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
types of defamation
- libel (permanently recorded form)
- slander (transient form)
forms libel can take
- broadcast (Broadcasting Act 1990)
- films and videos
- 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
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
- 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?
- 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 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)
- 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