Media Law - Defamation & Defence

After reading McNae's chapter 17, I now understand the meaning of the term Defamation. Defamatory statements are those written and published which affect the reputation of a person, company or organisation.

When explaining defamation to juries, judges tell juries that a statement is defamatory if does or tends to do the following:

• expose the person to hatred, ridicule or contempt
• cause the person to be shunned or avoided
• lower the person in the estimation of right-thinking members of society

The person suing/claimant does not have to show that the words actually did expose him/her to, for example, hatred. However, the claimant has to show the court the following three things when suing for libel:

• the publication is defamatory and so will damage their reputation
• identification
• publication

Identification
The claimant must prove that the published matter identifies him/her as the person defamed. It is dangerous to make half-hearted effort at identification, particularly in reports of court cases. This is because a person's name and details may be the same or similar to another's and can therefore, allow a person to successfully sue even if the publication was referring to another.
For example, the Daily Express reported that 'Harold Newstead, 30-year-old Camberwell man', had been sent to prison for nine months for bigamy. The paper was successfully sued by another Harold Newstead, who worked in Camberwell, and who claimed that the account had been understood to refer to him.
It was the duty of the paper to give a precise and detailed description of that person, but the paper had recklessly struck out the occupation and address of the person convicted.
Unless the court directs otherwise, a defendant's age, occupation and address, if mentioned in court, or provided by the court, should be included with his/her name in any report of the case.

A good example was given in the lecture this morning. Today's issue of The Sun featured the article headline "Farmer left to die by getaway gang". In this example, the statement is clearly defamatory as it is damaging the reputation of the gang to right-thinking members of society. It is also evidentially fact that this article has been published, however, there is no identification of the 'gang' or any of its members. In this case it is not considered defamation and therefore unlikely for any person/s to sue.

Publication

The clamaint must also prove that the statement has been published to a third person. There is no defamation if the statement and words complained of have only been addressed in speech or writing to the person they refer to. To substantiate defamation they must have been published or communicated to at least one other person. In terms of the news media, defamation is easily detectable as publication in this case is widespread.

The term 'publishers' refer to the reporter, the sub-editor, the editor, the publisher, the printer, the distributor and the broadcaster. The claimant is eligible to sue all of the previous as all have participated in the publishing of the defamatory statement and are regarded as 'publishers' at common law.

Although there is danger to journalists of being sued for libel, the law provides some defences against such lawsuits.

The main defences are:

• justification
• fair comment
• absolute privilege
• accord and satisfaction
• offer of amends

Justification
Justification is essentially telling the truth. It has been suggested it should be renamed truth as its requirement is that the publication complained of can be proved to be true. If this requirement is met, the defence provides complete protection against libel action.

An important example, mentioned in McNae's, is the Jonathan Aitken case.

In 1997 the Guardian risked the award of huge libel damages and costs when it defended a case brought against it by the former Conservative Cabinet Minister Jonathon Aitken. The paper had reported that he had allowed an Arab business associate to pay his bill at the Ritz hotel in Paris, in breach of ministerial guidelines. Aitken had resigned from the Cabinet in order, he said, to pursue the Gaurdian with the sword of truth and the sheild of fair play.

The Gaurdian embarked on a four-year investigation, which culminated in the production of vital evidence at a late stage in the trial, as Aitken appeared to be winning, and the former Minister dramatically abandoned the case. He faced costs bill of £2million and was later jailed for perjury. The Gaurdian later released the headline 'He lied and lied and lied.'

Fair Comment
This defence means the following:

• the published comment must be the honestly held opinion of the person making it
• the comment should be recognisable as opinion so it should not be worded to be perceived as factual allegation
• the comment must be based on true facts
• those facts must be recognisably stated in what is published with the comment
• the subject commented on must be a matter of public interest

Absolute privilege
Allows complete freedom of speech. It doesn't matter if the words are true or false and it doesn't matter if were spoken or written maliciously.
However, though a journalist may be reporting what is said on an occasion that is protected by absolute privilege it does not mean that his/her report is similarly protected.
Members of Parliament may say whatever they wish in the House of Commons without fear of being sued for defamation but the reports of parliamentary debates by the media only enjoy qualified privilege.

Qualified privilege
'Published in the public interest'.
This defence is available where it is considered important that the facts should be freely known in the public interest.
The Defamation Act 1996, lists the following categories of circumstances in which qualified privilege applies:

• court cases
• public meetings
• council meetings
• police statements

The requirements for qualified privilege defence to apply are:

• that the published report is fair and accurate, and published without malice.
• the matter published must be a matter of public concern, the publication of which is for the public benefit.

Accord and satisfaction
This is a plea that the matter has been otherwise disposed of, for example by the publication of a correction and apology which has been accepted by the claimant.

Offer of amends
This is an unintentional defamation. A good example of this in McNae's is the case of Artemus Jones. A journalist introduced a fictitious character into a descriptive account of a factual event in order to provide atmosphere - referring to what he thought of as his fictional character at the Dieppe motor festival 'with a woman who is not his wife'.
The name he chose was that of a real person, a barrister from North Wales. The real Artemus Jones sued and recovered substantial damages.

Defences such as the claimant has died or the claimant has agreed to the publication also occur in certain circumstances.