DEFAMATION WHAT IS DEFAMATION u u u u

DEFAMATION

WHAT IS DEFAMATION? u u u u Defamation law exists to protect a person’s reputation, either moral or professional, from unjustified attack. Libel is the “permanent” form – written or broadcast – and slander is the spoken form A statement is defamatory if it does one or more of these things: Exposes a person to hatred, ridicule or contempt Causes them to be shunned or avoided Lowers them in the eyes of right-thinking people generally Disparages them in their office, trade or profession BUT the person suing does not have to prove that the remark DID do that – only that it would “tend to”.

INFERENCE, INNUENDO AND THE CLAIMANT u u u u Inference is a statement with a secondary meaning which would be understood by a “reasonable person” – in other words, you don’t have to spell it out. Words innocuous in themselves can be defamatory when juxtaposed with pictures or video Innuendo is something which would seem innocuous to some people – but defamatory to those with special knowledge – the Lord Gowrie case. To bring a case the claimant must prove: That the statement WAS defamatory That it was published That it can be reasonably understood to refer to them

IDENTIFICATION AND REPETITION u u u You don’t have to have named a person – if they can prove that they can be identified they can sue Comments about an institution or company can lead to the person who heads it up suing – they can say the inference against them was clear Beware of “group libel”. If you defame a large group – all estate agents in the UK, for example – you should be safe. The smaller the group the more its members will claim they’re identifiable and have been defamed. See the Banbury CID rape case. Any repetition of a libel is a fresh libel. It’s no defence to say you were simply repeating the words of others. Libel actions must be brought within a year of publication – but see above – repetition. The Internet has also brought this into the spotlight.

DEFENCES TO LIBEL JUSTIFICATION u u This means it’s true – and you can prove it. It relates to fact – not opinion. We must be able to prove the facts we have asserted and the inferences which are apparent. We must have sufficient evidence to prove the story is true – the burden of proof is on us. We need evidence – documents, signed statements, witnesses both available and willing to testify If we lose damages can be huge. “No win no fee” cases have had a “chilling effect” on investigative journalism.

DEFENCES TO LIBEL FAIR COMMENT u u u u This defence protects opinion – not fact. To gain the defence it must be: The person’s own honestly held view made in good faith In the public interest Based on provably true facts Malice undermines this defence – the opinion must be a genuine view, not a pretence It doesn’t have to be “fair”! Generally used for reviews – books, plays, films, etc

DEFENCES TO LIBEL PRIVILEGE u u Privilege is when the public interest demands complete freedom of speech – even if the statements are defamatory and turn out to be untrue ABSOLUTE privilege is a complete bar to defamation action. It applies to MPs and peers speaking in the House of Commons/Lords and to our court reports provided they are fair, accurate and contemporaneous The MP/peer loses the AP if they repeat the remarks outside the chamber We have Qualified Privilege for our reports of Parliamentary proceedings

DEFENCES TO LIBEL PRIVILEGE u u u QUALIFIED privilege applies to a wide variety of matters in the public interest. To gain QP your report must be fair, accurate and without malice. QP is referred to in Parts 1 and II of the Schedule to the Defamation Act. Note that Part II items mean you need to give the complainant the right to explanation or contradiction. QP refers to public inquiries, local inquiries, council meetings, statements from the police, public meetings and – latterly – press conferences Press releases issued at PCs are also covered For full details see Mc. Nae p. 345