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
The Public gallery
Defamatory outbursts from the public gallery made by someone who isn’t part of the proceedings are NOT covered by privilege – so beware of reporting them
If the defamatory outburst came from someone who has given evidence as a witness, they are part of the proceedings and journalists would be covered by absolute privilege in reporting them
Absolute privilege for MPs
MPs have absolute privilege to say what they like in parliament (Commons and Lords) without fear of being sued
They can make allegations about whoever they like in debates; committees or other parliamentary proceedings such as PMQs
They cannot be sued for slander (spoken) or libel in written reports such as Hansard (the official record of court proceedings)
Dates back to 17th Century Bill of Rights to protect free speech in parliament
Example of parliamentary privilege
Peter Hain used his parliamentary privilege in the House of Lords to name Sir Philip Green, the retail mogul, as the businessman accused in the Daily Telegraph of racial and sexual abuse towards employees
Green had obtained an injunction against the Telegraph to stop the newspaper naming him.
After Hain used his parliamentary privilege, the injunction was lifted.
Qualified privilege for journalists in parliament
Journalists reporting from parliament only have qualified privilege
They are protected from libel actions if their report is:
Fair and accurate
Without malice
In the public interest
What is privilege
The defence of ‘privilege’ means publishers who publish defamatory statements cannot be successfully sued for defamation - even if the material turns out to be untrue
If the published statements meet the requirements of the defence
This is good for journalism, freedom of speech and democracy
The defence of qualified privilege evolved via common law
‘Duty’ and ‘interest’ are concepts embedded in the common law version of qualified privilege
For the privilege to exist, the person communicating the information must have a ‘duty’ to do this (legal or moral) or an ‘interest’ (legal or moral) in doing so
The person receiving it must have such a ‘duty’ to consider the information or an ‘interest’ in receiving it
If malice is a motive for the communication, or the information is sent to a person who does not have a ‘duty’ to consider it or ‘interest’ in receiving it, the defence is destroyed
The statutory version of the defence of qualified privilege Is laid out in the Defamation Act 1996 as amended by the Defamation Act 2013.
There are two basic requirements:
1) What has been published is in the public interest – so the ‘duty ‘ is for the media to alert the public to something it has a legitimate ‘interest’ in knowing
2) The privilege will only apply if there was no ‘malice’ in publication
The published report must be:
1) Fair and accurate
2) In the public interest
3) Published without malice
What is malice?
This is when personal spite or desire to gain a private/personal advantage is the dominant motive in publication - ie not a sense of duty to society
It can mean there is a reckless and uncaring attitude to the facts – eg communicating facts when you know the facts are false/wrong or were reckless when publishing them
Example of malice - Thai hotel trip adviser review
Thai hotel sued TripAdvisor reviewer
US citizen posted a bad review of the Sea View Resort
He’d got into a row with staff after he wanted to bring his own bottle of alcohol to dinner
Found to have been published with malice
He lost his job and said he was worried he’d struggle to find new employment
What is covered by qualified privilege?
Defamatory statements made in the following circumstances are covered by QP: parliamentary proceedings, public inquiries, high level conferences for world leaders, public documents, council meetings, public meetings, press conferences, official statements from police and other state bodies, documents or extracts of public documents etc…
Some require you to publish a ‘reasonable explanation or contradiction’ (also known colloquially as a right of reply) and some don’t
Those which have qualified privilege ‘without explanation or contradiction’ fall under Part 1 of Schedule 1 of the Defamation Act
Those which are ‘subject to explanation or contradiction’ fall under Part 2 of Schedule 1 to the Defamation Act
What do Part 2 of Schedule 1 to the Defamation Act
need?
Publishers must give anyone defamed in reports based on such material a right of reply
The reply must be published “in a suitable manner” ie given appropriate prominence
Include:
Public information notices issued by governments and government bodies in any EU member state, including the police
Extracts from documents published by courts in EU member states and the European Court of Justice
Proceedings of UK local councils; tribunals; commissions; inquiries
Public meetings (eg Council meetings, parish council meetings, public meetings etc in any EU member state; the Channel Islands and the Isle of Man, including press conferences
Information and reports from public companies
Decisions and information from trade associations, sports associations and governing bodies and charities
What counts as a public meeting?
A public meeting is defined as ‘a lawful meeting held anywhere in the world for the furtherance or discussion of public interest, whether admission to the meeting is general or restricted.’
Remember reports of public meetings are subject to explanation or contradiction (right of reply)
Eg – Full Council meeting, fracking protest meeting, neighbourhood watch meeting
Press conferences are public meetings
Press conferences held anywhere in the world are now covered by qualified privilege under the Defamation Act 2013.
Written press releases if distributed at pressers, even if not read out loud, are considered part of press conference proceedings
Case study Lee Clegg - press conferences
Lee Clegg was a paratrooper in Northern Ireland who was manning a roadblock when he shot a joyrider dead
There was a campaign to acquit him after he was jailed for murder
During the press conference the solicitors who represented him at trial were defamed and the media reported it
They sued and were awarded damages but the media appealed all the way to the Supreme Court
It ruled that press conferences should be covered by qualified privilege in the same way as public meetings
How far does qualified privilege extend?
Qualified privilege only protects reports of actual proceedings, for example, what is said in a council meeting.
You are NOT protected if you report what someone says outside the meeting and what they say is defamatory.
Beware of the danger of libel if you are asked to publish an explanation or contradiction. If the contents of this are defamatory, you don’t have protection under the Defamation Act.
