Defamation Flashcards
What does defamation law do?
Protects an individual’s personal and professional reputation from unjustified attack
What are the relevant laws?
Defamation Act 1996: Established defamation and its defences
Defamation Act 2013: Imposed that defamation cases to be heard without a jury; cases heard by a judge
What definitions are there?
- Tort: civil wrong
- Defamatory statements: published or spoken that affect the reputation of person, company or organisation
- Libel: defamatory statement in written form
- Slander: defamatory statement that’s spoken
What Act governs libellous statements?
Broadcasting Act 1990 and Theatres Act 1968 covers defamatory statements spoken in radio, television, cable or web broadcast.
Who can sue for defamation?
- Any citizen, or any corporation
- Local or central government can’t sue for defamation unless it’s about property or statement can be proven to be malicious
- Trade unions can sue for defamation
What must be proven to sue successfully for defamation?
Must prove DIP
Defamatory
Identified (can prove it was about person sueing)
Published
Claimant does not have to prove statement is false
What else must be proven?
Under Section 1 of Defamation Act 2013 claimant must show statement has caused serious harm to their reputation
To prove ‘serious harm’ there has to be a factual impact. I.e. on companies they could show a financial loss
How is defamation defined?
- Disparaging them in their profession, trade, business
- Exposing to hatred, ridicule or contempt, causing them to be shunned or avoided
- Lowering them in estimation of right-thinking members of society/reasonable people generally
How can you test what is defamatory if its subjective?
The test is what a ‘reasonable person’ would think the statement means. Statement must be read in full and in context, i.e. what is considered defamatory now may not have been 20 years ago.
Who can be sued for defamation?
Reporter, subeditor, editor, publisher, broadcaster
What can be defamatory?
- Wrong photo falsely identifying someone
- Headline must match the body of text
- Statements that are fine on their own but in context of piece are defamatory
- Inference
- Innuendo
- Repetition rule: copying defamation means you can be sued
- Section 8 Defamation Act 2013 brought in single publication rule for online, prior to this every publication online was seen as fresh libel. Can’t protect a different publisher repeating the material.
What conditions are there on sueing for defamation?
- Must sue within a year of the incident. Reporters should date their notebooks, recordings and research
- It is presumed the statement is false, so defendant has to prove it is true. This is proven on ‘balance of probabilities’ (more or less likely to have happened than not)
- You cannot defame a dead person and your family can’t sue after you die on your behalf
What about group defamation?
A whole group can sue (largest amount ever sued has been 35) because you have not specifically called out an individual in that group
Why may it be hard to fight a defamation action?
- Uncertainty about how judge may interpret meaning of statement
- Difficult to prove truth behind allegation. Claimant doesn’t have to prove statement is false
- Huge damages if trial is lost
- Huge legal costs
- May be better to settle out of court
- Could just publish an apology, but must refer to lawyers as runs risk of accepting liability
What defences have journalists enjoyed in recent years?
- Section 1 of Defamation Act 2013 states claimant must prove serious harm to reputation. Courts have been harsher on claimants who can’t prove this recently
- Section 4 of Defamation Act 2013 protects publication of defam statement if iin public interest
- Article 10 of the European Convention on Human Rights and Human Rights Act 1998 protects freedom of expression
- Widening of qualified privilege
- Liberalising of honest opinion defence
How can journalists deal with defamation?
- Publishing a prompt apology via Accord and Satisfaction: apology and correction needs to be approved and accepted at time of publication by the claimant, then they’ll agree not to sue.
- However, have to be careful with this as it could admit liability
But if the journalist did want to fight the case, what could they plead?
- Absolute privilege (Section 14 Defamation Act 1996): Applies to fair and accurate reports of court proceedings, published contemporaneously
- Qualified privilege
- Truth
- Honest opinion
How can you prove a report is fair and accurate?
- It presents a summary of the case put by both sides
- Contains no substantial inaccuracies
- Avoids giving disproportionate weight to one side
- All allegations must be attributed to be accurate
- Getting all other terminology correct, i.e. who is witness, what charges are etc.
Who has absolute and qualified privilege?
MPs have absolute privilege in Parliament. Reports have qualified privilege to report on defamatory statements in Parliament. Absolute privilege doesn’t cover statements made outside of court.
What is part one of qualified privilege?
Covered by Part 1 of Schedule 1 of Defamation Act 1996
Covers statements without need of explanation or contradiction
Include fair and accurate reports of proceedings in public that are not contemporaneous, anywhere in world
What kind of report does absolute privilege cover?
- Reports from Parliament
- Reports from court (non contemporaneous)
- Extracts from court documents (Companies House, etc)
To be covered by this reports must be:
- Fair and accurate
- Without malice
- In public interest
What is second part of qualified privilege?
Part 2 of Schedule 1 of Defamation Act 1996 covers statements subject to explanation or contradiction.
Will be protected if publisher issues a letter by way or explanation or correction.
What kind of report does qualified privilege cover?
- Info for the public published by government
- Public meeting reports
- Press officer statements
- Official documents
To be covered by this reports must be:
- Fair and accurate
- Without malice
- In public interest
- If asked to produce an apology letter it must be produced
How does the ‘truth’ defence work?
Truth is covered by Section 2 of the 2013 Act
Publications have to prove statement is ‘substantially true’, so 51% of it was true. Pubs reluctant to use it because they have to prove that %.
I.e. if you generalise and call someone a thief, prosecution would argue that implies they steal regularly i.e.only 10% true.
Can be difficult because:
- Costly
- Witnesses often reluctant to come forward
- Standard of proof needed so high
Evidence media can use for truth:
- Witnesses
- Medical records
- Photos/videos
- Police reports
- Signed statements
