Dancing with Defamation

Defamation is one the biggest if not the biggest legal issue us journalists have to deal with, even on WINOL I have found myself discussing it with reporters and lecturers. So what actually is defamation , in the simplest terms defamation or defaming someone is saying something negative about a person, company or organisation. Which as a journalist can be a difficult this to avoid.

The legal definition of a defamatory statement as given in McNae's is that a statement about a person defamatory if it tends to:

• Expose a person to hatred, ridicule, or contempt; or
• causes the person to be shunned or avoided; or
• lower the person in the estimation of right-thinking members of society generally; or
• disparage the person in his/her business, trade, office, or profession.

The words tends to are very important in this case because it means that the claimant, the person claiming to have been defamed, doesn't have to show that they were actually exposed to hatred or ridicule ect.

There are ways of defaming a person without actually asserting a defamatory statement, these are known as inference and innuendo.

Inference

As the name implies, is when someone infers a defamatory statement, this could be something as simple as saying “a man, known for his views against alcoholism was seen leaving a pub late last night, the local member was said to have been stumbling and dropped his mobile phone.” This implies that he was drunk and because of his stance against alcohol this statememnt would defame him. Even though I have not said he was drunk, by saying he was leaving a pub late and night and stumbling I have inferred that he was.

McNae's definition of inference is:

• 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 wordy affairs.

Innuendo

Innuendo is similar to inference, but the main difference is that innuendo is that unlike inference innuendo can seem like a normal statement to the general public, but there is a group people with special knowledge that can then understand that the statement is in fact implying something defamatory.

McNae's definition of innuendo is:

• An innuendo is a statement which may seem innocuous by some people but which will be seen as defamatory by people with special knowledge.

The person claiming to have been defamed by innuendo must prove two thing, firstly that the special facts or circumstances giving rise to the innuendo and secondly that there are people who know about these when the statement was published.

A high profile example of defamation through innuendo which has is active at the moment is Lord McAlphine after the recent Newsnight broadcast. The BBC thought that they would be legally safe because they did not name anyone during the report, but it has become clear that they gave enough information to allude towards McAlpine, which then lead to people like George Monboit to tweet about the report, identifying McAlpine,http://www.telegraph.co.uk/news/uknews/crime/9683457/Lord-McAlpine-Guardian-will-not-pay-George-Monbiots-legal-costs.html

This aticle: http://www.pressgazette.co.uk/lord-mcalpine-accuses-media-defamation-innuendo-over-child-abuse-links gives an overview of the case.

With the introduction of no win no fee lawyers in recent years the realm of libel courts to the masses where as before they were mainly used by wealthy and litigious celebrities. This means that journalists have to be even more careful about what they write and say.

But of you do defame someone then there are several things the claimant must prove to be able to sue for damages, these are:

• the publication is defamatory; and
• it may be reasonably understood to refer to him/her – that is, 'identification'; and
• it has been published to a third person

An easy three word mantra to remember this is: defamation, identification, publication.

Defamation: The claimant must prove they have been defamed, I have already been through what makes a statement defamatory.

Identification: The claimant must prove that the material identifies him/her. On this subject McNae writes “The test of whether the published statement identifies the claimant is whether it would reasonably lead people acquainted with him/her to believe that he/her was the person referred to.”

In 1862 a judge said that it is only necessary that “those who know the claimant can make out that he/she is the person meant”

Journalist have to be careful when writing about members of organisations, for example if these is only a single female officer in a station and I wrote something defamatory about the female police officer, but did not name her, it is obvious who I am writing about. Also derogatory comments about institutions can reflect upwards onto the person who runs the institution, McNae especially warns about criticising schools.

Wrongly identifying is another danger we face, this means checking facts like how a name is spelt and that a picture if of the correct person. McNae gives an example from the Daily Mail who published a photo of the wrong man in the coverage of a robbery trial.

http://www.rjw.co.uk/legal-services/media-libel-privacy/defamation-libel-slander/recent-cases/case/negligent-misstatement-about-nurse-leads-to-defamation-claim/#axzz2CPFLB2Lx Here is an example in which a newspaper clearly defames a nurse, but has no legal defence because they named the wrong nurse in the article.

The way to avoid miss identification is to identify someone as mush as you can, this can mean including a persons age, address and occupation alongside the CORRECT picture. This is especially important when court reporting.

It is possible to defame a group, if the group is small enough. So if a journalist writes something defamatory about a small group or organisation, McNae uses the example of a small police station, but does not identify a specific person in the station then if the group is small enough all the members of the station can sue. There is currently no actual number with defines how large these groups can be, but a group of 35 police dog handler's was views sufficient to identify them as individuals.

A well known example of this occurred after allegations that a detective at Banbury CID had raped a woman. The publication failed to name an individual and were sued by the 12 detectives.

The final thing to talk about before wrapping up Identification is Juxtaposition. This is when a photograph is placed incorrectly or the wrong photograph is used, this can be especially bad if the position of the picture suggest that it is the person being identified in a separate story.

Publication: This is the simplest to prove, if the statement has been said to or been written down and shown to anyone other than the person it refers to then it has been published, and once it is in a newspaper it has definitely been published. As far as the internet is concerned this is where things can become a little tricky, within English copyright law a claimant cannot sue unless there is a 'significant publication'. The example provided by McNae's showed that only 5 people had viewed the defamatory material in the UK, and three of these were the claimants 'camp'.

One other thing for people to be mindful of, especially within WINOL and as students is the laws around repeating statement of others. Every repetition of a libel is a fresh publication, which creates a fresh cause of action, and there is no defence for you to day you were just repeating the words of others. One of the most common cases of this is repeating statements made by interviewees without being able to prove they are truthful.

It is key to remember that we are all publishers now, every blog, tweet and post on facebook can defame someone and can land you with a big legal bill.

Defences

Now that we can identify when a statement will be defamatory and when you can be sued lets look at the defences.

There are three main defences a journalist can use against libel claims, these are:

• Justification
• Comment
• Privilege

Justification is the simplest and best defence of the three, this defence is purely proving that what you said it true. There are some requirements you must meet to be able to use this defence, these are:

• that the published material complained of can be proved in a court to be substantially true
• the material must be proved to be true on the 'balance of probabilities'

This is less evidence than is required for 'beyond reasonable doubt' but the publication must have enough evidence to persuade a jury, or a judge when no jury is present, that their version of events is the right one. If this requirement is met it gives complete protection against the libel action.

Honest Comment

This is the second of the main defences and put simple is giving an honest opinion, like with justification there are several requirements if this defence is to be used, these are:

• the published comment must be honestly held in theopinion of the person making it
• it must be recognisable as comment rather than as factual allegations
• it must be based or provably true facts/privileged material
• it must implicitly or explicitly indicate, at least in general terms, the facts on which is it was based.

http://www.thestage.co.uk/features/analysis-opinion/2012/11/ground-breaking-libel-case-was-close-shave-for-gillettes/ Here is an example where the honest comment defence failed, even after it was amended.

Privilege

There are two types of privilege, absolute and qualified privilege, absolute privilege provides a complete defence against any defamatory action, even if malicious. Members of parliament have absolute privilege, but as far as journalist are concerned we have to make do with qualified privilege.

Qualified privilege is a defence available to journalist reporting certain events, there are:

• debates held in public at any legislature in the world
• court proceedings held in public anywhere in the world
• public meetings and press conferences
• the meetings of councils, their committees and sub-committees
• statements issued by for the public by government departments

Like all of the defences there are several requirements a journalist must meet to use this defence. Put simple these are fast, accurate and fair, which is a mantra that has been instilled in us from the beginning of the course as a general way to conduct good journalism.

Fast or contemporaneous means that the report must be published 'as soon as practicable'. For newspapers this means the day after the hearing, and for broadcasters on their next broadcast, be that the same day or the start of the next day.

Accurate as always being accurate is important in journalism, and especially so within court, this means making sure not to report a witness and the defendant or is there are several defendants making sure that you report the correct sentence for each.

Fair there are two important factors here, the first is being without malice, the journalist must only publish with the motive to inform the public.

The final defence I will talk about is the Reynold's defence, this defence came about after the 1998 case between Albert Reynolds and the Times Newspaper, the action came about after the Times published an article claiming that Reynolds had misled the Irish parliament. Although the Times lost the case, after the trial it was deemed that it is a journalists duty to publish media in the public interest, even if it cannot be proven to be true.

Lord Nichollis set out a list of rules to show if the publication is the work of a responsible journalist and therefore able to use the defence, these rules are:

1. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
2. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
3. The steps taken to verify the information.
4. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
5. The urgency of the matter. News is often a perishable commodity.
6. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
7. Whether the article contained the gist of the plaintiff's side of the story.
8. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
9. The circumstances of the publication, including the timing.
   
10. The Circumstances of the publication, including the timing

A recent use of the Reynold's defence can be seen here http://www.guardian.co.uk/media/2012/mar/21/times-libel-reynolds-defence?intcmp=239 in which the Times used it to publish an article about police corruption. The original publication in the newspaper and on the website were deemed to be covered under the Reynold's defence. But after a police investigation Flood was exonerated of any wrong doing, the Times failed to update their website and the judge in the court of appeals said that the failure to update the website was not responsible journalism. This is an important thing to remember that once a story is written and published it cannot be pushed out of your mind, because changes in the story can change your legal defence.

Currently there is a new Defamation bill going through the House of Lords at the moment which will no doubt change libel law and the defences journalists have. The key thing at the moment looks the be the inclusion of a simple and effective public interest defence which will hopefully provide more freedom for journalists. You can read more about the libel reform here http://www.libelreform.org/

A recent defamation case I saw while writing this blog is from Australia, where google has had to pay $208,000 to a man whos name was lined to a gangster. This raises the question that can a search engine defame someone when it is just running off an algorithm. I am sure google will not let this happen again because the suit came about after their failure to act.

It is interesting to see how the internet and defamation have come together this week and when English defamation law will catch up.