Defamation Defences Flashcards
Why are media organisations reluctant to defend defamation cases?
- Uncertainty of the outcome
- Difficulty of proving the truth of a statement because of the burden of proof is on publisher to prove ‘substantially true’. Sources/witnesses may be reluctant to give evidence to help the media and passage of time may mean it is difficult to trace witnesses/memories fade.
- Unpredictability in level of damages which may be awarded. Could end up costing media more than if had paid out.
- Even if successful, likely to have to bear substantial legal costs.
Truth Defence
Requirements:
Publisher must be able to prove that what was published ‘substantially true’. Standard of proof needed for truth to be proved is ‘on the balance of probabilities.
Sting of the defamatory statement must be proved.
If more than one defamatory statement ‘imputation’ is published publisher has to prove the allegation most likely to cause so much reputational damage to claimant that this allegation will be ruled to outweigh in terms o potential damage the other allegation OR prove all allegations true.
Honest Opinion
Only protects publication of a statement of opinion, not assertions of fact.
Requirements:
Published material must be honestly held opinion of person making it - even if published by another party.
Must be recognisable as opinion.
Opinion must be based on a provably true fact of privileged material.
Material must explicitly or implicitly indicate, or at least in general terms, the fact or information on which the opinion is based (allusion in what is published to the basis of the opinion).
Absolute Privilege
Applies to:
Fair and accurate reports of judicial proceedings heard in public in an official court anywhere in the world which are published contemporaneously.
If report meets these requirements absolute privilege is a complete bar to any libel case.
MPs in parliament covered by Absolute Privilege.
Media coverage of what MPs say in parliamentary proceedings held in public and in parliamentary publications are covered by qualified privilege.
What is meant by FAIR and ACCURATE reporting?
To be fair a media report of an ongoing trial must:
- make clear the defendant denies charge(s)
- AND that the case is not yet concluded e.g. by adding ‘trial continues’ to end of a report
- Law does not insist journalist attend entirety of court case as long as days reported are fair and balanced. Report cannot be too one-sided.
Absolute privilege defence may fail if report inaccurate. It is the responsibility of the journalist to ensure all facts/content are correct.
What does absolute privilege cover?
Absolute privilege only covers anything read out in court or comments made inside the courtroom.
*Reports of anything said in outbursts from the public gallery by people not party to the proceedings are not covered by absolute privilege. Can publish if they are not defamatory.
Headlines and privilege
Headlines should make sure to make it obvious if contain anything used in an allegation and not proven by facts by using attribution, quote marks, or another suitable typographical device
What is meant by contemporaneous?
‘As soon as practicable’ so the next available issue/broadcast
In terms of daily/weekly newspapers ‘one that appears in the first issue which is published after that days proceedings.’
Qualified privilege
Defamation Act 1996
Qualified privilege protects statements of the type listed in its schedule provided it is published in the public interest AND is published without malice.
Part 1 of the Schedule of the Defamation Act 1996 are protected by QP ‘without explanation and contradiction’ and include fair and accurate reports of…
- proceedings in public of courts in UK/anywhere when coverage is non-contemporaneous
- proceedings in public of legislatures anywhere
- matter published by govts or legislatures anywhere in the world
- person appointed to hold by public inquiry/govt/legislature anywhere in world
- copies of/extracts from any register or document required by law to be open to public inspection
Part 2 of the Schedule of the Defamation Act 1996 are protected by QP ‘subject to explanation or contradiction’ and include fair and accurate reports of…
- council meetings and council committee meetings held in public
- official statements issued for public on behalf of councils, the police, and govt departments
- public meetings and press conferences
- public proceedings of and findings of UK public inquiries and tribunals which are constituted under statutory powers for some professions/established by legal powers exercised by govt ministers
- findings of certain UK private associations with power to discipline members
- proceedings at a general meeting of a UK public company or of documents issued to shareholders of a listed company by board of directors, a director, the company’s auditors…
What can people defamed in a Part 2 category report expect if requested?
‘A reasonable letter or statement by way of explanation or contradiction.’
If a publisher doesn’t do this, they lose qual. priv defence.
What is the legal definition of a public meeting?
‘A meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public interest whether admission to the meeting is general or restricted.’
Press Conferences
Protected by Part 2
2000 McCartan Turkington Breen v The Times ruled documents distributed at a press conference are part of its proceedings even if not read out.
Leaked reports
An article based on a report leaked to the media rather than officially issued is not protected by qual. priv.
