Defamation and Libel
Defamation cases can cost thousands, even millions of pounds and despite years in the industry, a momentary lapses can quickly end a career.
What is defamation?
If what you write about someone 'tend' to';
1. lower them in the estimation of right thinking people
2. causes them to shunned or avoided.
3. disparages them in business, trade or profession.
4. exposes them to hatred, ridicule or contempt.
The UK bar is very low and so is easier for claimants to succeed and win their case.
Artemus Jones case
It is also possible to defame someone you did not know exists. The classic English case was that of Artemus Jones. A journalist wrote an article about a factual event but invented a character he called "Artemus Jones", to add human interest. The journalist probably chose that name because it was so unusual. Unfortunately, there was someone with this name in real life, a London lawyer, and he sued the paper for a lot of money claiming that his friends had made fun of him believing that the article had been about him.
There is always this danger, so a journalist should always be extra careful in inventing fictional names or pseudonyms for people who do not want their real name used.
Defamation via pictures
This is a common danger in TV. The careless use of background shots with voice over can be defamatory. People or companies must not be identifiable in certain contexts e.g. child abuse, fraud.
Be careful with 'imprecise shots' e.g. a photo of two front doors and two people, (one suspect and one policeman) and it is not made clear which person is which.
Reputation and Meaning
A person or companies reputation is precious. Especially if you are in the public eye, have money or both!
The meaning is interpreted by the 'reasonable man'.
Both inferences and innuendos that can be made, may be hazardous and the whole context must be assessed.
Michael Foot (meaning case)
In 1995, The Sunday Times carried a story which alleged that Michael Foot, the former labour leader, had been an agent of influence for the KGB, working under the code-name of agent Boot. A former KGB man, Oleg Gordievski, had provided most of the material for the article. Michael Foot was deeply hurt by the allegations and he issued a writ for libel.
The Sunday Times admitted that it had named Mr Foot as an unwitting agent of influence, but the newspaper said that it honestly believed that it was not accusing Mr Foot of being a KGB spy. To most readers though, or in legal terms, to the reasonable man or woman, the article’s meaning was that Mr Foot was a spy who had supplied information to the KGB. Michael Foot won the case and was awarded substantial damages.
Lord Gowrie (Innuendo case)
Even if a statement seems innocuous on the surface, it could be interpreted as defamatory to those with special knowledge.
In 1986, Lord Gowrie, a former Cabinet Minister sued The Star newspaper over an article which implied that he took drugs.
He had resigned the previous year from his post as Minister for the Arts, and The Star newspaper, under the headline 'A lordly price to pay', stated: "There's been much excited chatter as to why dashing poetry-scribbling Minister Lord Gowrie left the Cabinet so suddenly. What expensive habits can he not support on an income of £33,000 ? I'm sure Gowrie himself would snort with disgust at suggestions that he was born with a silver spoon round his neck."
Lord Gowrie's counsel argued that: "The reference to Lord Gowrie's expensive habits, the suggestion that he was unable to support those habits on his ministerial salary, the use of the word 'snort' and the reference to a 'silver spoon around his neck' all bore the plain implication, to all the many familiar with the relevant terminology, that Lord Gowrie was in the habit of taking illegal drugs, in particular cocaine, and had resigned from the Cabinet because his ministerial salary was insufficient to finance the habit."
Lord Gowrie won 'substantial damages'.
Libel Defences
1. Justification - A statement is true and can be proven to be so.
2. Fair Comment- An honestly held opinion based upon facts of privileged material, that are in the public interest.
3. Absolute privilege - concerns court reporting.
4. Qualified privilege - concerns police questioning.
5. Baine and antidote refers to the defamation being removed by the context of the publication.
6. Apologies and clarifications
7. The Reynolds’s defence- material must be;
(i) In the public interest
(ii) A product of 'responsible journalism'
Gordon Ramsay has been quoted as saying 'This restaurant has seen more action than Paris Hilton's knickers. This is unlikely to make it to court as it can be proven that Paris Hilton has had lots of boyfriends and there is strong evidence to prove this.
Reynolds vs Sunday Times Newspaper Ltd
The case provided the Reynolds defence, which can be raised where it is clear that the journalist had a duty to publish an allegation even if it turns out be wrong. In adjudicating on an attempted Reynolds defence a court will investigate the conduct of the journalist and the content of the publication. Albert Reynolds had been the Taioseach (Prime Minister) of Ireland, until a political crisis in 1994. The Times had published an article in Ireland to the effect that Reynolds had misled the Irish Parliament; this article was then published in mainland UK. However, the UK version omitted an explanation that Reynolds had given for the events, which had been printed in the original article. Reynolds brought an action for defamation. The defences of justification and fair comment were unavailable, given the factual nature of the article. Times Newspapers Ltd appealed that the defence of qualified privilege be considered; the Court of Appeal denied this. The appeal to the House of Lords was therefore on the matter of whether the defence qualified privilege be extended to cover the mass media.
Lord Nicholls, speaking for the majority, upheld Lord Bingham's judgement, adding to it a list of ten criteria against which attempts to use the Reynolds defence should be judged:Elton John has ended his libel claim against the Guardian newspaper over an article that poked fun at his celebrity fundraising.In December a high court judge struck out his claim for libel, agreeing with the Guardian that the article did not carry the factual meanings that John had claimed.
The nature of the information, and the extent to which the subject-matter is a matter of public concern.
2.The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
The steps taken to verify the information.
3.The status of the information. The allegation may have already been the subject of an investigation which commands respect.
4.The urgency of the matter. News is often a perishable commodity.
5.Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
6.Whether the article contained the gist of the plaintiff's side of the story.
The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
7.The circumstances of the publication, including the timing.
Five law lords unanimously overturned high court and appeal court libel judgments against the Wall Street Journal Europe in December 2003 and quashed damages awards totalling £40,000 to a Saudi billionaire businessman, Mohammed Jameel, and his companies over an article which said the Saudi Arabian authorities were monitoring the bank accounts of prominent Saudis for evidence of supporting terrorism.
The judges ruled that the lower courts had been interpreting an earlier protective ruling in a case brought by the former Irish taoiseach Albert Reynolds too restrictively and set out the principles that should apply in future libel cases.
They held that where the topic of a media investigation was of public importance, relevant allegations that could not subsequently be proved true should not attract libel damages if they had been published responsibly. In deciding whether the publication was handled responsibly, judges with "leisure and hindsight" should not second-guess editorial decisions made in busy newsrooms.
Lawyers said the ruling considerably reduced the "chilling effect" libel law had long exerted on freedom of speech. Lord Hoffmann, delivering the leading judgment, said the question in each case was whether the media outlet "behaved fairly and responsibly in gathering and publishing the information".
If the journalists did behave fairly and responsibly and the information was of public importance, the fact that it contained relevant but defamatory allegations against prominent people would not permit them to win libel damages.
Lady Hale, one of the law lords, said: "We need more such serious journalism in this country and defamation law should encourage rather than discourage it."
Oryx and the BBC case
'The Oryx Group has won a first court victory in its libel case against the BBC over an allegation that it funded Osama bin Laden and the al Qaeda network, with the amount of damages to be paid yet to be decided by the court.
The BBC broadcast a report called 'The diamonds that pay for bin Laden's terror', and then issued an apology on November 19 2001. "The BBC never had a shred of evidence for its broadcast. The broadcast injured Oryx. Our reputation suffered and we sustained enormous financial damage," explains Geoffrey White, Deputy Managing member.'
No defences exist when;
1. You have not checked your facts.
2. You have not 'referred up'.
3. You have not put yourself in the shoes of the person or the company who you write about.
4. You have got carried away by a 'spicy story'.
5. You are not bothered to wait for a lawyer's opinion.
Recognise Risk
Who am I writing about and could they sue?
The Elton John and Marina Hyde case
'Sir John's law firm, Carter-Ruck, today decided not to challenge last week's court of appeal decision to refuse to grant leave to appeal an earlier high court judgment in the Guardian's favour.
The singer had been seeking an apology and damages after he was the subject of the A Peek at the Diary Of … column written by Marina Hyde for the Weekend magazine supplement of the Saturday Guardian on 5 July last year.
John had accused Hyde of defamation and using a "gratuitously offensive, nasty and snide tone" in the piece.
The singer claimed that the article poked fun at his celebrity fundraising, suggested his commitment to the Elton John Aids Foundation was insincere, and that his annual fundraising White Tie and Tiara Ball was used to meet celebrities and for self-promotion rather than raising money for his charity.
Mr Justice Tugendhat also refused John permission to appeal and ordered him to pay costs.
Carter-Ruck then took the case to the court of appeal. Last week that court rejected Carter-Ruck's written application seeking leave to appeal, giving the law firm one week to launch a further challenge, which expired today.'
Is what I'm writing potentially defamatory?
Do I have a defence?Lawyers never mind being asked and it is crucial to avoid being involved in a libel case.
Subsequently, Publication + Identification + Defamation = Libel!
Scenario 1
When does a routine story become defamatory?As a reporter you visit a block of flats where the tenants say they are being ripped off by a social housing company.
They claim the company has failed to fix the heating, the drains are blocked and the roof is leaking.
They plan to stop paying rent from next week.
Several families say their children have got ill as rooms are dripping with condensation, and they cannot keep bedrooms warm at night.
You look around the flats, talk to tenants and the leader of the 'Tenants' Association, Alan Lord.
Alan Lord tells you: 'It's a disgrace. Forward Housing is doing nothing to fix the problems. They are just making money, out of us, lining their pockets at the council's expense.'
One of the residents, Joan Stocks, says: 'They keep making promises they will fix things, but nothing happens. There's definitely something wrong with this company. I reckon the boss of their's John Smith is raking off all the cash and hiding it from the council - how else could he be driving that Bentley of his?'
Another resident Jim Peters, says: 'Yes that John Smith riding around in his flash car makes me sick. That contract he signed with the council has been a disaster for us. I bet if his drains were blocked and his boiler packed up he wouldn't put up with it for very long.;
Tenants Association leader added: 'If you ask me most of the problems seem to be with the sub-contractor they've been using - Peerless Plumbing. Totally incompetent and haven't a clue what they are doing. I wasn't at all surprised to see that Hampshire Trading Standards took them to court last week for making a total mess of an old lady's house and then overcharging her for the privilege.
Here, there are more than one party involved;
1. Forward Housing
2. John Smith
3. Peerless Plumbing
'Lining their pockets at the council's expense' needs to be run by the lawyer and omitted if required.
The quote by Joan Stocks needs to be taken out, as this is defamatory; 'John Smith is raking off all the cash'.
Jim Peter's quote; 'The contract he signed with the council has been a disaster for us' is protected by the defences of justification and fair comment.
The statement made by the Tenant's Association has to be proved to be true. Although, it is unlikely Trading Standards will sue as their reputation is currently so low.
So, it needs to be checked whether the council are doing anything to help and if the connotations/context of the piece are that of the 'reasonable man.'
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