Part 2 - Defamation and Related Law

Question 1

When did the Defamation Act 2013 come into effect?

Answer 1

January 2014.

Question 2

What is libel?

Answer 2

Action taken against defamation in permanent form, e.g. printed matter, broadcast, photograph.

Question 3

What is slander?

Answer 3

Action taken against defamation in transient form, e.g. spoken word.

Question 4

What was London known as and why?

Answer 4

Libel capital of the world due to the UK’s claimant-friendly defamation law causing libel tourism.

Question 5

Which three facts does a claimant need to prove to sue for libel and what is this known as?

Answer 5

1. He/she was defamed in the eyes of a reasonable person.
2. The statement complained about must be reasonably understood to refer to the claimant (i.e. they have been identified, even if not named)
3. Defamatory statement has been published to a third person.

Defamation, identification, publication.

Question 6

What is said to happen when a person is defamed?

Answer 6

The statement causes or is likely to cause serious harm to the claimant’s reputation.

Question 7

What is meant by ‘serious harm’? (four)

Answer 7

The statement:

• exposes person to hatred, ridicule, or contempt
• causes him/her to be shunned or avoided
• lowers him/her in the estimation of right-thinking members of society generally
• disparages him/her in his/her business, trade, office, or profession

Question 8

What must be noted in regard to the reputation of a body that trades for profit?

Answer 8

Harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.

Question 9

What two things to defamatory statements include? Describe them.

Answer 9

1. Innuendo - hidden/secondary meaning obvious to someone with special knowledge.
2. Inference - hidden/secondary meaning that does not require special knowledge in order to be understood.

Question 10

What is the test for identification?

Answer 10

Whether a statement would ‘reasonably lead people acquainted with the claimant to believe that the claimant was the person referred to.’

Question 11

What is identification by class?

Answer 11

When individuals can claim identification as part of a small, recognisable group.

Question 12

Why is it common practice to give more detail about a defendant, e.g. address, occupation?

Answer 12

To avoid half-hearted identification where someone has a similar name.

Question 13

When does the period for bringing a defamation action start?

Answer 13

From the date of the first publication of material to the public.

Question 14

In which five ways can photos and images be defamatory?

Answer 14

• juxtaposition
• lax captioning of photos/online footage
• digital manipulation of image
• inappropriate use of library images
• defamatory content within photograph

Question 15

What are the five reasons that editors can be deterred from running stories, even if they believe that what they have written is true?

Answer 15

1. Extent of damages if case is lose, esp. if justification defence fails.
2. Possible costs - may be greater than damages esp. if claimant uses CFA.
3. Issues surrounding 1-2 years it may take to bring case to court - vital witnesses may have left country, forgotten vital evidence, or died.
4. Not all evidence may be admissable.
5. Difficulty of proving ‘truth’ of defamatory allegations.

Question 16

What are the four key defences against defamation that the media can use?

Answer 16

1. Truth
2. Honest opinion
3. Absolute privilege
4. Qualified privilege

Question 17

What does it mean to say that a defamatory statement is true?

Answer 17

You must prove the statement is true with hard evidence and convincing witnesses.

Question 18

When may honest opinion be used as a defence?

Answer 18

For editorial, opinion, and comment pieces.

Question 19

What does the judge have to do to accept honest opinion as a defence?

Answer 19

Does not have to agree with the comment nor believe average reader would agree with it. Only has to decide whether any honest man or woman was capable of holding that opinion on the proved or privileged fact.

Question 20

What conditions must be met by the defendant for honest opinion to be accepted?

Answer 20

1. statement complained of was statement of opinion
2. statement complained of indicated, whether in general or specific terms, the basis of the opinion
3. it is an honestly-held opinion on the basis of:
   - any fact which existed at the time the statement complained of was published
   - anything asserted to be a fact in a privileged statement published before the statement complained of

Question 21

When is the honest opinion defence defeated?

Answer 21

If the claimant shows the defendant did not hold the opinion.

Question 22

When does absolute privilege apply to media coverage?

Answer 22

Applies to media reports of criminal court proceedings as well as civil courts and tribunals.

Question 23

What must a report be to qualify for absolute privilege?

Answer 23

Absolute privilege applies to fair and accurate reports of judicial proceedings heard in public anywhere in the world which are published contemporaneously.

Question 24

What does it mean for a report to be fair?

Answer 24

It must be sufficiently balanced so that the reader/listener/viewer is not misled.

Question 25

What does it mean for a report to be accurate?

Answer 25

It must contain no substantial inaccuracies.

Question 26

What does it mean for a report to be contemporaneous?

Answer 26

It must be published in the next available issue/broadcast. If it is not, it has qualified privilege.

Question 27

If part of the evidence, including judicial proceedings, is a document containing defamatory material, what can you safely report and why?

Answer 27

Only what is read out in court because only what is said as part of the court proceedings is privileged. What is not read out is not privileged.

Question 28

When is an outburst from a public gallery safe to publish?

Answer 28

When it is innocuous.

Question 29

What must a report be to claim qualified privilege?

Answer 29

A fair and accurate record of an oral statement or document in the public interest or on a matter of public concern published without malice.

Question 30

What situations does Part One of the Schedule to the Defamation Act 1996 list where qualified privilege applies?

Answer 30

• reporting of parliamentary proceedings and papers
• media reports of public proceedings of legislatures anywhere in the world
• media coverage of any matter published by any governments or legislatures

Question 31

Who receives absolute privilege and qualified privilege in parliamentary proceedings?

Answer 31

MPs and peers receive absolute privilege for whatever they themselves say within the Houses of Parliament, reporters’ accounts receive qualified privilege.

Question 32

Qualified privilege covers…

Answer 32

…non-contemporaneous coverage of public court proceedings anywhere in the world.

Question 33

What else does qualified privilege under Part One apply to?

Answer 33

Public inquiries set up by the government and official court documents, e.g. court lists.

Question 34

What situations does Part Two of the Schedule to the Defamation Act 1996 list where qualified privilege applies?

Answer 34

• specifically council meetings and council committees

- refers separately to public meetings

Question 35

What is additional to Part Two of the Schedule to the Defamation Act 1996?

Answer 35

Additionally subject to publication, if requested, of a reasonable letter or statement by way of explanation or contradiction.

Question 36

What is a public meeting defined as?

Answer 36

A bona fide meetings lawfully convened for a lawful purpose and for furtherance and discussion of a matter of public concern, whether attendance at the meeting is general or restricted.

Question 37

What are also covered by qualified privilege under Part Two?

Answer 37

• press conferences
• fair and accurate copies of official notices (or extracts) issued for public information by certain authorities.
• employment tribunals
• AGM (shareholders’ meetings) of UK PLCs
• scientific and academic conferences
• public inquiries convened by local authorities

Question 38

Are the contents of a press release distributed at a press conference covered by qualified privilege? Why?

Answer 38

Yes, even if the contents are not read out, as press releases distributed at a press conference are ‘taken as read’.

Question 39

Which five (six) other issues/defences are there regarding defamation?

Answer 39

1. Apologies - Accord and Satisfaction Defence
2. Offer of amends
3. Leave and licence
4. Section 1 Defence of ‘Innocent Dissemination’
5. Section 5 of Defamation Act 2013
   (6. Regulation 19 of EU Electronic Commerce Regulation)

Question 40

What are the conditions of the Accord and Satisfaction Defence? (four)

Answer 40

1. The defendant can claim the matter has been disposed of, e.g. by publication of a correction and apology accepted by the claimant
2. The words of the apology must be agreed with the claimant (ideally in writing)
3. Apology must be offered ‘without prejudice’ (publisher is not admitting liability)
4. Potential claimant is asked to sign a ‘waiver’ - waiving their right to sue

Question 41

What are the conditions of an offer of amends? (three)

Answer 41

1. This applies to cases where the media unintentionally defame someone and the defendant did not know and had no reason to know that the statement was false and defamatory
2. The defendant must make an offer of a suitable correction and apology and pay suitable damages
3. The offer should be made promptly to minimise damages.

Question 42

What are the conditions for the leave and licence defence? (two)

Answer 42

1. The subject of the story who wishes to sue for libel must have consented to its publication and so cannot sue.
2. The publisher must show consent given, ideally written and signed evidence

Question 43

Who is the Section 1 Defence of ‘Innocent Dissemination’ available to?

Answer 43

ISPs, broadcasters, and website hosts where the defendant (who is NOT the author, editor, or publisher) took reasonable care yet did not know and had no reason to believe the publication was defamatory of the claimant.

Question 44

Who is not counted as the defendant in the Section 1 Defence of ‘Innocent Dissemination’?

Answer 44

Author, editor, or publisher.

Question 45

What must the host do to claim the Section 1 Defence of ‘Innocent Dissemination’?

Answer 45

1. Remove defamatory material as soon as the complaint is received.
2. Adopt a ‘hands-off’ approach as pre-moderating comments may mean that the host becomes the publisher.
3. The host must act swiftly once something defamatory has been posted.

Question 46

Which case can be cited when discussing the Section 1 Defence of ‘Innocent Dissemination’?

Answer 46

Godfrey v Demon Internet

Question 47

Who does the Section 1 Defence of Innocent Dissemination also protect?

Answer 47

Live broadcasts where defamatory accusations are made on-air by a listener and the host is able to avoid being sued.

Question 48

What counts as an ‘innocent party’ in defamation cases (s1)?

Answer 48

Someone NOT an editor, author, or publisher or material and did not pre-moderate comments, who did not know and had no reason to know that the material was defamatory.

Question 49

What is ‘reasonable care’ in defamation cases (s1)?

Answer 49

Removal of the posting as soon as the publisher is made aware, and possible warnings about ‘take-downs’ and the inclusion of ‘report’ buttons.

Question 50

What is Section 5 of the Defamation Act directed at? (three)

Answer 50

1. Defence for website operators as long as they did not post the defamatory statement on website.
2. Host has immunity if it allows the would-be claimant to take action against the poster - site operator has to give complainant details of poster.
3. If the poster of anonymous, complainant cannot launch proceedings and material must be taken down.

Question 51

What does Regulation 19 of the EU Electronic Commerce Regulations state and who does it protect?

Answer 51

Websites do not have liability until notified of defamatory publication, so many sites operate ‘notice and take down’ procedures. Covers ‘innocent’ publishers against unlawful or illegal material they unwittingly publish.

Question 52

Which pitfalls must you be aware of regarding corrections? (four)

Answer 52

1. Making matters worse.
2. Original story not actionable but correction is.
3. Correction may concede liability.
4. Don’t disguise correction as follow-up story.