Media Law

Week 3
Further Reading

Defamation and Libel

A claimant has to show the court three things when suing for libel:

1. the publication is defamatory
2. it may be reasonably understood to refer to him/her, i.e. 'identification';
3. it has been published to a third person.

In terms of identification, the test in defamation law of whether the published matter identified the person suing is whether it would reasonably lead people acquainted with him/her to believe that he/she was the person referred to. In 1826, a judge said 'It is not necessary that all the world should understand the libel; it is sufficient if those who know the claimant can make out that he is the person meant'. This is still the law today. During the 1980s and the 1990s the Police Federation fought 95 libel actions , winning all of them and recovering £1,567,000 in damages. In one case, the Burton Mail paid £17,500 compensation plus legal costs to a woman police constable who featured anonymously in a story following a complaint about an arrest. It was argued that the story's details identified her.

Statute law
 
The Defamation Act 1996

S.1 allows newsagents and booksellers the defence of innocent dissemination, whereby they say they are merely the conduit for the passage of the words complained of and thus not responsible for them. However, this defence was not available to others such as distributors and broadcasters. The 1996 act extended this and now applies to the author, editor or publisher who took reasonable care in relation to its publication and who did not know and had no reason to believe that whatever part he/she had in the publication caused or contributed to the publication of a defamatory statement. This is also available to internet service providers, which provide as 'host' a service to allow individuals and companies to publish their own content on the their websites.

When deciding this, the court shall consider;
1. the extent of his/her responsibility for the content of the statment or the decision to publish it;
2. the nature or circumstances of the publication and
3. the previous conduct or character of the author, editor or publisher.

S.5 of the Act states that, in a defamation case where two or more 'charges' have been published against the claimant, 'a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the [claimant's] reputation, regarding the truth of the remaining charges.'

A defence is provided known as 'offer to make amends.' A defendant must make a written offer to make a suitable correction in a reasonable manner, and to pay the claimant suitable damages It can only be used the defendant did not know and had no reason to believe that the statement complained of referred to the claimant and was false and defamatory of him. The claimant has the 'onus' of showing that the publication was not innocent. Bearing this is mind, the defendant will have a defence, if the offer of amends is rejected.

Reduced the limitation period from three years to one year. This defence whereby proceedings were not started within the limitation period constitutes a complete defence, unless there is a new publication of offending material. Reporters should date their notebooks and store them carefully in case they are required to produce them in court.

The Civil Evidence Act 1995

The act makes hearsay evidence acceptable in court subject to certain conditions. For example, where the statement is contained or comprised in a document, it needs to be signed in order to make it admissable.

The Obscene Publications Act 1959

This in a large way replaces the common law offence of libel law, and introduced a defence that the publication was 'for the public good...in the interests of science, literature, art or learning, or of other objects of public concern.'


Case Law




Newstead v London Express Newspapers Ltd [1940]

The Daily Express had reported that 'Harold Newstead, a 30 - year - old Camberwell man', had been sent to prison for nine months for bigamy. The paper was successfully sued by another Harold Newstead, who worked in Camberwell, and who claimed that the account had been understood to refer to him. The claimant claimed that if the words were true of another person, which they were, it was the duty of the paper to give a precise and detailed description of that person, but the paper had 'recklessly struck out' the occupation and address of the person convicted.

Riches and others v News Group Newspapers Ltd [1986]

A case in 1986 concerned a reference published by a newspaper to an allegation that detectives at Banbury CID had raped a woman. The newspaper did not name those allegedly involved, and was successfully sued for reference to this group, which comprised only of 12 detectives.

Dow Jones and Co Inc v Yousef Abdul Latif Jameel [2005]

In 2005 the Court of Appeal held that it would be an abuse of process (resulting in the claim being rejected in court) for a claimant to bring a libel action over material on the internet unless 'substantial publication' in England could be shown. The court made reference to an article from a US - based internet service which was only downloaded by five people in England, three of whom were in the claimant's camp (including its lawyer), and the other two were unknown. The court did not consider that the article required provision of a fair trial and public hearing in relation to an alleged infringement of rights when it was not considered to be 'real or substantial.

Amoudi v Brisard [2006]

It will not be assumed by the court that the internet publication is necessarily regarded as substantial publication.

Crookes v Wikimedia Foundation Inc, [2008]

A Canadian court ruled that hyperlinks to articles containing defamatory material did not amount in that individual case, to substantial publication of defamatory statements by the publisher of the article containing the hyperlinks.

Birmingham six case

In 1993 and 1994 newspapers paid damages to defendants in the Birmingham six case, who had been sentenced to prison for terrorism but were later cleared on appeal. Police officers were accused of fabricating evidence, but prosecution of those officers involved, were never brought to court and so were abandoned. After this, the Sunday Telegraph reported one of the three officers, as referring to the Birmingham six incident as: 'In our eyes, their guilt is beyond doubt'. An article was published by the Sun newspaper based upon the Sunday Telegraph's interviews. It later carried an apology and was reported to have paid £1 million in damages.

Duke of Brunswick case

This 1849 case concerned the Duke who sued a newspaper for defamation after sending his butler to buy back a copy. These days, he would be able to call up the archive version on the internet. It is normally a defence to a libel action that it was not published until one more year after the publication. However, the law takes the view that every time an article in an archive is accessed this amounts to a new publication and can give rise to a new action. The Court of Appeal in 2001 confirmed that the rule in this case was still the law and did apply to the internet.

Jim Carr case

In 2006, a businessman, won a second libel suit form the Sunday Telegraph over the exact same story, s the newspaper had mistakenly left the piece accessible through its website. Already receiving a 12,000 payout plus an apology, he later received a further £5,000 in damages as a result of the internet based story.

The MORI and BBC case

In 1999, the BBC was sued by the research firm MORI and the head of its company. Bob Worcester, for defamatory remarks made by the controversial politician Sir James Goldsmith, during an interview that went out live on the radio. The BBC said that it had a defence under section 1 - but did it take 'reasonable care'? It was argued that the BBC should have known that he was likely to say something which sparked controversy, perhaps even defamatory, and therefore should of used a 'delay button' at least. the case was settled before the jury could reach a verdict.
I believe that the BBC should of completed sufficient research, if unaware of their subject's interview style and personality in order to prevent this situation arising. Therefore, if this had of reached court, I believe the jury would of ordered the BBC to pay damages to the MORI.

Godfrey v Demon Internet Ltd [2001]

The Internet service provider was successfully sued for matter on a newsgroup it hosted after the matter was left there for about ten days, after a complaint was made. The claim was for the damages for those ten days.

Gillian Taylforth case

The Sun newspaper successfully used the defence of justification when sued in 1994 by Gillian Taylforth , the television actress, and her boyfriend after it published a front - page story headlined 'TV Kathy's 'sex romp' on A1' saying the couple had indulged in oral sex in a parked car. The Sun received confirmation from the press office that her boyfriend had been cautioned for indecency, and when sued the paper 'joined' the police in the defence, with the result that the main defence witness was in fact the officer who claimed he saw the event. The jury found for the paper 10-2.

Jeffrey Archer case

In 1987, the politician and novelist was £500,000 against the Star newspaper, which said that he had paid a prostitute for sexual intercourse. He also sued the News of the World for a story headlined 'Tory boss Archer pays off vice girl'. It was true that Archer had paid £2,000 to the prostitute to go abroad in order to avoid scandal but he claimed the article implied that he had had a sexual relationship with her. The paper argued that it had never intended such an allegation, but it had to pay Archer £50,000 damages in an agreed settlement. In 2001, he was found guilty of perjury and perverting the course of justice in the libel action and jailed for four years. He ended up repaying the damages to the two papers, and their costs.

Lewis v Daily Telegraph, and Lewis v Associated Newspapers Ltd [1964]

When considering reports linking a claimant with criminal conduct, the courts recognise three levels of meaning:

1. the report may mean the person is guilty of the criminal offence (a level 1 meaning);
2. or he/she is reasonably suspected of the offence (level 2);
3. or there are grounds for an investigation (level 3)

These were set out by Lord Devlin in a case in which two national newspapers said the City of London fraud squad was inquiring into the affairs of a company. The statement was true, but the claimant said the words meant (by implication) that he and the company were guilty of fraud, or at least were suspected of fraud, and heavy damages were initially awarded against the newspapers. On appeal, the House of Lords ruled that the words were not capable of meaning that fraud had been committed, but they were capable of meaning that the claimants were suspected and that whether they had this meaning or not should be left to a jury.

Shah v Standard Chartered Bank [1999]

The reason it is defamatory to say a person is reasonably suspected of an offence is that it implies conduct on the person's part that justified that suspicion being made. So, if you are to succeed in a plea of justification you must show conduct on the person's part giving rise to the suspicion. It is no use saying other people told you about their suspicions.

Elaine Chase v News Group Newspapers Ltd [2002]

In 2003 the Sun newspaper had to pay £100,000 damages to a nurse for a story headlined 'Nurse is probed over 18 deaths'. The police had been investigating the circumstances of the deaths of a number of terminally ill children, who the defendant had treated but they concluded (after the Sun's story) that there were no grounds to suspect her of an offence. The newspaper attempted to show that there were reasonable grounds for suspicion, but the Court of Appeal said the paper was pretty much solely relying on the fact that allegations were made against the nurse to the police and the hospital trust. The newspaper only focused upon an allegation made after publication, and the court said that could not be taken into consideration.

Lowe v Associated Newspapers [2006]

In terms of fair comment, the judge gave an example of a publication of opinion which is protected by the defence of fair comment. 'Such conduct is disgraceful', is merely an expression of your opinion , your comment on the person's conduct. If on the other hand, you said 'he has been guilty of disgraceful conduct and do not state what that conduct was, this is an allegation of fact for which there is no defence, other than justification or privilege. The rule was relaxed in this case where Mr Justice Eady said a defendant was not confined to relying in support of the comment on facts actually stated or alluded to in the article itself.

Silkin v Beaverbrook Newspapers [1958]

A defendant must satisfy the jury that the comment upon established facts represents a view that a person could honestly hold on those facts. Lord Diplock stated 'people are entitled to hold and express strong views on mattes of public interest, provided they are honestly held. They may be views which some or all of you think are exaggerated, obstinate, or prejudiced.'

Tse Wai Chun Paul v Albert Cheng, Court of Final Appeal, Hong Kong [2001]

Lord Nicholls explained that when fair comment was being considered as a defence, malice covered a situation where a defendant 'put forward as his view something which, in truth, was not his view. It was purely a pretence. The law does not protect such statements.'

Branson v Bower [2001]

Bower, commenting on the attempt by Branson to run the national lottery, said: 'Sceptics will inevitably whisper that Branson's motive is self - glorification.' Bower claimed, when sued, that this was fair comment but Branson argued that it was factual allegation ( that his bid to get the national lottery stemmed from a questionable intention) and that this was untrue. Lord Justice Latham in the Court of Appeal said that comment was 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation. He agreed with the lower courts in that Bower was merely expressing opinions about Branson's motives.

Convery v The Irish News Ltd [2007]

The fair comment defence suffered a setback when a libel jury in Northern Ireland awarded £25,000 damages to the owner of a restaurant called Goodfellas over an unpleasant review in the Irish News. The award was quashed on appeal in 2008, with the Northern Ireland Chief Justice , Sir Brian Kerr, saying:
'Only if the jury has a clear understanding of what is capable of constituting comment, can it address the thorny issue of whether the facts on which comment is based are capable of justifying the comment made.

Sir Elton John v Guardian News and Media Ltd [2008]

Sir Elton John sued the Guardian for libel over a spoof article written by Marina Hyde under the headline 'A peek at the diary of...Sir Elton John'- a regular feature in the paper's Weekend section satirising the activities of celebrities. John claimed the article made his commitments to the Elton John Aids Foundation appear insincere and that once the costs of his White Tie and Tiara fundraising  ball were met only a small proportion of the funds raised would go to good causes. The Guardian's defence was that the words were merely comment and could not have the meaning claimed by John. Mr Justice Tugendhat accepted the Guardian's argument that the words were a form of teasing and if they were really trying to unearth a story about the ball's costs, it would not of used humour to do this.

Cassidy v Daily Mirror Newspapers Ltd [1929]

Cassidy was at the races and was photographed with a woman he described as his fiance.This was how she was described in the caption to the photograph used in the newspaper. Cassidy, however, was already married, and his wife sued on the ground that people who knew her would assume she had been 'living in sin.'

Muhamed Veliu v Xhevdet Mazrekaj and Skender Bucpapaj [2006]

A journalist here won damages over an article that accused him of being involved in bomb attacks in London the previous year. He sued both the publisher of the newspaper, that had used the story and its editor. The publisher made an unqualified offer of amends, but the editor 'did nothing'. The judge held both the publisher and the editor were jointly liable for the damages. A 30% discount was applied to the publishers, setting their maximum liability to £120,000. He said the claimant should receive £175,000 and made the editor liable for the whole amount.

Reynolds v Sunday Times Newspapers [2000]

In its defence, the Sunday Times said that, in keeping with Article 10 of the ECHR, the public interest in political issues and the conduct of elected politicians should be protected by qualified privilege at common law. In the first instance, the Sunday Times lost the case, but in 1998 in Reynolds v Times Newspapers [1998] Lord Bingham in the Court of Appeal said: 'As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty. Reynolds defence was introduced. When the case reached the House of Lords, though Times Newspapers lost, the court confirmed the principle that the media do have a duty and the Reynolds defence was introduced.

Lord Nicholls set out a list of circumstances to consider when when looking at the defence;

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject matter is a matter of public concern.
3. 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.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter, News is often a perishable commodity.
7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.
8. Whether the article contained the gist of the claimant's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
Sticking purely to these ten points was considered to narrow by the House of Lords and so the whole context of the case needs to be looked at.

Jameel v Wall Street Journal Europe [2006]

Lord Bingham in the House of Lords said that the matter published had to be of public interest and the story had to be the product of 'responsible journalism'.

Leeds Weekly News case

The existence of the reporter's notebook was crucial in the successful defence. Being able to produce good, accurate notes is important when trying to show the 'steps taken to verify this information (point 4) when using the Reynold's defence.

GKR Karate Ltd v Yorkshire Post Newspapers Ltd [2001]

A judge found for the Leeds Weekly News, a free newspaper, which was being sued for an article warning readers against the conduct of door salesman selling karate club membership. It appeared on the front page under the headline, 'Give em the chop' and a sub-head, 'Doorstep salesmen flog dodgy karate lessons'. The fundamental question was one of public interest. Was it in the public interest for the newspaper to publish information as it did? The judge said he found the reporter to be an honest, sensible, and responsible person on whose evidence he could rely on and who was naturally concerned by the dangers, particularly to children, resulting from this organisation.

Al - Fagih v HH Saudi Research and Marketing (UK) Ltd [2001]

The Court of Appeal ruled that a newspaper was entitled to rely upon the Reynolds defence where it has reported, in a completely objective way, an allegation made in the course of a political dispute by one of the opponents. The defence was not lost merely because the newspaper had not verified the allegation. At trial, the judge rejected the defence of qualified privilege. The journalist had made no attempt to verify the truth of the allegations (point 4). However, on the facts, the failure to do this did not outweigh the public interest in publication.

Christopher Roberts and Barry Roberts v Gerry Gable, Steve Silver and Searchlight Magazine [2006]

Here, it was indicated that the defence of 'neutral reportage' could be used even when. by contrast to the above case, the journal and the staff were clearly not neutral. The test is not the stance the journalists take, but the way the story is reported. National party members failed to win their bid to sue against the anti-fascist magazine Searchlight, its editor and a journalist for libel when a judge upheld a qualified privilege defence based on the doctrine of reportage. A report made in the BNP's bulletin that the two claimants had threatened to 'kneecap, torture and kill' BNP members and their families. The defendants claimed they had a defence of qualified privilege because they were simply reporting the allegations. without adopting or endorsing them. 

Prince Radu of Hohenzollern v Housten and Another [2008]

An appeal was rejected  to overturn Mr Justice Eady's decision to strike out a Reynold's defence to an action by the Prince,