Defamation

Question 1

What is defamation?

Answer 1

The law protects an individuals reputation from an unjustified attack

Defamation is the publication of a statement in written or any other permanent form which affects the reputation of a person, company or organisation.

Written form includes: a statement, text, tweet or broadcast about someone to a third party which caused or was likely to cause ‘serious harm’ to their reputation

Question 2

A statement is defamatory when the words tend to?

Answer 2

1. Cause someone to be shunned or avoided
2. Lower them in the eyes of right-thinking members of society
3. Expose them to hatred, ridicule or contempt
4. Disparage them in their business, office, trade of profession

Question 3

Defamation defence

Answer 3

There are several defences open to the publisher of the defamatory statement

One is ‘the truth defence’

The burden of proof is on the publisher – they must
prove the statement is true on the balance of probabilities

This is a lower standard of proof than in the criminal courts where guilt must be found beyond ‘reasonable doubt’

Question 4

The history of defamation

Answer 4

The libel laws in the UK are stricter than elsewhere in the world
Dates back to the idea of someone’s honour being defended – duels in the Middle Ages were fought over matters of honour
Defamation is a civil wrong or a tort – so dealt with in the civil courts
The remedy is damages (£££)

Question 5

Defamation Act 1996 (reformed by Defamation Act 2013 which modernised the law in the online era)

Answer 5

Section 1 of the Defamation Act 2013 says a statement is not defamatory unless it has caused or is likely to cause serious harm to the claimants reputation

A company must prove the statement has caused or is likely to cause it ‘serious financial loss’

The court can award damages of up to £275,000 – this is equal to the highest award given for mental distress suffered in a car accident or medial negligence case

But then there are the court costs and these can spiral into tens of thousands of pounds – loser pays these for both parties

Most media organisations settle out of court in order to avoid huge costs

Printing a denial doesn’t prevent an action for defamation
Nor does asking for a comment

Question 6

Depp v Newsgroup Newspapers

Answer 6

Johnny Depp recently sued the owners of The Sun newspaper for an article which branded him a ‘wife beater’
He denied this and took the publisher to the High Court
Newsgroup Newspapers called his former wife Amber Heard as a witness in their defence
Court heard intimate and embarrassing details of their marriage including times when he’d attacked her
Judge decided that the statement was defamatory and had caused Depp serious harm so he was entitled to bring the action
But ruled the newspaper had a defence – it was telling the truth on the balance of probabilities
So Depp lost – he will have to pay all court costs

Question 7

The Plebgate affair

Answer 7

Conservative MP and former Government Minister Andrew Mitchell sued The Sun newspaper, claiming up to £150,000 damages, for coverage suggesting he called police officers on guard in Downing Street ‘fucking plebs’

Mitchell’s pre-trial costs were more than £500,000

He sued The Sun but was himself sued by one of the police officers for the alleged suggestion that the officer lied about what happened

The officer was a key witness for The Sun

Mitchell lost the case

He had to pay the police officer £80,000 damages, and The Sun’s and the officer’s legal costs
Plus his own legal costs = estimated to be in excess of £3million

Question 8

Lawyers are used by media organisations to legal stories and investigations

Answer 8

National newspapers and television stations employ in-house lawyers
Regional media cannot afford to do this – they seek legal advice when required

Question 9

Katie hopkins and Jack Monroe tweets

Answer 9

New Statesman columnist Laurie Penny, tweeted about a memorial to the women of the Second World War which was vandalised with the words “Fuck Tory scum” during an anti-austerity demonstration
Katie Hopkins (former Apprentice contestant) confused her with cook Jack Monroe and tweeted @MsJackMonroe: “Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?”

Monroe replied: “I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You’re a piece of shit.”
She then demanded £5,000 from Hopkins for a migrants’ charity, and threatened Hopkins with a libel action if she did not pay up

Hopkins refused to pay up and having realised she had confused Monroe with journalist Laurie Penny, deleted the first tweet but further tweeted: ‘Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @MsJackMonroe.’

Question 10

Outcome of Katie Hopkins and Jack Monroe

Answer 10

Monroe sued her for defamation - Monroe told the court the exchange had led to abuse from others on Twitter including death threats
judge ruled in favour of Monroe and ordered Hopkins to pay damages of £24,000 plus (£16,000 for first tweet and £8,000 for the second)
PLUS £107,000 for Monroe’s court costs (lawyers etc) plus her own – a total bill of £300K.

Retweeting a libellous statement could land you in hot water – retweeting is republishing

Question 11

Repetition rule

Answer 11

Be careful – if you repeat a defamatory statement (eg retweet it) you could be sued for defamation too
It is no defence to say you are not liable because you only repeated the words of others

Birmingham Six case – Jailed for terrorism but later cleared on appeal. The Sun and Telegraph were successfully sued for quoting a police officer saying ‘in our opinion their guilt is beyond doubt’

If news organisations think they might lose the case they often ‘settle’ to avoid a trial
This involves paying a sum to cover some court costs and to compensate the claimant for what was published.
An apology is read out in court which must be published

Question 12

Libel and slander

Answer 12

Libel - written or broadcast in permanent form, includes defamatory statements in plays.
Slander - defamatory statement that is spoken or in some other transient form.

Cases are tried without juries since the 2013 Act came into force.

Question 13

New Defamation Act 2013 - ‘serious harm test’ and ‘single publication rule’

Answer 13

Aim was to reduce number of defamation suits by including the ‘serious harm’ test, and the creation of the ‘single publication rule’
A person has 12 months to bring an action from first publication of the offending statement – this is called the limitation period.
The test of what the words actually mean is what a reasonable person would take them to mean.

Question 14

What must the claimant prove?

Answer 14

The publication is defamatory, it may be reasonably understood to refer to him/her -whether the published statement would ‘reasonably lead those acquainted with the complainant to believe that he or she was the person referred to’ (identification) It caused serious harm to their reputation (or serious financial loss if it’s a company) and it has been published to a third person.

‘Defamation, Identification, publication”

Question 15

An example of newspapers settling

Answer 15

Eight national newspapers made public apologies to Christopher Jefferies for the libellous allegations made against him following the murder of Joanna Yeates,
have also agreed to pay him substantial libel damages, thought to total six figures.

Question 16

Why aren’t juries used regularly on defamation cases and what does the judge do?

Answer 16

It’s highly unusual for a jury to sit on a defamation case unless a court orders otherwise

Parties can ask for one but it’s unlikely

1. Juries are expensive
2. Using a judge speeds up cases
3. Keeps costs down

Judge makes all decisions
The judge has to decide first:
1) If the statement is defamatory
2) If it has caused or is likely to cause serious harm to the claimant’s reputation
In Johnny Depp ‘wifebeater’ case the judge ruled that this was the case
3) The judge must then consider whether or not there is any defence and if all requirements are met

Question 17

Meaning of use of images

Answer 17

It is important to consider the meaning of words, images and sound and what the ordinary person will think it means
Is there any hidden or secondary meaning which people will infer?
Is the meaning offensive now?
Eg in the past it could be defamatory to call someone a German or gay but it’s not any more
The test is what ‘right thinking’ members of society would think about the meaning of the words

Question 18

The high stakes in defamation means the law has a ‘chilling effect’ on journalism (INVESTIGATIVE)

Answer 18

Investigative journalism can be expensive even if nothing is published, if the publisher’s lawyer reads lot of files of evidence and advises against publication – lawyer could be charging £400+ an hour
Investigative journalism – because defamation law means it has to be thorough – is usually very expensive in terms of staff time, e.g. research
The ‘chilling effect’ means that small newspapers and magazines may not risk practising investigative journalism

Question 19

Always take great care

Answer 19

With investigative journalism you, as a journalist, know what the stakes are, because the plan is to intentionally defame a person or organisation – for example to expose a crime, inefficiency or hypocrisy - and to run a defence, if sued.
But it is possible to publish something you did not realise was defamatory – for example, you can be successfully sued by someone you did not know existed
Your intention when publishing may not be relevant – the law looks at the effect of what you published
It is also possible that something you publish can defame a person you did not know existed

Question 20

Defamation act 2013

Answer 20

The 2013 Act aimed to tilt the balance in favour of freedom of expression
It also aimed to clamp down on “libel tourism” (people coming from abroad and using our libel laws to sue) and make it more difficult for people to sue
Amended the law to reflect digital publication and use of social media etc
Claimants suing for defamation must show “serious harm” to their reputation (under section 1 of the 2013 Act)

Companies must show “serious financial harm” – so falling share prices are not sufficient evidence

Courts must pay attention to article 10 of the HRA – the right to freedom of expression
There is now a defence of “publication on a matter of public interest” (section 4 of the 2013 Act) if defendants can show “responsible journalism”

Question 21

Single publication rule and limitation period

Under Section 8 of the Defamation Act 2013

Answer 21

Claimants have 12 months after the date of the first publication to the public (in print, broadcast or published online) to sue for libel
If the story appears both in print and online, the ‘limitation period’ runs from the date the story first appeared in public
If online only, the limitation period starts from the first download by a visitor to the website
Previously claimant could sue every time someone accessed the story
Repetition rule – if you publish the material again but alter it in a ‘materially different way’ and create new meanings, the 12-month limitation period starts again
So be careful about changing online material– don’t mess with it!
If you publish something from another website which is defamatory the 12- month limitation period starts again when you publish it
The limitation period used to be six years
Keep notebooks for at least a year and get in habit of putting dates and times of interviews

Question 22

Inferences and innuendo

Answer 22

An inference is a statement with a secondary meaning which can be understood by someone without specialist knowledge reading between the lines
Eg I saw my lecturer go into the pub and come out two hours later – she got into her car and was swerving all over the road

An innuendo – a nod or hint towards a hidden meaning which is defamatory to someone with specialist knowledge
Eg I saw my male friend go into the white house on the corner of Sleep Street – many might know it’s a brothel – innuendo is that he is visiting prostitutes

Question 23

Lord Gowrie case

Answer 23

In 1986, Lord Gowrie, a former Cabinet Minister, sued The Star newspaper over an article which implied he took drugs. he won substantial damages.
Referenced ‘expensive habits’ and the words ‘snort’ and the reference to a ‘silver spoon around his neck’ implying he had resigned from the Cabinet because his ministerial salary was insufficient to finance the habit.

Question 24

Identification

Answer 24

whether the published statement would ‘reasonably lead those acquainted with the complainant to believe that he or she was the person referred to’
Always check photos and captions to ensure you’ve identified the correct person
Check ages, addresses and occupations to make sure there is no mistaken identity and always identify people fully – especially in court reporting
It is better to name people rather than allude to them – otherwise you could inadvertently defame others as well

Question 25

Newstead v London express

Answer 25

In 1940 a man called Harold Newstead successfully sued the London Express newspaper for a court report, which referred to ‘Harold Newstead, a 30-year-old Camberley man’ being jailed for bigamy’
But there was another Harold Newstead of Camberley - he successfully sued for libel because, he argued, his acquaintances thought the article referred to him.
This is why court reports should always include the address and occupation of the defendant if this information is given out during proceedings

Question 26

Why shouldn’t you identify a group of people?

Answer 26

It’s better to use a name rather than trying to blur identification
Don’t print for example the Tesco on Infirmary Road is badly managed – you could be defaming several managers
Case study - Banbury CID
In 1986 a newspaper published an allegation made by a woman that she’d been raped by a detective from Banbury CID – the paper was successfully sued by 12 detectives!
Case law doesn’t set a clear figure for when a group is too big for those in it to claim they’ve been identified – in Aiken and others v Police Review 1995 35 police dog handlers successfully sued a policing magazine

Question 27

Juxtaposition

Answer 27

Beware! - the use of text and images on a page or the editing of images or video footage alongside commentary
Woman sued the Sheffield Star after it ran a picture of her on a night out on West Street next to a piece about prostitutes – thus implying she was a prostitute

Question 28

Publication

Answer 28

The words complained of must be published to a third party
But just because the allegedly libelous words have been published online it doesn’t mean a libel action will succeed
If hardly anyone has downloaded the material, there is not ‘substantial publication’

Question 29

Section 5 Defamation Act

Answer 29

Protects website operators against defamation by users if they show they are only hosting content

BUT if the claimant can’t identify the user
OR
The website operator has failed to act on a notice of complaint then the website operator can be held liable

Question 30

A general protection

Answer 30

Media organisations and other website operators who don’t moderate the comments on their websites are protected against action for comments posted which breach criminal law (Under the Electronic Commerce Regulations 2002 Regulation 19)

If a post:
threatens violence
breaches Contempt of Court laws
identifies victims of sexual assault
Operators are protected if they take down the posts as soon as they see them

Question 31

Badly worded apologies - can make things worse

Answer 31

Can make matters worse
Be careful and seek advice from colleagues, newsdesk, editor
Don’t admit anything on the phone or in an email as you are then admitting liability
Printing an apology might not stop someone from suing
Don’t repeat the libel when you print apology – allude to it but don’t publish the full allegation
If there is a dispute between two parties, don’t publish an apology in relation to one party – the other could sue you
Never offer to change a court report (there is a specific defence for court reporting)

Question 32

Accord and satisfaction (one of seven defences for defamation)

Answer 32

It means a deal is done between the parties to prevent the person who has been defamed from suing

The publisher agrees to publish a correction and apology
In return the complainant will sign a waiver which states they will not sue and they are happy with the action taken
If they try to sue the publisher has a signed agreement

Question 33

Who can and can’t sue?

Answer 33

CAN: Individuals (in practice, though you don’t have to be rich, it does help)
Corporations (eg private companies, incorporated bodies like universities)
BUT companies trading for profit must show that they have suffered serious financial loss
Trade unions

CANT: Elected bodies such as councils, political parties
In Derbyshire County Council v Times Newspapers 1993 the court found the local authority could not sue for defamation as it must be open to criticism.
To allow it to sue would have a ‘chill’ effect on free speech
Relatives of the dead - unless relatives can prove own reputation has been affected
Unincorporated associations such as sports clubs