Media Law: 15 Defamation Flashcards Preview

Media Law > Media Law: 15 Defamation > Flashcards

Flashcards in Media Law: 15 Defamation Deck (80):

why is defamation law there?

- to protect people from untrue statements that might damage their reputation


what must claimant prove to succeed in defamation action?

- statement was defamatory
- statement referred to the claimant
- statement was published


DEF: defence whereby you can prove defamatory statement was true

- 'justification'


types of defamation

- libel (permanently recorded form)
- slander (transient form)


forms libel can take

- printed
- broadcast (Broadcasting Act 1990)
- films and videos
- internet
- public performances / plays (Theatres Act 1968)


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

- 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


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

- 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


some big defamation cases

- 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)


assumptions if parties settle out of court

- NOT necessarily proof of defamation
- publication legal advice that defamation likely


some big cases settled out of court

- 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


where does moral obligation to be truthful originate?

- NOT law courts (non-defamatory untruths are fine)
- PCC guidelines
- NUJ guidelines
- Ofcom guidelines


who has to prove the truth?

- the publication (in order to get 'justification' defence)
- claimant has to prove it's DEFAMATORY


cases considering change over time

- Amy Barker having sex with Bryan McFadden
- Mitchell v Faber & Faber (calling Hendrix 'nigger' and 'coon')


what if they've already got a bad reputation?

- 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


when can previous convictions/conduct be used?

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


another name for innuendo

- defamatory implication


can you get away with innuendo?

- NO, court takes what reasonable person would THINK words mean


some big innuendo cases

- 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


extra thing for claimant to prove in innocent innuendo

- that readership would know facts making innocent mistakes worse (e.g. veggie eating steak)


cases where pictures have been defamatory

- 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


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

- 'juxtaposition'


why is juxtaposition especially easy in broadcasting

- images on screen are easily connected to narration


protection against subbing errors

- keep copy of unsubbed story


DEF: consideration of everything on the page

- context
- can dramatically alter outcomes of defamation cases


DEF: defamatory statement then offset by other words

- 'bane and the antidote'


differences in context defence for broadcast

- viewer can't go back over content in same way as print, so words for context might be missed


context defence online

- articles linked together can offset defamation
- CASE: Mr Budu not an illegal immigrant


is quoting other people's words a defence?

- NO. not unless you can prove it's true
- broadcast may have 'live' defence, but still need to mitigate chances of libel


can you report rumours?

- NO. courts assume readers see 'no smoke without fire'


can you use the word 'allegedly'?

- NOT in a serious context
- can sometimes work in context of humour


DEF: suggesting that bad behaviour is a regular thing

- 'implying habitual conduct'


CASE: implying habitual conduct

- David and Carol Johnson caravans 'con man'


dangers of reporting investigations

- reporting allegations (and suggesting they're true) can lead to libel


phrasing changes implication of someone being investigated

- person guilty of crime
- reasonable grounds to suspect they're guilty
- reasonable grounds for investigation into whether they're guilty of the crime


DEF: when smaller convictions get wiped from slate

- 'spent convictions'


'spent convictions' apply to how many months?

- sentences of up to 30 months


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

- job applications
- civil cases
- criminal cases unless absolutely necessary


can media mention a spent conviction?

- unless mentioned in malice


when can product reviews stray into defamation?

- if you imply the manufacturer has acted discreditably
- if you imply manufacturer unfit for their job


BIG product review defamation case

- Walker Wingsail Systems V Sheahan & IPC Bray Magazines
- Yachting World review = £1.4m damages


defamation in relation to jokes

- if a reasonable person can see truth in it, you're in trouble


two humour cases

- George Galloway and Jcom (won)
- Elton John and Guardian 'diary' (lost)


are readers letters ok?

- NO, no they are not...


how recognisable must the claimant be when considering whether the article 'referred to the claimant'?

- recognisable by close family/friends


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

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


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

- 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...)


things to remember with pixelating/bleeping

- must not be in any way identifiable
- seek legal advice before using


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

- 'unintentional referencing'


how do courts respond to unintentional referencing?

- accept the practicality of not knowing everyone on the planet
- 'offer of amends' is often used to minimise damage to publication and claimant


when can defaming a group land you in trouble?

- 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


example of a group that can never sue for defamation

- political parties


DEF: a statement being 'published' (technical)

- communicated to another person who isn't the claimant or the defendant's spouse


what happens if you repeat a libel?

- counts as separate libel, creates a new case


when does publication happen online?

- every time the text is archived


does it matter who's read the online article?

- 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


how are media websites protected from public messageboard defamation?

- 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


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

- not removing defamatory material from your online archive


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

- NO, your publication counts as a fresh libel


who is legally considered to be the publisher?

- writer
- sub-editor
- editor
- publisher
- service provider (online)
- broadcasting company (TV/radio)


DEF: meaning owner can be blamed for employees' actions

- 'vicarious liability'


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

- indemnity clause


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

- claimant can sue for any/all of them
- not necessarily at same time (though restrictions to damages occur in this instance)


what in particular should broadcasters watch out for here?

- showing libellous stories while doing a newspaper round-up


who can sue for libel?

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


who cannot sue for libel?

- 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)


DEF: 'corporation'

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


should you care about the ordinary folk?

- 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


why do claimants from abroad love England?

- 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...)


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

- 'libel tourism'


example where journalist might commit slander

- investigation confronting person with allegations within hearing of third party
- repeat allegations when checking them with someone else


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

- 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


TIPS: if you receive a phone call about complaint

- 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


TIPS: if you receive letter of complaint

- never ignore it
- swift response, say you'll investigate, give date of reply


TIPS: who do you tell?

- your editor
- insurers (if you have insurance against complaint)


where is the correct response to complaints outlined?

- Pre-Action Protocol, Civil Procedure Rules 1999


what are the steps in the Protocol?

- 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)


what does the Defamation Act 2013 aim to do?

- ensure a fair balance between the right to freedom of expression and protection of reputation


main changes in Defamation Act 2013

- 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"


the "truth" defence

- defendant has to prove the statement is "substantially true"
- legal principles underlying (abolished) "justification" defence will likely still be used in courts


the "honest opinion" defence

- 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