Defamation

Question 1

What is the general principle of Defamation?

Answer 1

The law protects an individual personal and professional reputation from unjustified attack.
In civil law a statement making such an attack may be found to be tort - a civil wrong in which the court may award monetary damages.
Defamatory statements are those that could be written or spoken which effect the reputation of a person, company or organisation.
WRITTEN - is a libel for which damages can be rewarded.
SPOKEN - a tort of slander which may incur damages unless a defence is applied.

Question 2

Broadcasting act 1990 and The Theatres act 1986

Answer 2

Any defamatory statements spoken can be held libel and slander.

Question 3

What is the definition of a defamatory statement?

Defamation act 2013

Answer 3

Exposing them to hatred, ridicule or contempt or causing them to be shunned or avoided.
Lowering them in estimation of right thinking members
Disparaging the person in their business, trade, office or profession.
Which the court of appeal has heard means connoting a tendency to cause serious harm.

Question 4

Inference

Answer 4

A statement with a secondary meaning which could be understood by someone without specialist knowledge.

Question 5

Innuendos:

Answer 5

In the law of libel is a statement which may seem to be an innocuous to some people but defamatory to others with special knowledge.

Question 6

Photos and captioning:

Answer 6

Using the wrong photo identifying someone in a defamatory context even if not named could be held libel.
Juxtaposing - placing a photo incorrectly if it wrongly suggests by juxtaposition that someone shown is a person in a story.

Question 7

What does the Claimant have to prove?

Answer 7

That the statement complained of was defamatory.
The statement referred to was them.
The statement was published.

Question 8

What does libel law concern?

Answer 8

Libel law concerns the reputation of an individual or corporation. A statement is defamatory if a reasonable person reads it or hears it and then it lowers their estimation of that business or person

Question 9

What is the repetition rule?

Answer 9

Every repetition of a libel is a fresh publication and creates a fresh cause of action. It is no defence to say you the publisher are not libel because you only repeated the words of others.

Question 10

What is the case law for the repetition rule?

Answer 10

The Birmingham six case, where after six men were acquitted of terrorist offences, the sun repeated a Police mans allegation, first published in the Sunday telegraph saying that the six were guilty after all. Both paid damages.

Question 11

What is the test of identification?

Answer 11

Whether it would reasonably lead people acquainted with them to believe they are the person being referred to.

Question 12

What is defamatory law in reference to groups?

Answer 12

If the statement refers to someone being a member of a group and includes no other identifying feature of that person all members of that group can sue for defamation even if the publisher was only referring to one of them.

Question 13

What is the test of identification case law?

Answer 13

The Daily Express reported that Harold Newstead, 30 from Camberwell was jailed for 9 months for Bigamy.
Another Harold Newstead who worked in Camberwell sued claiming the report was understood to be referring to him - he won.

Question 14

What is absolute privilege as a defence?

Answer 14

The public interest argues that there should be freedom of speech without any risk of proceedings of defamation. The only time journalists can use this is within court.
The requirements are:
A fair and accurate report of judicial proceedings held in public within the UK and published contemporaneously.
The Defamation act 2013 extended these proceedings to any court established under the law of the country and territory outside the UK and any international court or tribunal established by the security council of the united nations or by the international agreement such as the ECHR.

Question 15

Why is absolute privilege for court reports vital?

Answer 15

Often what is said in court is highly defamatory and reporting without protection would be impossible

Question 16

What does Absolute Privilege not cover?

Answer 16

It doesn’t cover people who are not party to the court proceedings such as people in the gallery.
You should not report on interruptions that could be defamatory.
If a document is not read out loud in an open court then its not covered.

Question 17

What are the basic requirements for Qualified Privilege?

Answer 17

Only for reports of proceedings. Relating to the list of statements published in schedule one. The published report must be fair and accurate and published without malice. There is also the general requirements that the matter published must be a matter of public interest, the publication of which is for the public benefit.

Question 18

What does part one of the schedule to the defamation act 1996 state:

Answer 18

A list of statements having qualified privilege without explanation or contradiction:
proceedings in public of legislatures anywhere in the world.
Reports of matters published by the government or legislatures.
Proceedings in public courts when the coverage is non contemporaneous
A person appointed by a government anywhere in the world to hold an enquiry.
Reports of copies of extracts from any register or document required by law to be open to public inspection.

Question 19

What does part two of the schedule to the defamation act 1996 state:

Answer 19

A list of statements thus privileged but subject to explanation or contradiction.
Reports of council meetings and committee held in public.
Official statements and press conferences anywhere in the world.
Official statements issued on the behalf of councils, the police and government departments.
public proceedings of findings for disciplinary panels of professions for which the panels are constituted under statutory powers.
The findings of UK private associations.
Proceedings at a general meeting of a UK company.

Question 20

Honest Opinion defence:

Answer 20

Only protects a publication of a statement or opinion.
The requirements of the defence:
1) The published material must be the honestly held opinion of the person making it.
2) It must be recognisable as an opinion.
3) The opinion must be based on provably true fact or privileged matter.
4) The material must explicitly or implicitly indicate at least in general terms the fact or information on which the opinion is based.

Question 21

Striking a balance within the public interest:

Answer 21

The public interest defence in the 2013 act aims to strike a balance between the right to reputation and the maintenance of the free press.
With the right of freedom of expression comes scrutiny of journalistic activity and the need for responsible journalism.

Question 22

Define public interest:

Answer 22

The 2013 act does not define public interest. The courts however will consider material to be within the public interest if it is of real public concern, this depends on publication and market.
Editors code, IPSO and OFCOM define public interest as areas of public concern such as crime or activities which are a danger to the public.
The public interest defence is intended to reflect the principles in Reynolds V Times newspapers.

Question 23

The public interest defence:

Answer 23

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 the statement on the matter of public interest. 
Section 4 (1) (A) requires the words complained of were about the matter within the 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.

Question 24

What is the case study relating to public interest?

Answer 24

Renoylds V Times news. Lord Nichollos set out a non exauhstive list of factors a court should consider when deciding if journalists actions constituted reasonable journalism.

Question 25

The Truth defence:

Answer 25

In regards of statements as facts:
It will succeed if the publisher can prove that the published material was substantially true.
To civil law standard of proof which is on balance of probabilities.

Question 26

To use defences you have to pass the test:

Answer 26

Seriousness of allegation
the nature of the information 
sources 
checked their facts 
the status of allegation
how urgent was it to tell the story
was comment sought
did it have the claimants side?
the circumstances

Question 27

What is the section one defence?

Answer 27

Defamation act 1996 are that the defendant:
Is not the author, editor or publisher of defamatory material and the defendant took reasonable care as regards publication of the material and did not know and had no reason to believe that whatever part they had in the publication caused or contributed to the defamatory matter being published.

Question 28

What does the section one defence help in live broadcasts?

Answer 28

It gives some protection for what is broadcast in live situations. If a guest or a member of the public makes a defamatory allegation without any warning that he or she intends to make.
BUT the broadcaster will have needed to have taken reasonable care a requirement of the defence.
Inviting someone to make a comment who is known to make defamatory comments will not be regarded as taking reasonable care and any guest or member of the public that starts making a defamatory comment will need to be stopped.

Question 29

How does the section one defence help online comments?

Answer 29

It may protect a media organisation if a reader posts a defamatory comment about someone else on the organisations website.
Section one would not apply if:
The organisation moderates before it publishes.
Moderation makes it the editors opinion.
A failure to moderate properly would be seen as a lack of reasonable care.
If a media organisation gets a complaint about a defamatory comment the best thing to do is to remove it immediately. If later the media organisation decides it is not defamatory or there is another defence in libel law to cover it, it can be put back on the website.

Question 30

What is section 5 of the defamation act 2013?

Answer 30

It is for website operators if a reader posts a defamatory comment.

Question 31

what is regulation 19 defamation?

Answer 31

A media organisation will have a defence under regulation 19 of the electronic commerce regulations 2002 for a defamatory comment posted directly onto the website by a reader/viewer/listener.
If the comment was not moderated by the media organisation before it was posted there by the reader.
And it did not know by any other means before the comment appeared that it was defamatory.
And if it is removed quickly if there is a complaint about it.

Question 32

What is leave and license?

Answer 32

If in a libel case it can be proved that prior to publication the claimant agreed to the defamatory matter being published by him/her then the defendant will be able to use the leave/license defence.
A verbal agreement is not enough.
If the claimant gives a full reply to the defamatory statement then in turn has given permission.

Question 33

What do we mean by a breach of confidence?

Answer 33

A media organisation can be sued by someone which claims what is planned to be published is a breach of confidence. The court will use three criteria to assess:

1) Whether the information published has the nessacerry quality of confidence. A confidential stamp will be considered.
2) If the information was originally communicated in circumstances imposing an obligation of confidence.
3) If there is likely to be or has been unauthorised use of that information to the detriment of the party who originally communicated it.

Question 34

What can a person do if they believe there has been a breach of confidence?

Answer 34

Get a court injunction forbidding publication.
the court may then make the media organisation deliver up (give back.)
The court may ask us as journalists to disclose the source.
If it has already been published then:
We will be libel to pay damages
may be ordered to state account of profits.

Question 35

What is the defamation dangers surrounding bankruptcy?

Answer 35

A creditor is someone who is owed a debt of money.
The person who owes the money is known as the debtor.
If the debt is not paid the creditor can take civil court and can get county/high court action on the debtor to pay the debt.
If the debtor still does not pay, the creditor can go further and try and make the debtor bankruptcy filing a petition at county court for the debtor to be declared bankrupt.
It is NOT safe in regards of defamation for a media organisation to report mere rumours of bankruptcy or even the actual filing of bankruptcy petition by the creditor.
You must wait to see if a bankruptcy order is made by a judge. If it is made it is open to inspection at the county court so a fair and accurate media report of it. If it is made it is open to full inspection at the county court so a fair and accurate media report of it is protected by qualified privilege.
If a person files their own this can be safely reported.

Question 36

What does protection of sources mean?

Answer 36

Case law has established that the rights in article 10 of the European convention on human rights mean that media or journalists should feel compelled to reveal sources unless the court rules that the disclosure of is nessacerry in a democratic society because of an over riding requirement in the public interest.

Question 37

In regards to protection of sources what are the steps all journalists should take as an ethical norm?

Answer 37

Ascertaining from the source how he or she would like to be described.
Taking case that identity is not being betrayed by being kept on computers or by emails.
Identities of sources that have been sought through official agencies, journalists should use untraceable pay as you go phones.
Journalists should not carry a smart phone to any meetings as they can be tracked.
They should choose a meeting place that is not covered by CCTV.