Defamation crib sheet

The Defamation Act 2013 came into effect in 2014.

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 would a “reasonable person” think? “The intention of the publisher is irrelevant” said one judge.

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

Libel risks include juxtaposition – e.g.running an unrelated picture next to a story.

It is no longer defamatory to say someone is gay (usually). (But it may breach their privacy).

What the libel claimant must prove

The key words are defamation, identification, publication.

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

Now, a company must show serious financial loss.

A person can be defamed even if they are not named, or even if they are not the person the writer was referring to, if the real subject was not named.

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: blame is inferred.

If an unnamed member of a group is defamed, all members of that group might sue

A victim of a defamation can potentially sue everyone who helped publish it.

Anyone repeating a libel can be sued for “fresh publication”.

Key defences
  • Truth (substantially true, on the balance of probabilities)
  • Honest opinion (2013 act)
  • Accord and satisfaction: an apology was published and accepted
  • Offer of amends
  • Leave and licence: the person defamed agreed to publication
  • Innocent dissemination
  • The claimant dies
  • Absolute privilege
  • Qualified privilege

There is also a new defence of public interest: a story may turns out to be wrong, but should be made public. The publisher must believe it is true and have taken all steps to check.

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
  • that factual basis must be included in the article or report

Honest opinion does not have to be fair

Disparaging a firm’s goods is only defamatory if it impute’s discreditable conduct, or incompetence.

An apology can be hazardous if it:

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

 

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.

Innocent dissemination applies to live broadcasts and online comments as long as reasonable care has been taken to avoid defamation.

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.

Bane and antidote applies if an article makes it clear a defamatory statement is false.

Privilege

For journalists, Absolute privilege applies only to coverage of court cases, as long as what they publish:

  • is fair and accurate
  • is published contemporaneously, and
  • covers judicial proceedings held in public

Defamatory information may also emerge about witnesses or third parties. This 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.

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.

Even with absolute privilege, there is still a defamation risk over identification: if someone else could be mistaken for the defendant.

A report not published contemporaneously can still be covered by qualified 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 in the public interest.

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”.

There is a risk that the complainant will defame someone else!

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.

Privilege does not cover leaked documents.

Under the Defamation Act 2013, privilege is extended to:

  • peer-reviewed statements in scientific and academic journals;
  • articles based on information provided by public companies at press conferences

Who can sue? 

Local or central government bodies usually CANNOT sue in respect of their governmental functions, because this would fetter free speech.

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.

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 (probably December 2014), which will mean that any member of IPSO involved in a defamation case would become liable for exemplary damages.

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