Week 3: Defamation part 2 Flashcards
Section 1 of the 1996 defamation act
Responsibility for publication.
(1) In defamation proceedings a person has a defence if he shows that—
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
Of either defence
If such a comment was moderated before it appeared on website, this defence cannot/is less likely to succeed
Regulation 19 of the Electronic Commerce Regulations [2002]
says organisation/person is not liable
if did not know that a reader had posted a defamatory/unlawful comment
Of either defence
If such a comment was moderated before it appeared on website, this defence cannot/is less likely to succeed
what is the Offer of amends?
This is section 2 of the 1996 defamation act and can be used as a defence.
An offer to make amends under this section is an offer—
(a)to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party,
(b)to publish the correction and apology in a manner that is reasonable and practicable in the circumstances, and
(c)to pay to the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable.
If accepted, then the pursuer should not be taking any legal action if the binding offer and apology has been accepted.
what is the rehabilitation of Offenders Act 1974
To summarise, after a certain time, depending on the crime, that person does not need to disclose the crime he/she committed. They are ‘rehabilitated’.
however if you have had a custodial sentence which is over four years, your rehabilitation is never spent and should remain with you.
The rehabilitation time depends on the length of custodial sentence or type of punishment
Why must a journalist be aware of the Rehabilitation of Offenders Act 1974?
A person can sue for libel if their criminal past has been reported, and they have spent that conviction – ie – the time limit has lapsed.
If you reported than an adult had been fined £3,000 for assaulting someone six years ago, this person could sue you as the rehabilitation period for a fine and for those 18 and over, lasts for five years.
However, there are defences…
Defences that can be used if the Rehabilitation of Offenders Act 1974 is breached?
However, if you want to defend and contest the libel action, you can use at least one of the below defences…
Truth – there was a conviction.
Qualified privilege – protects non-contemporaneous reports of court cases if defence’s requirements are met. By mentioning the conviction, you are in effect mentioning the court case.
Honest opinion – is this person fit for public office if they have been convicted of serious crimes?
“Even if the conviction referred to is ‘spent’, the defences apply unless the publication was malicious”.
Malice – that’s the key ingredient. You would be reporting the person’s conviction in the public interest. If you are not, and you are being malicious/sensationalist, then it would be difficult to defend.
article 10 of the ECHR allows journalists the defence of freedom of expression however if the statement is true then you just use veritas
Is there a defence of public interest for defamation?
Sadly not under the 1996 act. As you have learned, qualified privilege is the closest defence which is used to report matters that have been aired/published in the public.
However, the Reynolds vs. Times Newspapers (1999) case, “suggests that journalists will sometimes be protected if they are responsibly reporting significant matters of public interest.”
McInnes (2010), p.269
