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Media Law > Media Law: 16 Defences and remedies for defamation > Flashcards

Media Law: 16 Defences and remedies for defamation Flashcards

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1
Q

legal defences against defamation

[7]

A
  • consent
  • justification
  • fair comment
  • absolute privilege
  • qualified privilege
  • offer of amends
  • innocent dissemination
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2
Q

what is not a defence (and where can it be used)?

[2]

A
  • public interest

- as factor in: fair comment, qualified privilege, Reynolds

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3
Q

how does consent work?

[1]

A
  • if someone consents to you publishing the story (and everything in it) they can’t sue
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4
Q

what doesn’t count as consent?

[2]

A
  • simply consenting to being interviewed

- a refusal to either deny or confirm the allegation

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5
Q

what is the alternative name for consent?

[1]

A
  • ‘leave and licence’
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6
Q

what is ‘justification’?

[2]

A
  • being able to prove the statement is true

- needs to be provable IN COURT with EVIDENCE

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7
Q

what is NOT ‘justification’

[1]

A
  • the statement merely being morally (and not factually) right
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8
Q

DEF: proof that something is more likely to be true than not

[2]

A
  • ‘balance of probabilities’

- easier than ‘beyond reasonable doubt’ in criminal cases

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9
Q

DEF: not every single aspect of statement needs to be true, just the defamatory bits
[1]

A
  • ‘substantially true’
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10
Q

legislation for things being ‘substantially true’

[1]

A
  • s5 Defamation Act 1952 (‘the section 5 defence’)
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11
Q

DEF: the main part of a liable

[1]

A
  • ‘sting’ (e.g. the fact a man stabbed someone, not when it happened)
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12
Q

as well as outright facts, what else needs proving for ‘justification’ to work? what does this often lead to?
[2]

A
  • truth behind any implications and innuendo

- defendant and claimant disagreeing on perceived meaning of innuendos

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13
Q

what piece of law/ethics is on your side when using sources to try and justify yourself?
[1]

A
  • rules about journalists not having to reveal sources
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14
Q

besides the original evidence you used for the story, what else is allowed in justification?
[2]

A
  • new evidence (e.g. Jonathan Aitken)

- other evidence not in original story that helps prove truth

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15
Q

how can courts make claimants play ball? and what are often the results?
[2]

A
  • disclosure order: hand over all documents that prove truth

- many claimants give up claim after disclosure ordered

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16
Q

TIPS: successful ‘justification’ defence

[10]

A
  • ensure you have solid evidence BEFORE publication
  • use tape recorder (or DATE notes in sequence)
  • with shorthand/illegible writing: transcribe ASAP on computer
  • keep notes for long time (at least a year), esp for INTERNET
  • always use more than one source
  • consider whether sources will speak in court for you AND whether a jury would trust them
  • for dodgy allegations get a written statement signed (means court can issue SUBPOENA)
  • don’t risk publishing without enough evidence
  • always check when lifting stories from other media
  • remember not all stories require the same amount of care
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17
Q

when should you use ‘fair comment’ defence?

[1]

A
  • (like justification, but for) opinions and comment
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18
Q

what do you need to prove for fair comment defence?

[4]

A
  • words were comment/opinion, NOT statement of fact
  • matter of public interest
  • any facts comment is based on is true OR subject to privilege
  • made without malice (i.e. honestly)
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19
Q

what does ‘fair comment’ NOT have to be?

[2]

A
  • FAIR (i.e. jury or normal person might not think it)

- jury has to believe it’s honest opinion of the writer

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20
Q

comment vs fact

[3]

A
  • NO hard and fast rules
  • “I think” etc helps
  • some opinions (e.g. “He’s a liar”) are facts in law
  • ambiguous facts should make clear what opinions (elsewhere in article) they are referring to
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21
Q

how does ‘fair comment’ relate to readers’ letters

A
  • usually have to be consider separate to the article they’re complaining about
  • ECtHR case (1999) now suggests previous articles should be considered
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22
Q

what does public interest cover in ‘fair comment’?

A
  • “such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to other”
  • includes: public officials/authorities, art, literature, court cases…
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23
Q

what has been one of the most high-profile omissions from public interest?
[1]

A
  • private lives of public individuals
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24
Q

when can private lives be public interest?

[2]

A
  • role models

- voluntarily put themselves into public domain (e.g. run campaigns, etc.)

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25
Q

when in fair comment do the facts not have to be true?

[2]

A
  • if only some facts are true, the true ones should lead you to draw the same opinion as expressed in article
  • if facts were said in privileged circumstances (e.g. Parliament)
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26
Q

where does this differ regarding facts in ‘justification’?

[1]

A
  • only use facts known at time of publication (because they formed your opinion)
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27
Q

DEF: legal term ‘malice’

[1]

A
  • said without honestly believing it’s true
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28
Q

how does personal spite factor in?

[2]

A
  • ‘malice’ used to include conventional sense of word until case in 2001
  • jury just has to believe your opinion is genuine, no matter how spiteful
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29
Q

can a publisher rely on fair comment?

[1]

A
  • yes, so long as it’s the WRITER’S genuine opinion it doesn’t matter what the publisher thinks
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30
Q

can ‘fair comment’ be used to cover reviews?

[1]

A
  • yes, so long as facts the opinions are based upon are true
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31
Q

what’s the theory behind absolute privilege?

[1]

A
  • there are times when free speech is more important than protection of reputation
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32
Q

what is covered by absolute privilege in Parliament?

[3]

A
  • anything MPs say in Parliament
  • Hansard
  • any parliamentary reports (e.g. White Papers)
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33
Q

which courts are covered by absolute privilege?

[4]

A
  • any English court
  • European Court of Justice (+ auxiliaries)
  • European Court of Human Rights
  • any international criminal tribunal est’d by UNSC or international agreement with UK
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34
Q

but court reports ALWAYS need to be…

[3]

A
  • fair
  • accurate
  • privileged
35
Q

how do you keep court reports ‘fair’?

[3]

A
  • don’t miss out chunks of evidence
  • if previous allegations rebutted, print the rebuttal!
  • BUT single days might only discuss on side of case, reporting just what is said is fine
36
Q

pitfalls in court reporting to watch out for

[5]

A
  • don’t state allegations as fact
  • make sure you get the names right
  • verdicts: avoid errors AND insinuating verdict was wrong
  • get details of offence correct
  • get sentence correct
37
Q

how do you ensure a court report is contemporaneous?

[1]

A
  • publish it at the next available opportunity
38
Q

how can internet articles be contemporaneous

[2]

A
  • they can’t, and lose absolute privilege

- but they keep qualified privilege if the first post was contemporaneous

39
Q

what events in court aren’t covered by absolute privilege?

[3]

A
  • public shouting from gallery
  • anything said on way into court
  • documents used but not read out in court
40
Q

difference: absolute and qualified privilege

[1]

A
  • qualified privilege ONLY covers statements made without malice
41
Q

where does qualified privilege apply?

[6]

A
  • set list of official/public proceedings/documents/decisions
  • judicial proceedings in UK
  • proceedings of Parliament
  • when someone defending themselves from previous attack on character/conduct
  • people making/receiving statements have legal/social/moral duty to do so
  • responsible reporting of public interest
42
Q

which of those is statutory qualified privilege? what does that mean?
[2]

A
  • set list of official/public proceedings/documents/decisions
  • outlined in Defamation Act 1996
43
Q

what is the difference between the two groups of statutory qualified privilege?
[1]

A
  • the second has slightly more restrictions
44
Q

what falls into the first, unrestricted, group?

[2]

A
  • accurate reports of any legislature worldwide

- reports from any government

45
Q

what are the restrictions on the second group?

[2]

A
  • still covered by qualified privilege

- UNLESS claimant finds good reason against defamation

46
Q

what is in second group?

[3]

A
  • public meetings
  • meetings of public companies
  • meetings of certain organisations
47
Q

what are the rules when someone asks for a contradiction or explanation?
[3]

A
  • got to be published in ‘suitable manner’ (meaning reflects original article)
  • similar prominence in newspaper to original article
  • don’t be defamatory to original accuser in your contradiction!
48
Q

rules about official information (qualified privilege)

[4]

A
  • covers ‘matter’ issued for information of public
  • mostly in document form
  • NOT statements from senior NHS, etc.
  • BUT includes police statements issued to public
49
Q

rules about reporting public proceedings/documents

[2]

A
  • only things said during proceedings covered

- with documents: only words of documents covered

50
Q

which public meetings are covered?

[2]

A
  • pretty much anything journalists might want to go to

- subsequent press releases also covered

51
Q

rules about reporting ‘findings’

[1]

A
  • ONLY findings themselves, NOT methods leading to them
52
Q

what if report is a mix of qualified privilege and other comments/opinion?
[1]

A
  • qualified privilege still stands IF the rest is fair and accurate
53
Q

rules about responses to attacks on character

[3]

A
  • response to a defamatory statement can be met by another defamatory statement (QPriv)
  • media can report this with QPriv
  • retaliatory statement has to be relevant to initial attack
54
Q

original Reynolds case

[6]

A
  • Reynolds v Times Newspapers (1999)
  • Albert Reynolds (former Taoiseach) claimed Times said he misled Irish Parliament
  • Times said their duty to report matters of serious public interest
  • Law Lords agreed public interest important, but so was politicians’ protection from allegations
  • new form of QPriv protecting fair/responsible reports into matters of public interest
  • confirmed in later case: Loutchansky v Times Newspapers
55
Q

criteria when applying Reynolds defence

[10]

A
  • seriousness of allegations (has to be serious enough)
  • nature of info / extent of public concern
  • source of info (closeness/grudge/paid)
  • steps journos took to check info
  • status of info (i.e. does it hail from authority?)
  • urgency
  • claimant given fair right to response
  • did article include claimant’s side (at least generally)?
  • tone of article
  • circumstances of publication (inc. timing)
56
Q

how binding are the Reynolds criteria?

[4]

A
  • just guidelines, NOT hoops to jump through
  • other factors may play part
  • factors weighed differently depending on the case
  • NOT all factors have to be met
57
Q

does the Reynolds defence age well?

[3]

A
  • NO IT DOES NOT
  • false allegations OK at the time because publisher doesn’t know truth
  • if left online after truth comes out, these are now just plain false
58
Q

DEF: the newest upgrade to Reynolds

A
  • ‘neutral reporting’

- reporting defamatory allegations with no hint whether they’re true or not

59
Q

criteria for neutral reporting

[9]

A
  • public interest
  • no need to take steps to ensure info accurate
  • story (as a whole) must report the fact allegations were made, NOT the truth in them
  • objective reporting
  • doesn’t adopt allegations themselves, or stop being fair
  • responsible journalism (see Reynolds criteria)
  • seriousness of allegation, and public interest important
  • doesn’t have to be public figure / prominent person
  • urgency of story: public interest would decline, etc.
60
Q

TIPS: key to successful Reynolds defence

[2]

A
  • give subject right to reply

- consider WHOLE story (headline, editorial slant, etc.)

61
Q

how is malice different in QPriv than fair comment? why?

[2]

A
  • includes things written out of spite

- QPriv exists to let journos do their duty (i.e. accurately inform public)

62
Q

when does ‘offer of amends’ apply?

[3]

A
  • when publisher has made a mistake, e.g….
  • did not know the words were defamatory
  • did not know the words referred to the claimant
63
Q

what must be done in ‘offer of amends’

[3]

A
  • offer to print apology
  • offer to pay compensation
  • make offer before any other defences used
64
Q

what happens if claimant doesn’t take offer?

[2]

A
  • defendant can still use it in court, but can’t use any other defences
  • if chooses other defence and loses, the fact an offer of amends occurred might still reduce damages
65
Q

DEF: courts expect publishers apologies to be genuine and for them to act as such
[1]

A
  • ‘good conduct’
66
Q

printing an apology outside rules of ‘offer of amends’

[4]

A
  • can be a defence if claimant accepts and agrees not to sue
  • known as ‘accord and satisfaction’ waiver
  • best to get written acceptance for future
  • even if not accepted, still might reduce damages
67
Q

pitfalls when making apologies

[6]

A
  • apologies can defame original source (as a liar)
  • ensure apology does not repeat libel OR its meaning
  • damaging admissions: claimant’s case may be strengthened by apology
  • corrections to court reports do NOT carry same privilege as contemporaneous court report
  • insufficient prominence of apologies
  • watch your reputation: publisher’s apology may damage you
68
Q

DEF: defence protecting those less closely involved with story
[1]

A
  • ‘innocent dissemination’ defence
69
Q

who qualifies for innocent dissemination defence?

[3]

A
  • NOT author, editor or publisher
  • took reasonable care in relation to publication
  • did not know they were party to a defamatory statement
70
Q

innocent dissemination includes which parts of publishing chain?
[4]

A
  • printers
  • distributors
  • sellers
  • internet service providers
71
Q

another name for innocent dissemination in TV

[1]

A
  • defence of live broadcast
72
Q

measures that should be taken for successful live broadcast defence
[4]

A
  • consider reputation, personality or views of interviewees
  • briefly discuss/interview before broadcast to explain dangerous areas
  • take care when reading email or texts from viewers/listeners
  • AFTER defamatory remark, move on quickly ad NEVER refer back
73
Q

what is the time limit on defamation claims?

[3]

A
  • usually 1 year after publication
  • claimant can ask for extension of limitation period
  • every view on internet counts as publication
74
Q

two main types of remedy for defamation

[2]

A
  • damages

- injunction

75
Q

types of damages awarded

[5]

A
  • compensatory damages (v. difficult to accurate cost up damage to reputation, judges tell jury of previous cases)
  • aggravated damages (where media behaved particularly badly)
  • exemplary damages (v. badly behaved)
  • nominal damages (rights infringed, but no damage done)
  • contemptuous damages (been defamation, but claimant shouldn’t have brought it)
76
Q

which damages are on top of compensatory damages

[1]

A
  • aggravating OR exemplary
77
Q

max. damages for nominal damages

[1]

A
  • usually £20
78
Q

max. damages for contemptuous damages

[1]

A
  • 1p (lowest coin in circulation)
79
Q

who can overturn damages?

[1]

A
  • Court of Appeal (usually to reduce)
80
Q

what do injunctions allow?

[1]

A
  • story not to be republished in future
81
Q

DEF: injunction banning story pre-publication

[1]

A
  • interim injunction
82
Q

what needs to be considered before ordering an interim injunction?
[6]

A
  • all in HRA
  • court should be satisfied that claimant will probably win
  • importance of freedom of expression
  • extent to which the info is already/about to be available
  • public interest
  • any relevant privacy code
83
Q

what risk does claimant have with interim injunction?

[1]

A
  • if they lose subsequent trial, they may have to pay costs
84
Q

how has the HRA affected defamation?

[2]

A
  • free speech is now fundamental right (protection of reputation is not)
  • Defamation Act 2013 favours media more

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