Defamation 2 Flashcards
What are the defamation defences?
Accord and satisfaction (apology and signed waiver) Truth Honest opinion Qualified privilege Absolute privilege Offer of amends Public interest
The truth defence
In the 2013 Act, the defence of ‘truth’ replaced the common law defence of ‘justification’
This is the gold standard of defences, and the most difficult to argue
The requirement for the ‘truth’ defence to succeed is that the publisher can prove what was published is ‘substantially true’ (Depp v Newsgroup Newspapers)
On ‘the balance of probabilities’
The judge will decide which version of events is most likely to be true
The ‘sting’ of the defamatory statement must be proved – the ‘sting’ is the part people are most likely to remember – eg – he lied, he cheated on his wife, he was violent, he’s a hypocrite
If more than one defamatory ‘imputation’ (allegation) is published the publisher must be able to prove as true the allegation which has the potential to cause so much reputational damage to the claimant that this allegation can be ruled by the court to outweigh, in terms of potential to damage, the other allegation(s)
So if the publisher proves the most serious allegation is true they can’t lose the case even if the lesser allegation is found not to be true
Why are media reluctant to fight defamation actions?
The uncertainty of the outcome of defamation actions – uncertainty over whether judge/jury will find meaning of the words defamatory or not
The difficulty of proving the truth of a statement
The burden of proof is on the publisher to prove the statement is ‘substantially true’
Civil law standard of proof applies - ‘on the balance of probabilities’
The publisher must prove as true the obvious, intended meaning of the statement published, and also the meaning of any inference or innuendo created is true (yet this may be particularly hard if the inference/innuendo was not created intentionally)
Sources or witnesses may be reluctant to give evidence to help the media
Passage of time may mean it is difficult to trace witnesses or their memories may fade
Judges/juries are unpredictable in the level of damages they may award, which may be very high
Damages could be higher than any settlement agreed before a trial – so media more likely to settle than go to court, even if they have a chance of winning
Even if the media organisation is successful in defending the defamation action, it is likely to bear substantial legal costs. And these costs will be much higher if it loses
What can be used as evidence?
Witness statements Interviews - notes in shorthand/on tape Audio recordings Video footage CCTV Records from official sources eg marriage certificates etc Recorded telephone calls
Section 3 of the Defamation Act 2013 - honest opinion
lays out the defence used for reviews and comment/opinion pieces
This is used to cover restaurant reviews, theatre reviews, show critiques, exhibitions, television programmes etc
Also includes opinions/comments about court cases and inquests
Honest opinion requirements
1) The comment must be the honestly held opinion of the person making it
2) It must be recognisable to the reader/viewer/listener as opinion rather than fact
3) Must be based on a provably true fact or privileged material
4) The author must explicity or implicity indicate the fact or information on which it is based
5) Statement must be recognisable as an opinion – ie ‘in my opinion’
It protects free speech
The honest opinion defence protects expression of opinion ONLY
It DOES NOT cover assertions of fact
Assertions of fact must be covered by another defence: eg truth, absolute privilege or qualified privilege
Sir Richard Branson v Evening Standard
Sir Richard Branson sued Evening Standard writer Tom Bower over a piece which said his bid to run the National Lottery was ‘motivated by financial self interest’ and he’d get ‘free PR for Virgin’
Branson lost
Court decided the piece was based on an honestly held opinion
Others might share that opinion
If he’d won it would inhibit freedom to comment on public events
David Soul v Matthew Wright (play example)
Wright sent a freelancer and gave a scathing review but he didn’t even attend - his hoist opinion defence failed as it was not his own opinion.
Public interest defence - Section 4 of the Defamation Act 2013
Under section 4 (1), the defendant is required to show that the statement complained of was, or formed part of a statement on a matter of public interest Section 4 (1) (a) requires the defendant to show that the words complained of were about a matter of public interest. Section 4 (1) (b): the defendant must believe that publication was in the public interest; the court must decide whether it is reasonable for the defendant to hold that belief.
Striking a balance - public interest defence section 4 of defamation act 2013
aims to strike a balance between the right to defend your reputation, and the freedom of the press
With the right to freedom of expression comes scrutiny of journalistic activity and the need for “responsible journalism”
The old Reynolds Defence
In Reynolds v Times Newspapers Lord Nicholls (sitting in the House of Lords) set out a non –exhaustive list of factors a court should consider when deciding if a journalist’s actions constituted “responsible journalism”
- Seriousness of allegation. The more serious the allegation, the more effort a journalist should make to check a story.
- The nature of the information. How much of a public concern is it?
- Sources. How strong are they and will they be identified?
- What steps have journalists taken to check their facts? Are notes clear and detailed?
- What is the status of the allegation? Has it already been investigated?
- How urgent was it to tell the story? How quickly did journalists need to work?
- Was comment sought from the claimant before publication? Or at least an effort to get comment?
- Did the story contain the claimant’s side of the story?
- What was the tone of the piece? Did it suggest that unproven allegations are true?
- The circumstances of publication – for example was the story rushed out and not checked properly?
What is key to getting a public interest defence?
Getting comment, or trying to, is key to being able to use the public interest defence
This requirement was established as part of the Reynolds defence
In Reynolds v Times newspapers, the Sunday Times failed to get comment from the then Irish premier Albert Reynolds before running a story that he deliberately misled the Irish parliament
The reporter said: “There was not a word of Mr Reynolds’ defence because I had decided that his defence… there was no defence.”
Explaining the lack of notes: “I was not in note-taking mode.”
Absolute privilege
An absolute privilege defence gives total protection against a libel action
It does not matter if the words reported are true or false, or if they were spoken or written maliciously – a publisher’s intent is irrelevant
The protection of absolute privilege is vital for open justice
It means anyone involved in civil or criminal court proceedings or tribunals (for example barristers making defamatory statements about defendants) has absolute privilege
It also allows journalists to report often highly defamatory claims made during court cases without fear of being sued
What are the requirements for the absolute privilege defence? If you don’t do these then you are not covered by absolute privilege.
Journalists can only use the absolute privilege defence if what they publish is:
Fair:
Present a fair summary of the case put by both sides
Contain no substantial inaccuracies
Avoid giving disproportionate weight to one side or another
Ensure headlines are fair – use quotation marks around things said by the prosecution or defence
Accurate:
Get the charges correct
All allegations in court reports must be attributed
Contemporaneous – published in the next available bulletin or edition or online - Report must be published within 28 days at the latest
In print: in the next available edition of a daily newspaper following that day’s hearing (these days online or via Twitter)
Or the following week’s edition for a weekly
Online: the same day
Broadcast: bulletin must be the same day or at the latest, early the next day
The full wording of the requirement is that what is published is:
“A fair and accurate report of judicial proceedings held in public in a court anywhere in the world, published contemporaneously.”
But quotes from people outside the court room or outside the court are not covered by privilege - you can report this after a trial has ended
Use of additional material in court reports
A court report can include background or other material which did not originate from the court without losing privilege
But it has to be “serverable” ie - a ‘reasonable reader’ must be able to tell that the background material wasn’t a report of what was said in court
