Flashcards in Media Law: 16 Defences and remedies for defamation Deck (84):
legal defences against defamation
- 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
- 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...
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?)
- 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?
- NO IT DOES NOT
- 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?
- 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
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