Media Law: 16 Defences and remedies for defamation Flashcards Preview

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Flashcards in Media Law: 16 Defences and remedies for defamation Deck (84):

legal defences against defamation

- consent
- justification
- fair comment
- absolute privilege
- qualified privilege
- offer of amends
- innocent dissemination


what is not a defence (and where can it be used)?

- public interest
- as factor in: fair comment, qualified privilege, Reynolds


how does consent work?

- if someone consents to you publishing the story (and everything in it) they can't sue


what doesn't count as consent?

- simply consenting to being interviewed
- a refusal to either deny or confirm the allegation


what is the alternative name for consent?

- 'leave and licence'


what is 'justification'?

- being able to prove the statement is true
- needs to be provable IN COURT with EVIDENCE


what is NOT 'justification'

- the statement merely being morally (and not factually) right


DEF: proof that something is more likely to be true than not

- 'balance of probabilities'
- easier than 'beyond reasonable doubt' in criminal cases


DEF: not every single aspect of statement needs to be true, just the defamatory bits

- 'substantially true'


legislation for things being 'substantially true'

- s5 Defamation Act 1952 ('the section 5 defence')


DEF: the main part of a liable

- 'sting' (e.g. the fact a man stabbed someone, not when it happened)


as well as outright facts, what else needs proving for 'justification' to work? what does this often lead to?

- truth behind any implications and innuendo
- defendant and claimant disagreeing on perceived meaning of innuendos


what piece of law/ethics is on your side when using sources to try and justify yourself?

- rules about journalists not having to reveal sources


besides the original evidence you used for the story, what else is allowed in justification?

- new evidence (e.g. Jonathan Aitken)
- other evidence not in original story that helps prove truth


how can courts make claimants play ball? and what are often the results?

- disclosure order: hand over all documents that prove truth
- many claimants give up claim after disclosure ordered


TIPS: successful 'justification' defence

- ensure you have solid evidence BEFORE publication
- use tape recorder (or DATE notes in sequence)
- with shorthand/illegible writing: transcribe ASAP on computer
- keep notes for long time (at least a year), esp for INTERNET
- always use more than one source
- consider whether sources will speak in court for you AND whether a jury would trust them
- for dodgy allegations get a written statement signed (means court can issue SUBPOENA)
- don't risk publishing without enough evidence
- always check when lifting stories from other media
- remember not all stories require the same amount of care


when should you use 'fair comment' defence?

- (like justification, but for) opinions and comment


what do you need to prove for fair comment defence?

- words were comment/opinion, NOT statement of fact
- matter of public interest
- any facts comment is based on is true OR subject to privilege
- made without malice (i.e. honestly)


what does 'fair comment' NOT have to be?

- FAIR (i.e. jury or normal person might not think it)
- jury has to believe it's honest opinion of the writer


comment vs fact

- NO hard and fast rules
- "I think" etc helps
- some opinions (e.g. "He's a liar") are facts in law
- ambiguous facts should make clear what opinions (elsewhere in article) they are referring to


how does 'fair comment' relate to readers' letters

- usually have to be consider separate to the article they're complaining about
- ECtHR case (1999) now suggests previous articles should be considered


what does public interest cover in 'fair comment'?

- "such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to other"
- includes: public officials/authorities, art, literature, court cases...


what has been one of the most high-profile omissions from public interest?

- private lives of public individuals


when can private lives be public interest?

- role models
- voluntarily put themselves into public domain (e.g. run campaigns, etc.)


when in fair comment do the facts not have to be true?

- if only some facts are true, the true ones should lead you to draw the same opinion as expressed in article
- if facts were said in privileged circumstances (e.g. Parliament)


where does this differ regarding facts in 'justification'?

- only use facts known at time of publication (because they formed your opinion)


DEF: legal term 'malice'

- said without honestly believing it's true


how does personal spite factor in?

- 'malice' used to include conventional sense of word until case in 2001
- jury just has to believe your opinion is genuine, no matter how spiteful


can a publisher rely on fair comment?

- yes, so long as it's the WRITER'S genuine opinion it doesn't matter what the publisher thinks


can 'fair comment' be used to cover reviews?

- yes, so long as facts the opinions are based upon are true


what's the theory behind absolute privilege?

- there are times when free speech is more important than protection of reputation


what is covered by absolute privilege in Parliament?

- anything MPs say in Parliament
- Hansard
- any parliamentary reports (e.g. White Papers)


which courts are covered by absolute privilege?

- any English court
- European Court of Justice (+ auxiliaries)
- European Court of Human Rights
- any international criminal tribunal est'd by UNSC or international agreement with UK


but court reports ALWAYS need to be...

- fair
- accurate
- privileged


how do you keep court reports 'fair'?

- don't miss out chunks of evidence
- if previous allegations rebutted, print the rebuttal!
- BUT single days might only discuss on side of case, reporting just what is said is fine


pitfalls in court reporting to watch out for

- don't state allegations as fact
- make sure you get the names right
- verdicts: avoid errors AND insinuating verdict was wrong
- get details of offence correct
- get sentence correct


how do you ensure a court report is contemporaneous?

- publish it at the next available opportunity


how can internet articles be contemporaneous

- they can't, and lose absolute privilege
- but they keep qualified privilege if the first post was contemporaneous


what events in court aren't covered by absolute privilege?

- public shouting from gallery
- anything said on way into court
- documents used but not read out in court


difference: absolute and qualified privilege

- qualified privilege ONLY covers statements made without malice


where does qualified privilege apply?

- set list of official/public proceedings/documents/decisions
- judicial proceedings in UK
- proceedings of Parliament
- when someone defending themselves from previous attack on character/conduct
- people making/receiving statements have legal/social/moral duty to do so
- responsible reporting of public interest


which of those is statutory qualified privilege? what does that mean?

- set list of official/public proceedings/documents/decisions
- outlined in Defamation Act 1996


what is the difference between the two groups of statutory qualified privilege?

- the second has slightly more restrictions


what falls into the first, unrestricted, group?

- accurate reports of any legislature worldwide
- reports from any government


what are the restrictions on the second group?

- still covered by qualified privilege
- UNLESS claimant finds good reason against defamation


what is in second group?

- public meetings
- meetings of public companies
- meetings of certain organisations


what are the rules when someone asks for a contradiction or explanation?

- got to be published in 'suitable manner' (meaning reflects original article)
- similar prominence in newspaper to original article
- don't be defamatory to original accuser in your contradiction!


rules about official information (qualified privilege)

- covers 'matter' issued for information of public
- mostly in document form
- NOT statements from senior NHS, etc.
- BUT includes police statements issued to public


rules about reporting public proceedings/documents

- only things said during proceedings covered
- with documents: only words of documents covered


which public meetings are covered?

- pretty much anything journalists might want to go to
- subsequent press releases also covered


rules about reporting 'findings'

- ONLY findings themselves, NOT methods leading to them


what if report is a mix of qualified privilege and other comments/opinion?

- qualified privilege still stands IF the rest is fair and accurate


rules about responses to attacks on character

- response to a defamatory statement can be met by another defamatory statement (QPriv)
- media can report this with QPriv
- retaliatory statement has to be relevant to initial attack


original Reynolds case

- Reynolds v Times Newspapers (1999)
- Albert Reynolds (former Taoiseach) claimed Times said he misled Irish Parliament
- Times said their duty to report matters of serious public interest
- Law Lords agreed public interest important, but so was politicians' protection from allegations
- new form of QPriv protecting fair/responsible reports into matters of public interest
- confirmed in later case: Loutchansky v Times Newspapers


criteria when applying Reynolds defence

- seriousness of allegations (has to be serious enough)
- nature of info / extent of public concern
- source of info (closeness/grudge/paid)
- steps journos took to check info
- status of info (i.e. does it hail from authority?)
- urgency
- claimant given fair right to response
- did article include claimant's side (at least generally)?
- tone of article
- circumstances of publication (inc. timing)


how binding are the Reynolds criteria?

- just guidelines, NOT hoops to jump through
- other factors may play part
- factors weighed differently depending on the case
- NOT all factors have to be met


does the Reynolds defence age well?

- false allegations OK at the time because publisher doesn't know truth
- if left online after truth comes out, these are now just plain false


DEF: the newest upgrade to Reynolds

- 'neutral reporting'
- reporting defamatory allegations with no hint whether they're true or not


criteria for neutral reporting

- public interest
- no need to take steps to ensure info accurate
- story (as a whole) must report the fact allegations were made, NOT the truth in them
- objective reporting
- doesn't adopt allegations themselves, or stop being fair
- responsible journalism (see Reynolds criteria)
- seriousness of allegation, and public interest important
- doesn't have to be public figure / prominent person
- urgency of story: public interest would decline, etc.


TIPS: key to successful Reynolds defence

- give subject right to reply
- consider WHOLE story (headline, editorial slant, etc.)


how is malice different in QPriv than fair comment? why?

- includes things written out of spite
- QPriv exists to let journos do their duty (i.e. accurately inform public)


when does 'offer of amends' apply?

- when publisher has made a mistake, e.g....
- did not know the words were defamatory
- did not know the words referred to the claimant


what must be done in 'offer of amends'

- offer to print apology
- offer to pay compensation
- make offer before any other defences used


what happens if claimant doesn't take offer?

- defendant can still use it in court, but can't use any other defences
- if chooses other defence and loses, the fact an offer of amends occurred might still reduce damages


DEF: courts expect publishers apologies to be genuine and for them to act as such

- 'good conduct'


printing an apology outside rules of 'offer of amends'

- can be a defence if claimant accepts and agrees not to sue
- known as 'accord and satisfaction' waiver
- best to get written acceptance for future
- even if not accepted, still might reduce damages


pitfalls when making apologies

- apologies can defame original source (as a liar)
- ensure apology does not repeat libel OR its meaning
- damaging admissions: claimant's case may be strengthened by apology
- corrections to court reports do NOT carry same privilege as contemporaneous court report
- insufficient prominence of apologies
- watch your reputation: publisher's apology may damage you


DEF: defence protecting those less closely involved with story

- 'innocent dissemination' defence


who qualifies for innocent dissemination defence?

- NOT author, editor or publisher
- took reasonable care in relation to publication
- did not know they were party to a defamatory statement


innocent dissemination includes which parts of publishing chain?

- printers
- distributors
- sellers
- internet service providers


another name for innocent dissemination in TV

- defence of live broadcast


measures that should be taken for successful live broadcast defence

- consider reputation, personality or views of interviewees
- briefly discuss/interview before broadcast to explain dangerous areas
- take care when reading email or texts from viewers/listeners
- AFTER defamatory remark, move on quickly ad NEVER refer back


what is the time limit on defamation claims?

- usually 1 year after publication
- claimant can ask for extension of limitation period
- every view on internet counts as publication


two main types of remedy for defamation

- damages
- injunction


types of damages awarded

- compensatory damages (v. difficult to accurate cost up damage to reputation, judges tell jury of previous cases)
- aggravated damages (where media behaved particularly badly)
- exemplary damages (v. badly behaved)
- nominal damages (rights infringed, but no damage done)
- contemptuous damages (been defamation, but claimant shouldn't have brought it)


which damages are on top of compensatory damages

- aggravating OR exemplary


max. damages for nominal damages

- usually £20


max. damages for contemptuous damages

- 1p (lowest coin in circulation)


who can overturn damages?

- Court of Appeal (usually to reduce)


what do injunctions allow?

- story not to be republished in future


DEF: injunction banning story pre-publication

- interim injunction


what needs to be considered before ordering an interim injunction?

- all in HRA
- court should be satisfied that claimant will probably win
- importance of freedom of expression
- extent to which the info is already/about to be available
- public interest
- any relevant privacy code


what risk does claimant have with interim injunction?

- if they lose subsequent trial, they may have to pay costs


how has the HRA affected defamation?

- free speech is now fundamental right (protection of reputation is not)
- Defamation Act 2013 favours media more