LIBEL= PUBLICATION + DEFAMATION + IDENTIFICATION
Which means that libel requires the statement that is defamatory; it has been published to a third party (a letter, posting on internet etc) and that particular defamed person has been identified. “Libel can be a criminal offence, as well as civil wrong.” (Ref.2)
In case of net publication it is even more dangerous as it becomes international automatically, everything that person downloads (even simple copy or page load to the browser) constitutes into a permanent form. In blogs for example it is easy to forget ourselves and remember that as blogger (or contributor to a chat room) we have a complete liability in law. Furthermore, ISP or URL or editor of the website may also be liable, but not (case law developing) if they can show they did not edit the remarks posted on a blog or in a chat room. Now if you defame someone in a permanent form (published), and the person is clearly identified you may have LIBELED them. “A prosecution for a criminal libel can be brought if the publication is likely to cause a breach of the peace, or it seriously affects the reputation of the person involved.” (Ref.2)
Slander may have happened if you defame person in a non-permanent form (conversation/shouting etc.) while a third person heard it that is when that defamed person may be entitled to compensation. “In slander (unlike libel), actual damage may need to be proved.” (Ref.2)
As journalists what we say is almost always in a permanent form as we say it through a newspaper article or report or a magazine or through video report or a news story or even publication on the internet (blogging) makes it a permanent form of publication.
Other forms of libel worth mentioning are sedition (seditious/obscene libel), blasphemy, obscenity which also come under the law of criminal offences but because they are also known as legal relicts they are unlikely to be prosecuted. “Sedition involves worlds that are likely to disturb the internal piece and government of the country. The words need to be directed against the State. Obscenity involves words that would tend to deprave and corrupt those who are likely to read them.” (Ref.2)
Important fact is to remember that the person who has been libelled may sue the publisher/broadcaster, the author/writer/broadcaster, the distributor and anyone else responsible for spreading the defamation. (Ref.1) Also as a journalist you are normally indemnified by the publisher in practice – so long as you obey absolutely the editor. As long as we obey the editor we have libel indemnity. You lose this indemnity with the moment you have disobeyed the editor or acted recklessly. As the editor is defined in law as the person on whom the writ is served. In light of that freelancers are less secure, and as blogger you have no protection at all.
For example there has been a website created that lists legal cases in the United States in which bloggers have been sued for libel, privacy and related claims, or been subject to criminal investigations or prosecutions, see more in here- MLRC: Legal Actions Against Bloggers. (Ref.5) While researching I also came across a site for legal advice specifically aimed at bloggers is Electronic Frontier Foundation. (Ref.6)
The website gives lots of useful tips on libel and defamation in many different form, for example it covers matters like “Do blogs have the same constitutional protections as mainstream media?
Yes. The US Supreme Court has said that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities."
What if I republish another person's statement? (i.e. someone comments on your posts) Generally, anyone who repeats someone else's statements is just as responsible for their defamatory content as the original speaker—if they knew, or had reason to know, of the defamation. Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act, which provides a strong protection against liability for Internet "intermediaries" who provide or republish speech by others. See the Section 230 FAQ for more.
The vast weight of authority has held that Section 230 precludes liability for an intermediary's distribution of defamation. While one California court had held that the federal law does not apply to an online distributor's liability in a defamation case, the case, Barrett v. Rosenthal, was overturned by the California Supreme Court (EFF filed an amicus brief in this case)
Can I get insurance to cover defamation claims?
Yes. Many insurance companies are now offering media liability insurance policies designed to cover online libel claims. However, the costs could be steep for small blogs—The minimum annual premium is generally $2,500 for a $1 million limit, with a minimum deductible of $5,000. In addition, the insurer will conduct a review of the publisher, and may insist upon certain standards and qualifications (i.e. procedures to screen inflammatory/offensive content, procedures to "take down" content after complaint). The Online Journalism Review has an extensive guide to libel insurance for online publishers.
Will my homeowner's or renter's insurance policy cover libel lawsuits?
Maybe. Eugene Volokh's the Volokh Conspiracy notes that homeowner's insurance policies, and possibly also some renter's or umbrella insurance policies, generally cover libel lawsuits, though they usually exclude punitive damages and liability related to "business pursuits." (This would generally exclude blogs with any advertising). You should read your insurance policy carefully to see what coverage it may provide.
What's the statute of limitation on libel?
Most states have a statute of limitations on libel claims, after which point the plaintiff cannot sue over the statement. For example, in California, the one-year statute of limitations starts when the statement is first published to the public. In certain circumstances, such as when the defendant cannot be identified, a plaintiff can have more time to file a claim. Most courts have rejected claims that publishing online amounts to "continuous" publication, and start the statute of limitations ticking when the claimed defamation was first published.
What are some examples of libelous and non-libelous statements?
The following are a couple of examples from California cases; note the law may vary from state to state. Libelous (when false):
• Charging someone with being a communist (in 1959)
• Calling an attorney a "crook"
• Describing a woman as a call girl
• Accusing a minister of unethical conduct
• Accusing a father of violating the confidence of son
Not-libelous:
• Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)
• Calling a TV show participant a "local loser," "chicken butt" and "big skank"
• Calling someone a "bitch" or a "son of a bitch"
• Changing product code name from "Carl Sagan" to "Butt Head Astronomer"
Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact. “(Ref.6)
Internet libels are all about establishing who the publisher is, in other respects libel is just the same on the net as on anything else.
Even though the libel is international, as mentioned before, if you are a journalist in India or China or States where libel laws are not enforced so strongly, the new danger for you is that you can be sued in British courts (eg. Lennox Lewis – Boxing News case). The internet is having the effect of setting UK libel law as the world standard, because it is the most favourable to the litigant and gives little protection to the journalist/publisher (eg. Failure of Daily Mirror section 10 appeal against Naomi Campbell costs in a privacy case). (Ref.1)
Good recent example on the BBC website of Simon Singh who won a libel appeal
Simon Singh who is a science writer has won the right to rely on the defence of fair comment in a libel action, in a landmark ruling at the Court of Appeal.
‘Simon Singh was accused of libel by the British Chiropractic Association over an article in the Guardian in 2008. Dr Singh questioned the claims of some chiropractors over the treatment of certain childhood conditions. The High Court had said the words were fact not opinion - meaning Dr Singh could not use the fair comment defence. However, the Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley ruled High Court judge Mr Justice Eady had "erred in his approach" last May, and allowed Dr Singh's appeal. BBC News science correspondent Pallab Ghosh says that, had Justice Eady's ruling stood, it would have made it difficult for any scientist or science journalist to question claims made by companies or organisations without opening themselves up to a libel action that would be hard to win. Dr Singh described the ruling as "brilliant", but added that the action had cost £200,000 "just to define the meaning of a few words".
"After two years of battling in this libel case, at last we've got a good decision. So instead of battling uphill we're fighting with the wind behind us," he said.
"The Court of Appeal's made a very wise decision, but it just shouldn't be so horrendously expensive for a journalist or an academic journal or a scientist to defend what they mean.
"That's why people back off from saying what they really mean."
(...) "Our original argument remains that our reputation has been damaged. The BCA brought this claim only to uphold its good name and protect its reputation, honesty and integrity".
In the article in April 2008, Dr Singh suggested there was a lack of evidence for the claims some chiropractors made on treating certain childhood conditions such as colic and asthma.
The BCA alleged that Dr Singh had effectively accused its leaders of knowingly supporting bogus treatments. The case has become a cause celebre for the science community and led to calls for defamation law to be rewritten so it does not interfere with scientific debates.
(...) Dr Singh said: "The judges are clearly unhappy on how libel laws can impact on discussion, on how this libel suit has quashed debate about chiropractics to a large extent.
"They're particularly unhappy about the way scientific discussion can be silenced by libel laws. That's a real boost to the libel reform campaign."
(...) "We're now pushing ahead for bigger changes to the law so that we have the kind of public interest defence that means it wouldn't have taken two years and £200,000 to find out whether Simon can defend himself." (...).’ (Ref.7)
Clive Coleman, legal affairs analyst also said that” In defending a libel action the difference between a statement of verifiable fact and one of opinion can be crucial. A defendant who has to justify a statement of fact in a case like this would have to prove that the statement was true. That would involve calling vast amounts of scientific evidence at huge cost.
Defending a statement of opinion, so as long as it is honestly held, is much less onerous and far cheaper. This judgement strongly endorses the view that scientific controversies should be settled by scientific debate, rather than litigation.” (Ref.7)
Film here Simon Singh talks about winning libel appeal on Radio 4:
Finally, there is also a possibility of accidental libel and therefore it is crucial to identify people correctly (positive identification) – and the danger of miss-identification through error. Corporate Identification (e.g. McDonalds libel case) has its rules that should apply to not to defame anyone. As long as we are talking about a group of people of more than about 40 or body that is not small enough for all the members to say that they are identified we can avoid the danger of libel otherwise every single member of the group can sue for libel just like in the case from 1993 when police officers at the Banbury police station sued after the newspaper alleged that ‘some police officers’ at the station were corrupt.
There is a defence of “accidental libel” IF YOU MAKE A CORRECTION QUICKLY but you need to bear in mind that civil is all about measuring the damage done and calculating the compensation.
McNae’s also deals with innuendo and reporting rumours in which innuendo is especially dangerous because it involves a pre-admission that you knew what you were saying was defamatory and yet there was no proof/justification for saying it – this would cover almost everything produced on the satirical website ‘popbich’ and similar ‘gossip’ – the defence is that this is just a joke, but this can be still dangerous. Juxtaposition in magazines or newspapers, for example is usually a result of technical production errors in layout. (Ref.1)
Defamation is not the same as ‘lies’/ ‘falsehood’. “Malicious falsehoods are false statements that, though not defamatory, may still be damaging. The claimant must prove that the statement is untrue (unlike libel, where this is assumed) and malicious.”(Ref.2) Falsehood is not necessarily defamatory and we should also bear in mind that sometimes even though some allegations that we may make are defamatory they can be also true and that is when we need to make sure that we have rightful defences (justification- it is true and we can prove it; fair comment- based on the principle of freedom of speech and is based on fact; absolute/qualified privilege) and are fully supported by the intention for the public interest otherwise it is worth rethinking the consequences of publishing it. If there is malice (deliberate telling lies) then in rare cases there can be an action for malicious falsehood which is subsequently a crime. And therefore you can be not only prosecuted by the police but also have a civil action for compensation. There is also a possibility of committing a crime of injurious falsehood where the mistake has been made from an honest intention, though it may have been done careless or reckless (e.g. in business reporting when you get the prices of a product wrong for example, that is known as slander of goods). (Ref.1) The same defence of proving the allegation truth is also available in criminal proceedings for libel but in addition the defendant has to also satisfy the court that the material was published for the public benefit. (Ref.2)
Because the UK libel law is weighted more to the complainant here than anywhere else it means that if the article was printed in London and is safe in there it will be probably safe anywhere else in the world. Following this conclusion, on the other hand if some material has been published for example in Poland or China but is still available for viewers in England the publisher/journalist can still be taken into action against in High Courts in England as the material was available to view in England. (Ref.1)
To other quite interesting points on libel belongs the one that there can be no civil libel against dead, however from the criminal point of view “words spoken of a dead person may be subject of a prosecution, but only if it can be proved that they were used with the intention of provoking his/her living relatives to commit a breach of the peace, or that they had a tendency to do so.” (Ref.2)
When talking about differences between civil and criminal libel it is also worth notifying that “it is a crime to libel a class of people, provided the object is to excite the hatred of the public against the class libelled. But a journalist guilty of such conduct is more likely to be prosecuted under the race relations or religious hatred legislation.” (Ref.2)
“For publishing a defamatory libel a person may be sent to prison for up to a year and/or fined. If it can be proved that he/she knew the libel to be untrue, the period of imprisonment may be doubled.” (Ref.2)
References:
Ref.1) Media Law Lecture and notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 3
Ref.2) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.3) Simon Singh wins libel appeal: http://liberalconspiracy.org/2010/04/01/breaking-simon-singh-wins-libel-appeal/
Ref.4) Simon Singh talks about winning libel appeal on Radio 4: http://www.youtube.com/watch?v=rmxl9mtge7Y
Ref.5) MLRC: Legal Actions Against Bloggers http://mlrcblogsuits.blogspot.com/
Ref.6) Electronic Frontier Foundation: http://www.eff.org/issues/bloggers/legal/liability/defamation
Ref.7) Example on the BBC website of Simon Singh who won a libel appeal: http://news.bbc.co.uk/1/hi/uk/8598472.stm
