DEFAMATION CONTD

DEFENCES TO LIBEL CONTD  Section 1 of the Defamation Act 1996 extended the principle of “innocent dissemination” to broadcasting and the web.  Also known as the “live” defence, it protects us from the wholly unexpected libel in a live programme, or on a website, where the “publisher” has no control over the maker of the statement  To get the defence we must have taken “all reasonable care”.  This means we must have done proper research and we must not allow a person on air who we know to have a propensity for libel over the matter in hand.  On the internet, it protects ISPs and website providers where the public has “instant access” and where it’s post-moderated  A website must take down the offending material as soon as there is a complaint.

REYNOLDS DEFENCE  This is a developing defence arising from a House of Lords test case involving Albert Reynolds and the Sunday Times  It’s an extension of Qualified Privilege at common law, and can protect stories of major public interest which are the product of “responsible journalism”.  There are several hurdles to overcome to obtain the defence, including the seriousness of the allegation, the tone of the piece and whether comment from the other side was sought and published  “Neutral reportage” is a further development of this defence. It could protect a story which has merely reported, neutrally, an argument and not adopted the defamatory material as its’ own view. The story must, of course, be in the public interest.

MORE DEFENCES  “Accord and Satisfaction” means the matter has been successfully ended, perhaps by means of an apology or a correction. The claimant must have “accepted” this apology or correction.  You must seek legal advice before making such an apology or correction – otherwise you could make matters worse.  “Leave and Licence” means the person has agreed to the information being published/broadcast. It’s safest to get a signed statement or audio/video statement

THE REHABILITATION OF OFFENDERS ACT  This Act was passed to enable people to “live down” their offences and start afresh – their conviction having been “spent”.  A jail/youth custody term of more than two and a half years is never “spent” – below that there is a sliding scale of rehabilitation term.  There is a public interest defence – for instance to revealing the spent conviction of somebody running for public office who’s previously been convicted of a relevant offence.  “Malice” would undermine a defence – we would fail to be protected if we acted maliciously – even if we could prove that we were telling the truth  If a spent conviction is mentioned in a court case we would get our usual court reporting privilege

BANKRUPTCY AND SLANDER  Reporting that somebody is bankrupt or insolvent is highly defamatory  It’s not safe to report the filing of a bankruptcy claim by a creditor – the alleged debtor may be solvent  It is safe to report that a person is filing their own petition for bankruptcy – they’re admitting they’re insolvent  When a bankruptcy order is made and publicly disclosed you have qualified privilege  Slander – the spoken form of defamation uttered to a third party. Beware, as a journalist, of repeating a defamatory allegation during an interview or over the phone when investigating a story.

MALICIOUS FALSEHOOD  This covers statements which may not be defamatory but are still damaging  For instance, to say a business was closing down – as a result perhaps of misreading a planning application - wouldn’t be defamatory but could lead to loss of business and income  The claimant must prove the statement is untrue and that it was published “maliciously” – this could mean that we knew it was false or that we were reckless as to the truth or that we had an improper motive.