“It is one of the professional tasks of newspapers to unmask the fraudulent and the scandalous. It is in public interest to do it. It is a job which newspapers have done time and time again in their long history.” Lord Justice Lawton, 1965
“Libel law protects the right to reputation against defamatory allegations. But what exactly is defamatory? The courts have provided a number of definitions. At one time it was thought that a defamatory attack was one which held up the plaintiff to hatred, ridicule, or contempt. But that definition is now considered too narrow. A standard formulation is that of Lord Atkin in a House of Lords case in 1936. A defamatory publication is one which tends 'to lower the plaintiff in the estimation of right-thinking members of society generally'. This definition makes it plain that the remarks must injure the individuals reputation in the eyes of reasonable members of the public, rather than a particular group. So it is almost certainly not defamatory to write of someone that he has reported criminals to the police, since that is regarded by most people as a praiseworthy thing to do.” (Ref.4)
So if something that you write about someone ‘tends to’ lower them in estimation of right-thinking people; causes them to be shunned or avoided; disparages them in their business, trade or profession or exposes them to hatred, ridicule or contempt you have defamed them, reputation and meaning are other very important aspects to be careful with. Reputation is precious, especially for these who are working in public sectors or are active in public life like celebrities, actors or even lawyers or police. (Ref.1)
It is always important for a journalists to be able to recognise who are they writing about and whether the person would sue; then whether things that we are writing could be potentially defamatory and most importantly if so, do we have a defence?
“Obviously defamation law does not only affect newspapers, broadcasters, and publishers and the plaintiffs who sue them. Individuals, corporations, and partnerships may also be sued, if they publish a defamatory allegation (or in the case of a corporate defendant authorize its publication). This is illustrated by one of the most famous actions in the last decade, that brought by Lord Aldington against the author and distributor of a leaflet falsely accusing him of handing over prisoners of war to the Russians in the knowledge that this would lead to their death. This was in no sense a media case. But the vast majority of causes célèbres in defamation law do involve media defendants (...). “(Ref.4)
Judges usually tell juries to use their intelligence and own judgement of a completely hypothetical ‘reasonable man’, trying to recognise whether under the circumstances in which “the statement was published, reasonable men and women to whom the publication was made would be likely to understand it in a defamatory sense.” (Ref.2) you can imagine how hard making of these decisions can be.
One of a good examples from McNae’s 20th Editions describes case on the story that has appeared in the magazine section of Express on Sunday, in October 1997, the case was about film stars Tom Cruise and his wife back then Nicole Kidman, where the judge decided that allegation contained in the following story, about the married couple was not capable of bearing a defamatory meaning, and he struck it out from the couple’s claim.
The title of the article was ‘Nicole bans brickies from eyeing her up’. McNae’s gives quite an interesting quote there: “the Cruises had the builders in to do a little work on their LA mansion and Nicole ordered the hapless hodwielder to turn and face the wall as she passed. Quite natural, of course: you and I would do the same thing. They were brickies, after all, so they ought to be facing the wall.” (Ref.2) to me this behaviour sounds like an awful arrogance from her side but to Nicole it looks like it was quite a natural thing to do.
“The couple challenged the decision in Court of Appeal, and the court restored the statement to their claim, saying it was ‘very much a matter for the jury to consider’. Their counsel had told the court that to impute arrogance was plainly capable of being defamatory. (Ref.2)
Many statements are capable of carrying more than meaning and these are the ones we have to be specifically careful about. Inferences for example are “statements 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’. “ (Ref.2)
“Innuendo may seem to be innocuous to some people but which will be seen as defamatory by people with special knowledge.” Defamatory meaning can be also removed by a context, as it can be conveyed by a particular context, “if in one part of a publication something disreputable to the claimant was stated that was removed by the conclusion, ‘the bane and antidote must be taken together’.” (Ref.2) For example there can be articles created that perhaps imply defamatory statement in their first part but further in the article it can be explained and defended and the balance made so that the whole piece is not defamatory, hence the bane and antidote taken together (Charleston v News Group Newspaper LTD [1995] 2 AC 65). (Ref.2&3)
The costs involved in awards for damages for libel can be immense, there are also huge costs involved in fighting a defamation action itself that is why some of the media organisations may seem to be reluctant to take up the action. Other reasons to do so can be also uncertainty of how jury will interpret the meanings, difficulty of proving the truth if the statement even though defamatory but is still a fact) or sometimes it may be even better to settle out of court by payment of agreed damages. The ‘chilling effect’ of libel on investigative journalism has been increased even more by introduction of conditional fee agreements (CFAs- ‘no win, no fee’ agreements), Legal aid was never available for launching libel actions, but now litigants without the means to sue can do so and even be represented by lawyers who would receive nothing if they lose the case (but can claim up to 100% fee increase if they win!). (Ref.4)
The defence of justification is not only difficult but also dangerous as if it fails “the court will take a critical view of media organisation’s persistence in sticking to a story which it decides is not true, and the jury may award greater damages accordingly.” (Ref.2)
Libel and slander have different requirements as regards what a claimant must prove. In a libel case with a jury the judge either “rules whether a statement complained of is capable of bearing a defamatory meaning” (Ref.2) and if the answer is yes, “a jury must decide whether, in circumstances in which the statement was made, it was in fact defamatory.” (Ref.2) Libel damages, for example are usually determined by a jury.
There is a possibility of unintentional libel when for example a journalist, in his/her report would mistake people by not giving enough details to identify positively the person and by that letting a possibility of another person that can say ‘that could be me and it is not true that I have done that,’ for example.
Further on, Defamation via pictures is also very common, the biggest danger is in TV by for instance careless use of background shots with voice-overs that could in set with the pictures imply or create a completely different meaning to what was intended and that could create a risk of libel. Due to the fact that it has been established people and companies must not be identifiable in certain contexts, journalists have to be careful with possibility of ‘imprecise shots’. (Ref.1) “Juxtaposition is a constant danger for journalists, particularly those editing footage must take care how pictures interact with each other, and with any commentary.” (Ref.2)
It is crucial to mention facts that are very well given in McNae’s (20th Edition) that “in recent years there have been a number of developments that seemed likely to tilt the balance to a greater or lesser degree, in favour of freedom of expression:
1. The Human Rights Act (2 October 2000) took effect requiring courts to pay regard to Article 10 of the European Court of Human Rights has said that Article 10 does not involve a ‘choice between two conflicting principles’ but ‘freedom of expression that is subject to a number of exceptions which must be narrowly constructed.’
2. The decision of the House of Lords in Reynolds v Times Newspapers [2001] 2 AC 127, which greatly extended the ambit of the defence of privilege.
3. The defamation Act 1996, which introduced:
a) a summary procedure for trying defamation cases (...) . Under the procedure a judge can fix damages up to ceiling of £10,000. (...)
b) a new procedure, the offer to make amendments. “(Ref.2)
A claimant has to show the court three things when suing for libel: that the publication is defamatory, that it may be reasonably understood to refer to him/her (identification) and that it has been published to a third person. He or she does not have to prove that the statement is false or that it has been done with an intention, thirdly, claimant does not even have to provide a proof of actual damage. The claimant has to only show that the statement tends to discredit, that’s all. The thing that he/she has to prove is that the published matter identifies him/her as person defamed as well as that the statement has been published. (Ref.2)
For a defence journalist has few points to cover to avoid costly libel action:
1. Justification:
“the published matter complained of can be proved in court to be substantially true” or in some libel actions the defence applies to statements of fact, meaning that” if the words complained of are an expression of opinion they may be defended as fair comment”. These both combined “each applying as appropriate to different statements in what is published. The standard of proof needed for the justification defence to succeed is that (...) the matter must be proved true ‘on the balance of probabilities’. “(Ref.2) Justifications also means proving not only the truth but also any reasonable interpretation that may be understood of the words and any innuendos lying behind them. (Gillian Taylforth v The Sun case in 1994, Sun used justification defence and won the case being able to prove the information they had about the couple)
2. Fair Comment:
“A defendant can plead that an article expressing comment was an honestly held opinion on a matter of public interest. (...) This comment must also be based upon facts that either are stated in the story complained of, or are otherwise alluded to, or are widely-known. These facts must be true or privileged.”(Ref.2)
3. Absolute Privilege:
“Privilege exists under common law and statue, and in some circumstances, in the public interest, a defamatory statement is privileged and can be made without risk of proceedings. (...) Absolute privilege applies to court reports, but reports, but reports must be fair, accurate and contemporaneous of course.”(Ref.2)
4. Qualified Privilege:
Qualified Privilege is available as a defence where it is considered important that the facts should be freely known to the public interest and for the public benefit. “This type of Privilege “is available on many occasions under statue (e.g. for a report of a public meeting). The defence is qualified because it is lost if the motive in publishing is malicious.” And similarly as long as the published report is fair, accurate and published without malice the privilege will be by statue. (More in post on Qualified Privilege – wk 4)
5. Offer of amends:
“To use this defence a defendant must make a written offer to make a suitable correction and apology, to publish the correction in a reasonable manner, and to pay the claimant suitable damages.”(Ref.2) This is usually used in situations in which the media had defamed a person unintentionally.
The very famous defence that was introduced to the law was The Reynolds Defence which changed certain approaches since 1998, the court recognised that sometimes journalists have a duty to tell their readers about certain stories and that if they are performing that duty they should have a privilege defence against an action for libel. I talk more about The Reynolds defence in a separate post titled: Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC
“The Reynolds defence protects publication of material if it can be shown to be a matter of public interest and responsibility reported and courts will also examine whether the defendant can claim to have been engaged in ‘responsible journalism’ and ‘neutral reportage’. “
As investigative journalist, it is advisable to always make sure of the witnesses and their availability; are they going to be willing to give evidence and what is the standing of our witness (sources). It is also important to keep signed statements of the witnesses or any relevant documents to the story (originals and photocopies+ be able to explain why is it not original if it is the case) and of course always keep the evidence in a good state to be able to use it accurately in court if need.
As we know libel is also a criminal offence hence it can be dealt with either civil courts or criminal courts. It exists in two forms, defamatory libel as well as seditious and obscene libel.
References:
Ref.1) Media Law Lecture (updates, year 3, BA Journalism 2010) week 3 & 4
Ref.2) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.3) Charleston v News Group Newspaper LTD [1995] 2 AC 65 http://www.swarb.co.uk/lisc/Defam19951995.php
Ref.4) Libel and the Media : The Chilling Effect 1997 – online book : http://www.questia.com/PM.qst?a=o&docId=14370720
5) Defamation and its adjustments throughout the cases - Reynolds v The Sunday Times, Jameel v Wall Street Journal and The Oryx Company v BBC http://veronicafryd.blogspot.com/2010/11/defamation-and-its-adjustments.html
