DEFAMATION DEFENCES Flashcards
TRUTH DEFENCE
Requires words complained of in court can be proved to be true or substantially true
Truth is a complete protection against libel action
Truth defence will hold as long as the main allegation(s) can be proved true even if minor points are incorrect.
Standard of proof - ‘balance of probabilities’
Problems - Reliable witnesses, signed statements, accurate notes, audio/video evidence, high payout rate if lose
HONEST OPINION DEFENCE
Four conditions that must be met for this defence to work:
Published comment must be the honestly held opinion of the person making it
Must be recognisable to the reader/viewer/listener as being opinion/comment [e.g. in headline put ‘review’ or have ‘comment section’]
Opinion must itself be based on a probably true fact, or on privileged material [e.g. prove you were at that restaurant]
It must explicitly or implicitly indicate, at least in general terms, the act or information on which it is based [needs to say the name of the restaurant, the play.]
ABSOLUTE PRIVILEGE
A complete defence against defamation action for covering court cases from court proceedings held in public.
This is as long as the journalist’s report is: · Fair · Accurate · Published contemporaneously · Concern proceedings held in public
To be accurate any quotes or accusations must be attributed to who said them.
To be fair a report must give a summary of both sides of the case if possible. And make it clear that the defendant denies the charges (hence why there is a trial).
To be published contemporaneously a court report must be published as soon as possible after the court case or other hearing has taken place
QUALIFIED PRIVILEGE - PART 1
A list of statements having QP WITHOUT explanation or contradiction
Part 1 - Schedule 1 of the Defamation Act 1996
To have this Qualified Privilege protection, stories must first be accurate, fair, published without malice, and in the public interest
a) “A report of Parliamentary proceedings” – i.e. in the House Of Commons. They might say something defamatory about each other.
b) A thing called Hansard, which is the printed verbatim record of Parliamentary proceedings
c) Statements by or from a Government department
d) Public Registers open to inspection – in other words, authoritative lists of a specific type of information, kept accurate and up-to-date. For example, the company register administered by Companies House
e) Reports of proceedings held in public in foreign courts, and public inquiries ordered by foreign governments.
QUALIFIED PRIVILEGE - PART 2
A list of statements having QP but SUBJECT TO explanation or contradiction, but only if the party or parties defamed requests it
Part 2 - Schedule 1 of the Defamation Act 1996
To have this Qualified Privilege protection, stories must first be accurate, fair, published without malice, and in the public interest
a) Reports of speeches by councillors DURING a council meeting (committee, or full council) held in public
b) Reports of public meetings, press conferences, and scientific/academic conferences - held anywhere in the world
c) Reports of statements issued by government agencies (anywhere in the world)
d) Verbal comments by press officers are generally regarded as having QP2 protection.
e) Disciplinary action by private associations (e.g. in field of sport, business or learning)
f) Reports about companies – i.e. what is said at annual general meetings, or contents of documents circulated with the authority of a company’s board members.
LEAVE AND LICENSE
If an interviewee agrees to publication of defamatory material – whatever their motive – the journalist should get this in writing – a signed statement or an audio or visual recording in case they later change their mind.
SECTION 1 OF THE 1996 DEFAMATION ACT
Protects live broadcaster because:
They have no control over a statement that is made which might be defamatory – phone-ins for example
But to rely on the defence, live broadcasters need to react quickly to stop or cut off someone who is making a defamatory statement
PUBLIC INTEREST DEFENCE
Section 4(1) of the defamation act, 2013 says that the public interest defence is available if the defendant can show the statement complained of:
Was, or formed part of, a statement on a matter of public interest
The defendant reasonably believes that publishing was in the public interest
This may be used as a defence in the event of legal action over publication of defamatory material on a matter of public interest even if, at the time, the publisher can not prove that it was true (CHECK THE SLIDES – INCASE I WROTE THIS WRONG)
BUT – when the public interest defence is used, the key issue may be whether the story is the product of ‘responsible journalism’
ACCORD AND SATISFACTION
If something published with attracts a complaint – the complainant might be willing to accept publication of a correction and an apology to settle the matter
But, if you publish an apology it could also be an admission of guilt
If they decide to sue later for defamation, publisher can use this defence – means the complaint has already been dealt with to the satisfaction of the claimant. Not a guarantee of success – depends on the details
OFFER OF AMENDS
Definition: an offer, in writing, to publish an appropriate correction and apology, in a reasonable manner, and to pay the claimant damages and their legal bills.
Even if this is rejected and the matter proceeds to court – it can be useful, as it may be taken in account in considering damages and costs
CAN’T SUE DEFENCES
If they’re dead
12 months after defamatory statement published
