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Media Law > Media Law: 15 Defamation > Flashcards

Media Law: 15 Defamation Flashcards

1
Q

why is defamation law there?

[1]

A
  • to protect people from untrue statements that might damage their reputation
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2
Q

what must claimant prove to succeed in defamation action?

[3]

A
  • statement was defamatory
  • statement referred to the claimant
  • statement was published
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3
Q

DEF: defence whereby you can prove defamatory statement was true
[1]

A
  • ‘justification’
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4
Q

types of defamation

[2]

A
  • libel (permanently recorded form)

- slander (transient form)

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5
Q

forms libel can take

[5]

A
  • printed
  • broadcast (Broadcasting Act 1990)
  • films and videos
  • internet
  • public performances / plays (Theatres Act 1968)
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6
Q

(McBride/Bagshaw) defamation will cause a normal person to:

[4]

A
  • think less of them as a person
  • think they couldn’t do their job properly
  • shun or avoid them
  • treat them as figure of fun or ridicule
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7
Q

with this in mind, what’re the most important issues?

[3]

A
  • NOT how person defamed feels
  • how other people will react to defamed person
  • NO specific examples needed, just that the statement would TEND to make people react like this
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8
Q

some big defamation cases

[8]

A
  • Byrne v Deane (golf gambling poem)
  • Jason Donovan v The Face (gay allegation)
  • Berkoff v Burchill (Steven Berkoff = Frankenstein)
  • Nicole Kidman’s wall-facing builders
  • Ivereigh v Associated Newspapers (abortion priest)
  • Taj Hargey v Muslim Weekly (liberal = not real Muslim)
  • Simon Bowman v MGN (Hannah Waterman’s ‘new man’)
  • Dr Sarah Thornton v Telegraph (‘copy approval’ not ordinary language)
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9
Q

assumptions if parties settle out of court

[2]

A
  • NOT necessarily proof of defamation

- publication legal advice that defamation likely

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10
Q

some big cases settled out of court

[5]

A
  • Chris Parker leaving EastEnders for not seeing shrink
  • Noel Edmonds seducing woman from husband
  • Victoria Beckham’s TV crew didn’t like her
  • Keira Knightly skinny photo Daily Mail mum
  • Cristiano Ronaldo dancing and drinking
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11
Q

where does moral obligation to be truthful originate?

[4]

A
  • NOT law courts (non-defamatory untruths are fine)
  • PCC guidelines
  • NUJ guidelines
  • Ofcom guidelines
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12
Q

who has to prove the truth?

[2]

A
  • the publication (in order to get ‘justification’ defence)

- claimant has to prove it’s DEFAMATORY

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13
Q

cases considering change over time

[2]

A
  • Amy Barker having sex with Bryan McFadden

- Mitchell v Faber & Faber (calling Hendrix ‘nigger’ and ‘coon’)

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14
Q

what if they’ve already got a bad reputation?

[2]

A
  • if you make it worse then you’ll get sued
  • if ‘reasonable person’s’ perception doesn’t change (e.g. celeb with drug problems alleged to have take drugs one time) then you’ll probably be fine
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15
Q

when can previous convictions/conduct be used?

[2]

A
  • NOT in original case: previous misconduct (e.g. previous affairs) cannot be brought before jury
  • once libel confirmed, CAN be used to offset damages
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16
Q

another name for innuendo

[1]

A
  • defamatory implication
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17
Q

can you get away with innuendo?

[1]

A
  • NO, court takes what reasonable person would THINK words mean
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18
Q

some big innuendo cases

[3]

A
  • Lord Gowrie: ‘expensive habits’ ‘snort’ ‘silverspoon’
  • Liberace: ‘deadly, winking, sniggering, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother-love’
  • Lisa Jeynes ‘Lisa the geezer’ transsexual LOST
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19
Q

extra thing for claimant to prove in innocent innuendo

[1]

A
  • that readership would know facts making innocent mistakes worse (e.g. veggie eating steak)
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20
Q

cases where pictures have been defamatory

[5]

A
  • man sitting next to prostitute in book
  • meat porter NOT a thief
  • Andy Johnson pic next to ‘drink & drugs’ article
  • Harry Capehorn ASBO campaign model
  • Waseem Yaquib in BBC programme about charity Hamas links
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21
Q

DEF: when innocent statement becomes defamatory because of material it is placed next to
[1]

A
  • ‘juxtaposition’
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22
Q

why is juxtaposition especially easy in broadcasting

[1]

A
  • images on screen are easily connected to narration
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23
Q

protection against subbing errors

[1]

A
  • keep copy of unsubbed story
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24
Q

DEF: consideration of everything on the page

[2]

A
  • context

- can dramatically alter outcomes of defamation cases

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25
Q

DEF: defamatory statement then offset by other words

[1]

A
  • ‘bane and the antidote’
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26
Q

differences in context defence for broadcast

[1]

A
  • viewer can’t go back over content in same way as print, so words for context might be missed
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27
Q

context defence online

[2]

A
  • articles linked together can offset defamation

- CASE: Mr Budu not an illegal immigrant

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28
Q

is quoting other people’s words a defence?

[2]

A
  • NO. not unless you can prove it’s true

- broadcast may have ‘live’ defence, but still need to mitigate chances of libel

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29
Q

can you report rumours?

[1]

A
  • NO. courts assume readers see ‘no smoke without fire’
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30
Q

can you use the word ‘allegedly’?

[2]

A
  • NOT in a serious context

- can sometimes work in context of humour

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31
Q

DEF: suggesting that bad behaviour is a regular thing

[1]

A
  • ‘implying habitual conduct’
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32
Q

CASE: implying habitual conduct

[1]

A
  • David and Carol Johnson caravans ‘con man’
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33
Q

dangers of reporting investigations

[1]

A
  • reporting allegations (and suggesting they’re true) can lead to libel
34
Q

phrasing changes implication of someone being investigated

[3]

A
  • person guilty of crime
  • reasonable grounds to suspect they’re guilty
  • reasonable grounds for investigation into whether they’re guilty of the crime
35
Q

DEF: when smaller convictions get wiped from slate

A
  • ‘spent convictions’
36
Q

‘spent convictions’ apply to how many months?

A
  • sentences of up to 30 months
37
Q

after conviction is spent, where should they NOT be mentioned?

A
  • job applications
  • civil cases
  • criminal cases unless absolutely necessary
38
Q

can media mention a spent conviction?

A
  • YES

- unless mentioned in malice

39
Q

when can product reviews stray into defamation?

A
  • if you imply the manufacturer has acted discreditably

- if you imply manufacturer unfit for their job

40
Q

BIG product review defamation case

[2]

A
  • Walker Wingsail Systems V Sheahan & IPC Bray Magazines

- Yachting World review = £1.4m damages

41
Q

defamation in relation to jokes

[1]

A
  • if a reasonable person can see truth in it, you’re in trouble
42
Q

two humour cases

[2]

A
  • George Galloway and Jcom (won)

- Elton John and Guardian ‘diary’ (lost)

43
Q

are readers letters ok?

[1]

A
  • NO, no they are not…
44
Q

how recognisable must the claimant be when considering whether the article ‘referred to the claimant’?
[1]

A
  • recognisable by close family/friends
45
Q

how can you get caught for defamation if another media outlet runs the same story?
[2]

A
  • they reveal who the story is about

- previouslty innocent details now let readers know who your story is about

46
Q

why can NOT naming a person get you into more trouble?

[1]

A
  • if you name one of a group of people, the whole group can sue you (e.g. one of the directors… an officer of ____ station…)
47
Q

things to remember with pixelating/bleeping

[2]

A
  • must not be in any way identifiable

- seek legal advice before using

48
Q

DEF: naming someone else by accident (fitting same description)
[1]

A
  • ‘unintentional referencing’
49
Q

how do courts respond to unintentional referencing?

[2]

A
  • accept the practicality of not knowing everyone on the planet
  • ‘offer of amends’ is often used to minimise damage to publication and claimant
50
Q

when can defaming a group land you in trouble?

[2]

A
  • if it’s small enough for each member to be defamed personally (i.e. ‘a law firm is useless’ rather than ‘lawyers are useless’)
  • there is no official number for when this works/doesn’t
51
Q

example of a group that can never sue for defamation

[1]

A
  • political parties
52
Q

DEF: a statement being ‘published’ (technical)

[1]

A
  • communicated to another person who isn’t the claimant or the defendant’s spouse
53
Q

what happens if you repeat a libel?

[1]

A
  • counts as separate libel, creates a new case
54
Q

when does publication happen online?

[1]

A
  • every time the text is archived
55
Q

does it matter who’s read the online article?

[2]

A
  • claimant does NOT have to prove article has been read

- defendant can bring evidence that very few people in court’s jurisdiction have read article

56
Q

how are media websites protected from public messageboard defamation?
[4]

A
  • Electronic Commerce (EC Directive) Regulations 2002
  • did not know material was defamatory
  • not aware of circumstances/facts that would have told them it was defamatory
  • acted quickly to remove access to material once they knew
57
Q

what is easily overlooked and can see you sued for more damages after print/broadcast case?
[1]

A
  • not removing defamatory material from your online archive
58
Q

can you report what previous publications said and were not challenged over?
[1]

A
  • NO, your publication counts as a fresh libel
59
Q

who is legally considered to be the publisher?

[7]

A
  • writer
  • sub-editor
  • editor
  • publisher
  • distributor
  • service provider (online)
  • broadcasting company (TV/radio)
60
Q

DEF: meaning owner can be blamed for employees’ actions

[1]

A
  • ‘vicarious liability’
61
Q

DEF: agreement whereby freelancer can be forced to pay libel costs to publication
[1]

A
  • indemnity clause
62
Q

what are the rules of libel being repeated in more than one publication/broadcast?
[2]

A
  • claimant can sue for any/all of them

- not necessarily at same time (though restrictions to damages occur in this instance)

63
Q

what in particular should broadcasters watch out for here?

[1]

A
  • showing libellous stories while doing a newspaper round-up
64
Q

who can sue for libel?

[4]

A
  • individuals
  • corporations
  • individuals within corporations (on top of libel of corporation itself)
  • some associations (e.g. clubs) that are incorporated
65
Q

who cannot sue for libel?

[6]

A
  • relatives of the dead (unless statements about dead defame the living, e.g. Parky the Liar)
  • corporations for anything beyond business reputation (i.e. NOT for hurt feelings, etc.)
  • trade unions (since Trade Union & Labour Relations Act 1992)
  • local authorities / central government
  • political parties
  • unincorporated organisations (i.e. don’t have legal right of corporation)
66
Q

DEF: ‘corporation’

[1]

A
  • any organisations which have a legal existence beyond that of the individuals who manage them (e.g. companies, schools, universities…)
67
Q

should you care about the ordinary folk?

A
  • until recently, no not really
  • then along came conditional fee arrangements (‘no win, no fee’)
  • solicitors get nothing if they lose, but increase fees by up to 100% if they win
68
Q

why do claimants from abroad love England?

A
  • waaaay easier to win defamation cases

- high legal fees means defendants often settle out of court even if they reckon they will win (just in case…)

69
Q

DEF: claimants suing publications in England een if only a few copies sold here

A
  • ‘libel tourism’
70
Q

example where journalist might commit slander

A
  • investigation confronting person with allegations within hearing of third party
  • repeat allegations when checking them with someone else
71
Q

factors that allow someone to sue for slander (not needed for libel)
[5]

A
  • statement caused them some loss (e.g. of business)
  • claimed committed a crime carrying prison sentence
  • claimed had contagious disease
  • claimed no good at job/business
  • (if woman) not chaste or committed adultery
72
Q

TIPS: if you receive a phone call about complaint

[3]

A
  • saying less is safer than saying more
  • make a detailed note, say you will refer it to editor
  • never offer off-the-cuff apology, this could make your publication more liable and remove your indemnity as a journalist
73
Q

TIPS: if you receive letter of complaint

[2]

A
  • never ignore it

- swift response, say you’ll investigate, give date of reply

74
Q

TIPS: who do you tell?

[2]

A
  • your editor

- insurers (if you have insurance against complaint)

75
Q

where is the correct response to complaints outlined?

[1]

A
  • Pre-Action Protocol, Civil Procedure Rules 1999
76
Q

what are the steps in the Protocol?

[4]

A
  • get complainant to issue complaint in writing, with all info required in Protocol
  • defendant reply with full written response (if it’ll take longer than 14 days, notify the complainant)
  • both parties should act reasonable to keep costs proportionate
  • consider alternatives (e.g. reference to PCC code or agreement between them)
77
Q

what does the Defamation Act 2013 aim to do?

[1]

A
  • ensure a fair balance between the right to freedom of expression and protection of reputation
78
Q

main changes in Defamation Act 2013

[5]

A
  • claimant must show they’ve suffered serious harm before suing
  • removes presumption in favour of jury trial
  • new defence: “responsible publication on matters of public interest”
  • additional protection for owners of sites with user-generated content (so long as they facilitate the dispute being settled between the parties)
  • replace “justification and fair comment” with “truth and honest opinion”
79
Q

the “truth” defence

A
  • defendant has to prove the statement is “substantially true”
  • legal principles underlying (abolished) “justification” defence will likely still be used in courts
80
Q

the “honest opinion” defence

A
  • replaces “fair comment”
  • any honest person could have held that opinion based on fact available at the time of statement or anything asserted to be fact in a privileged statement before statement complained of
  • don’t need to actually KNOW the fact at the time of making the statement
  • previous requirement of “public interest” now removed

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