DEFAMATION

WHAT IS DEFAMATION?  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  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  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  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  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  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  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 McNae p.345