distributor, the broadcaster.

Anyone repeating a libel can be sued for “fresh publication”. So reporting on a complaint, or lifting copy from another publication without checking it, carries a hazard. It’s a common cause of libel claims. This can even be a risk when using archive or “library” material.

Libellous stories in newspapers must also be removed from the internet, or a claimant could sue again.

Key defences 

• Truth: it is substantially true and I can prove it – a complete defence
• Honest opinion: the defendant does not have to show the words were fair, but must show they were an honestly-held opinion (key point: it must be made clear the article/story is an opinion piece or review; and the journalist must state the facts on which the opinion is based, so readers/viewers can judge for themselves)
• Accord and satisfaction: an apology was published and accepted
• Offer of amends
• Leave and licence: the person defamed agreed to publication
• Innocent dissemination: covers newspaper distributors, and things said in live broadcasts – if all precautions have been taken
• The claimant dies (a dead person cannot be libelled)
• Absolute privilege: applies to reports of court cases
• Qualified privilege: covers reports of public meetings,  proceedings in Parliament, and council meetings, including the agendas and minutes

There is also a new defence of public interest: that information in a story may be defamatory, and even turns out to be wrong, but there was a strong case that it should be made public – perhaps because it is about an important public figure in a position of trust. The publisher must believe it is true and have taken all steps to check.

The defences in detail

Privilege is a complex area and is dealt with in the next section. For the first-year law test it is only necessary to understand that:

Absolute privilege means a publication cannot be sued for defamation for a report of a court case if it is fair, accurate and contemporaneous 

Qualified privilege offers protection against being sued, but with certain conditions: for instance, a requirement to correct false information or allow an aggrieved person to respond. A story must be in the public interest. 

Truth

If the publisher can prove a statement is substantially true, it is a complete defence. Proving truth is not as demanding in civil courts: it must be proved true only “on the balance of probabilities”, whereas in criminal cases, the charge must be proved “beyond reasonable doubt”. For examples, see page 258 of McNae’s 22nd edition.

Investigative journalists should make sure they can prove their facts: for instance, by recording interviews, basing information on documents such as official reports or the result of a Freedom of Information request, taking signed statements from people they interview, or getting them to sign affidavits. Notebooks MUST be kept.

Honest opinion

This covers opinion, but not something written as though it were fact (“X is a liar”).

Four tests must all be met for the defence to succeed:

• it must be the honestly held opinion of the person making the comment (if, say, a magazine has quoted them)
• it must be clear it is opinion, not presented as fact
• it must be based on a provably true fact, or privileged material
• the factual basis must be included in the article or report

Honest opinion does not have to be fair in a libel defence. It must be a view that an honest person could hold in response to a fact – even if they are a bit of a crank. This defends the right of free speech.

Car reviews, etc, are protected by the honest opinion defence. But there must be a factual basis for the opinion, and this must be stated.

A journalist can defame a firm by disparaging its goods, but simply criticising their quality is not enough to justify a claim. The report must impute discreditable conduct, or say the firm is not competent.

So a motoring writer could safely criticise a car (if the reasons are fair), as long as they do not reflect on the character of the dealer or maker.

The main problems in this area arise from alleging dishonesty, carelessness or incompetence.

Accord and satisfaction

This can stop a defamation case – when a correction and apology have been published and the complainant has accepted them.

If the apology and correction have not been agreed by the claimant, they are not a reliable defence.

An apology can be hazardous if it:

• amounts of an admission of defamation
• repeats the defamation, or even
• libels someone else

Offer of amends

Sometimes, someone is defamed unintentionally: for instance, when there are two people of the same name.

The publisher can make a written offer to publish an apology and correction and pay suitable damages and costs.

If the offer is rejected and the publisher does not withdraw it, this is a complete defence…

…unless the claimant can show the publisher knew, or had reason to believe, that the statement was false and that it defamed the claimant.

The sooner an offer of amends is made, the lower the damages will be if the complainant successfully sues.

Leave and Licence

This might apply, say, where a celebrity wants to challenge false allegations that have been made against them – such as widely-circulating rumour. To report the celebrity’s response, it would be necessary to tell people what the false allegations were.

This defence is more likely to succeed if consent is in writing.

Innocent dissemination

This traditionally protected, say, people who sold and distributed newspapers, because they could not be expected to know what was in them.

It now applies to things said in live broadcasts and in readers’ online comments as long as reasonable care has been taken to avoid defamation.

If a live contributor to a radio phone-in programme says something defamatory, the radio station will have a defence if it can show it anticipated the risk, warned the contributor not to say anything defamatory, and took them off air as soon as they said it.

The defence also applies to internet service providers that merely provide a publishing platform but have no part in what is published. But ISPs could be sued if they are too slow to take down defamatory material once alerted.

Website publishers – who create and manage their content – have protection when it comes to readers’ comments, over which they have less control.

But again, they must take down anything defamatory once they know about it.

This defence requires them to enable the complainant to take action against against the people who posted the defamatory comments – for instance, by revealing the identity of anonymous posters.

The defence will not apply if comments are moderated by a website’s staff before they are published.

The limitation period

Libel claims must be brought within one year of publication.

For a website, the year starts from the date someone first clicks on the page… not from the date the page was uploaded (so legally, it is only published when someone actually sees it).

Previously, every time someone clicked on a web page, the year started afresh – this is no longer the case.

Bane and antidote is a term that means a defamatory statement can be cancelled out by context: say, if it quickly becomes clear the statement is false. Example: two TV stars failed in a defamation claim over a story about pictures of their heads being imposed on images of porn stars’ naked bodies, because the story quickly said they knew nothing about it.

But if the reader may not see key words tucked down in an article, the defence might fail.

Privilege

Privilege means that journalists can publish defamatory information without fear of being sued for libel – even it the defamatory material turns out to be untrue (as long as it was accurately reported, without malice). This is because without this protection, it would be impossible to cover court cases and government affairs – including local government – accurately and fairly. It is in the public interest for these things to be reported. 

For journalists, Absolute privilege applies only to coverage of court cases. It gives an absolute defence against being sued.

Qualified privilege allows journalists to cover various kinds of public meetings, but with wider duties to be fair and accurate. This might mean correcting false information or a false impression – in other words, a right of reply. 

Absolute privilege

Court cases often involve highly defamatory information, but journalists can report this as long as they meet the requirements of balance and contemporaneous reporting. It is vital that anything contentious is attributed, to make it clear it was part of the hearing.

Journalists enjoy absolute privilege in reporting court cases or certain tribunals, as long as what they publish:

• is fair and accurate
• is published contemporaneously (as soon as practicable), and
• covers judicial proceedings held in public

Obviously, there is likely to be defamatory information about a defendant. This can be published even if they are eventually found not guilty – but their defence must also be published, and the final verdict.

Defamatory information may also emerge about witnesses or third parties – and they may have no opportunity to defend their reputation. It may seem unfair, but this information can be reported with no right of redress for the victim.

Under the 2013 act, absolute privilege now reports of court hearings outside the UK, including tribunals and courts set up by the United Nations Security Council or by international agreement.

Privilege does not apply to hearings held in private.

To be fair, a report must:

• give a summary of cases put by both sides
• contain no substantial inaccuracies
• be balanced: avoid giving disproportionate weight to one side

The report must make it clear that a defendant denies the charges, and if a case is ongoing that no verdict has been reached (“the case continues”).

Newspapers have been sued for reporting the prosecution’s allegations, but not the defence cross examination that undermined the case.

All facts and allegations must be attributed: “said the witness”… “the court heard”… “the prosecution said”.

Even with absolute privilege, there is still a defamation risk over identification: if someone else could be mistaken for the defendant. Reduce this risk by publishing as many identifying details as possible, especially age, address and occupation.

A report not published contemporaneously can still be covered by qualified privilege, not absolute privilege.

Members of Parliament and of the House of Lords enjoy absolute privilege when speaking in the debating chambers; but journalists reporting their debates only enjoy qualified privilege.

Qualified privilege protects publication of information that is “of importance to society”. It applies to reports of:

• press conferences
• Parliamentary debates held in public
• public meetings
• council meetings held in public
• non-contemporaneous reports of court cases, including past convictions
• statements issued by government, councils, police and other agencies

To be protected by qualified privilege, a report must be:

• fair and accurate
• published without malice

And also, the material must be published in the public interest.

If the editor’s motive in publishing was spite or ill-will, rather than a duty to inform the public, a defence of qualified privilege could fail.

If someone has been defamed in a council meeting, say, it can still be safely reported; but if they complain it was unfair, an editor must publish their “reasonable letter or statement” to explain or contradict what was said. If an editor refuses, the defence of qualified privilege is lost.

There is a risk that the complainant will defame someone else! Legal advice might be needed.

But “common law” privilege applies to some extent where someone is refuting statements made against them in, say, a council meeting. In other words, this is not set out in law but it is reasonable on grounds of fairness.

Qualified privilege extends to the agenda and reports that are part of the meeting, and any written statements that are handed out.

Privilege does not cover leaked documents, since they are not intended to be in the public domain.

Important new features in the Defamation Act 2013:

Privilege is now extended to:

• peer-reviewed statements in scientific and academic journals;
• articles based on information provided by public companies at press conferences; and
• reports of the proceedings of government from anywhere around the world.

Website operators are no longer be required to pre-moderate readers’ online comments, as long as a system is in place to remove defamatory comments once complained about.

Who can sue? 

Local or central government bodies CANNOT sue in respect of their governmental functions, because this would fetter free speech. They CAN sue for libels affecting their property, or if they can show malicious falsehood.

However, individual councillors or council officers can sue if they can be identified from a report, even if they are not named.

A club usually cannot sue (unless it is an incorporated body), but its officers might.

Trade unions can sue.

(The following information needs to be updated so is paled-out).

Impact of media regulation changes

The Crime and Courts Act 2013 allows a court to impose “exemplary damages” (that is, a punishment of very high damages) on publishers not signed up to a media regulator that is recognised under the 2013 Royal Charter on the media – if one exists. They can be left paying heavy costs even if they win. That is a problem for publishers that have signed up to IPSO, the new Independent Press Standards Organisation, because it will not seek Royal Charter recognition. Another organisation, IMPRESS, has said it will seek recognition after it launches (expected early 2016), which will mean that any member of IPSO involved in a defamation case would become liable for exemplary damages.