Defamation -

Please note: This is a brief summary and discussion of the law and does not in any way constitute legal advice.

UPDATED OCTOBER 2009

REPUTATION

Every adult has a reputation in the eyes of people who know him or her or - if famous or holding a public office - the general public. Part of a person's reputation will be objectIive facts (positive or negative) about him - such as academic qualifications or criminal convictions, his religion, marital status, etc. These facts will go together with more subjective opinions that people who have met the person will have.

Some people believe their good reputation is worth a lot of money. The directors of a firm of stockbrokers recently demanded £240 million to compensate them for loss of potential business caused by an article in the Financial Times. Note potential – in libel people do not have to prove that they have been damaged, only that they might be damaged.

Dr Joe Rahamin of Devon in 2001 won £1 million in damages after allegations on channel four news/ ITN that he was no good at his job. Please blog on this case and similar cases.

Britney Spears - a woman who appears in plainly (soft) pornographic videos – a couple of years ago tried to sue a US celebrity magazine (in the US courts) for $10 million dollars after a slight on her sexual behaviour (of all things). The case failed. Please blog on this case and similar cases.

Other celebrities make a habit out of suing - repeated claimants include tubby foghorned voiced piano wizzard Elton John and creepy bespectacled television personality Paul McKenna. Mr McKenna sues on every republication of the allegation that he hurt a member of an audience by hypnotising him (so there’s the danger of copying stories out of newspaper clipping - previous publication is no defence, and a libel becomes active the minute it is published or re-published.)

Heather Mills is another one. She collected £50,000 from the Sunday Mirror in 2002. Now she's reportedly claiming a new world record of £50 million for damage to her reputation inflicted during reporting of her divorce from notorious pothead frog-lover Sir Paul McCartney, the arse-achingly boring billionaire scouce producer of sickly and brainless supermarket/hotel lift muzak rubbish. (Blog on why the foregoing comments are probably legally protected).

They're all at it.

Other people may have ‘no reputation to lose’. In other words they are so badly thought of that nothing you could now say about them would make anyone think any worse of them. In case of the mass murdering doctor Harold Shipman (if he were alive), for example, there is nothing you could say about him in respect of his care for patients, that would make his reputation any worse.

Likewise there is nothing you can say about a dead person (however saintly in life) that will damage their reputation. Corpses have no reputation to lose. Nobody is going to think anything worse of a corpse. Damage to the feelings of relatives are not a factor in libel. There is no third party libel – nobody can sue on behalf of somebody else, dead or alive. But writing something about a dead person (such as the Prophet Muhammad) with intention of causing trouble (especially in the hope or expectation it will cause violence or a riot) is a separate crime (a form of civil disorder crime). It is not however libel. There are few such prosecutions in practice, and they are mainly confined to the prosecution of extremist or 'hate' groups whio seek to cause riots for whatever purposes they may have. It is very difficult to see how you could be prosecuted for incitement to hatred if you obey the basic rules on avoiding malice .

More generally, if you say something about a person which may TEND ro diminish their reputation (or actually does) "in the eyes of right thinking people" then you have “defamed” them - you have taken their “fame” (good reputation) away. This act can be the cause of a civil complaint for compensation, because reputation has a value (like property).

SLANDER

If you defame the person in a non-permanent form (in a conversation for example, or by shouting at them in a ‘road rage’ type incident) then you may have SLANDERED them so long as some third person heard it (at least one, but one is enough) and they may be entitled to compensation. There is no compensation for things said in a private in an argument between two people however.

There are relatively few actions for slander because it is notoriously hard to prove what was actually said if the statement was made in a truly non-permanent way – such as in an argument in a pub. As journalists we don’t need in practice to worry about slander, because what we say as journalists is always in a permanent form – eg in a newspaper or magazine article. Because of recording equipment radio, TV etc now taken as permanent form of publication. In law publication means distribution to just one other person (the third party) or potential distribution (for example on a postcard or maybe even just graffiti written on a wall).

PUBLICATION + DEFAMATION + IDENTIFICATION = LIBEL

If you defame the person in a “permanent form” such as a newspaper or magazine (and including now in legal definitions radio and TV broadcasts and speeches in plays performed in public) and if the person is clearly identified, then you may have LIBELED them.

The internet is a developing area of libel law. Does publication on the net mean it is in permanent form? Yes it does. Worse than that it makes libel international, and everything a person downloads even a single copy, or even loads the page into their browser, that constitute publication in a permanent.

Be aware if you defame people on your blog - eg by calling somebody for example ‘eccentric’ then you may have defamed them (see below - definitions of who is defamed). NB - yachting news case - you as the blogger (or contributor to a char room) have complete liability in law. The ISP or URL or editor of the website mayu also be liable, but perhaps not (case law developing) if they can show they did not edit the remarks posted on a blog or in a chat room.

But chat-rooms are dangerous and many newspapers closed them down after they were held to be the publisher (see below ‘publication’ and who is the publisher. What you may hear referred to as ‘internet libels’ are all about establishing who the publisher. In all other respects libel is just the same on the net as on anything else.

An additional danger with the internet is that libel is international. This is not too bad for UK journalists, because we already have probably the most severe libel laws in the world. But if you are a journalist in India or China or the States where libel laws are not enforced so strongly, then the new danger for you is that you can be sued in the British courts (eg Lennox Lewis - Boxing News case). So basically the internet is having the effect of setting UK libel law as the world standard, because it is the most favourable to the litigant and gives little protection to the journalist/publisher (cf failure of Daily Mirror section 10 appeal against Naomi Campbell costs in a privacy case).

The person who has been libelled may sue the publisher/broadcaster, the author/writer/broadcaster, the distributor and anyone responsible for spreading the defamation.

As a journalist you are normally indemnified by the publisher in practice - so long as you obey absolutely the editor. The editor is defined in law as the person on whom the writ is served. The danger is being thrown to the wolves. Check when you are employed that you have libel indemnity, but it implied in the normal duty of care/ duty of trust relationship between master and servant. Newspaper publishers BBC etc all have insurance, so its bad but not too band if they have to pay up. Freelancers are less secure - solo blogger of course you have no protection at all. You could lose your indemnification if you have disobeyed the editor or acted recklessly. But generally not in interests of the publisher to ‘throw you to the wolves’ - it won’t stop the claimant coming after them as well…

LIBEL IN SUMMARY

The leading London libel lawyer (my lawyer!) David Price says: "In order to bring a defamation claim the person bringing the claim ('the claimant') must prove that the person against whom the claim is brought ('the defendant') has published defamatory material about him or her."

In other words...

Libel requires:

(a) The statement is defamatory

(b) It has been 'published' to a third party (a letter will do, or a posting on the internet)

This last point (identification/ misidentification) is just as important as defamation itself. It is important to identify people correctly - and the danger of miss-identification through error is greater than many people appreciate) - see below.

Dealing with the three points (a), (b) and (c) below in different section of these notes.

PART (a) 'DEFAMATORY'

The law on this topic is ancient, alarmingly wide and not very clearly defined. Libel is the only type of civil case that is normally tried with a jury, and it is up to a jury to decide whether or not the words actually spoken (slander) or published/broadcast (libel) are 'defamatory' or not. Juries becoming less important beause more and more are settle out of court (eg, Sharon Stone cruel to own baby case)

The guidelines for juries are that a statement is defamatory if it merely TENDS to lower their reputation in any (not ALL) of the following ways (there is no need for the complainant to prove that they have lost out in any way, only that it could possibly damage their reputation):

(1) Exposes them to hatred, ridicule or contempt

(2) Causes them to be shunned or avoided

(3) Discredits them in their trade, business or profession

(4) Generally lowers them in the eyes of right-thinking members of society

It follows that very many things said/written by journalists are defamatory, even if they do not sound very rude or serious. Do not concentrate on point one (hatred, ridicule or contempt). Statements that cause people to be widely hated are very clearly defamatory, so you and your editor will feel cautious and are therefore more likely to make sure you have enough JUSTIFICATION to mount a defence (eg Fred Bloggs is a terrorist, etc). The danger lies is writing or broadcasting material which sounds relatively innocuous, but falls foul of the definition of defamation anyway.

Obviously almost all reports of criminal convictions are defamatory on grounds at least of hatred, ridicule or contempt, and certainly (2) shunned and avoided.

Eg - eg you write/broadcast (without their consent) that Fred Blogs once had a serious infectious disease but is better now.

This example is defamatory on (2) shunned and avoided, and there would have to be some justification (or consent from Bloggs) for writing/saying it. The classic definition of shunned and avoided used to be to say or imply that an unmarried woman was not a virgin. Doubtless this is still extraordinarily defamatory in some religious communities (honour killings etc).

The mores of "ordinary right-thinking person" might have changed, but caution is always needed.

The same would apply to homosexuality or adultery or sexual behaviour generally. In this regard the case of Cassandra (of the Daily Mirror) and the gay pop performer Liberace is always worth considering. Most of the detail is in my book Tabloid Nation, but is also available on this site (which appears to be a Liberace fan site or similar) Attitudes may differ across the generations.

The Liberace case is also an interesting example of a "comment" defence that came unstuck - see defences, below. It is ironic that Liberace was in fact gay, and 'came out' as such later, when it was more acceptable in society generally. It may be the case that younger (and I suspect more educated, enlightened people) would not TEND to 'shun and avoid' or 'hate and ridicule' a gay person. But what about 'the man on the Clapham omnibus'? A jury will decide.

The same might true of people using soft drugs, especially marijuana - very widely accepted behaviour amongst students. But a jury might well think that saying somebody took drugs would cause them to be shunned and avoided by 'ordinary' people.

Eg - you write/broadcast by mistake a clearly identified Sheila Bloggs (eg you print broadcast pictures of her) is an accountant, when in fact she is a dentist (3 - trade and profession)

McNae gives the example of Tom Cruise and Nicole Kidman (Express on Sunday magazine, October 1997). The whole case is on line here on a slightly odd-looking anti-Scientology website. Otherwise is a useful (rare) online example of how a libel case is made and set out before the high court.

Be careful - the Scientologists are notoriously litigious.

McNae also needs to be read very carefully re libels arising from ambiguous writing - Stationary Trade News.

There is a defence of "accidental libel" (if you make a correction quickly), but. Civil law is all about measuring the damage done and calculating compensation, even on a sort of 'no blame' basis (civil law is less interested in punishing bad behaviour, more about - who is going to pay to support the damaged person).

McNae’s also deals with innuendo and reporting rumours (innuendo is especially dangerous, because it involves a pre-admission that you knew what you were saying was defamatory and yet there was no proof/justification for saying it - this would cover almost everything produced on the satirical website popbitch and similar 'gossip' - the defence is that this is just a joke, but this can be dangerous) and other hidden. There's a useful BBC site covering the same sort of ground which you can be viewed by clicking here (rumours/'allegedly') and here (Innuendo).

Another danger is juxtaposition, which can result in magazines and newspapers from technical production errors in layout, or in radio and TV by failing to sufficiently break up broadcasts between different items (hence presenters and 'and now for something completely different') - see McNae's and BBC notes/video on juxtaposition errors.

DEFAMATION IS NOT THE SAME AS ‘LIES’ (‘FALSEHOOD’)

Falsehood: If there is MALICE (ie deliberate telling of lies) then in rare cases there can be an action for malicious falsehood - this is a crime. If you commit malicious falsehood you can be prosecuted by the police, as well as having a civil action for compensation.

There is also the crime of injurious falsehood (where you have made an honest mistake - though you may have been careless or reckless). This mainly applies to business reporting where, for example, you might quote the wrong price for goods or get the specification of the product wrong. Also known as ‘slander of goods’. There’s an obligation to careful with facts, even when you are working (as always) without malice. Journalism is a form of writing with consequences.

Malicious falsehood is like deliberately driving over somebody on a zebra crossing with intent to kill them (a very serious crime)

Injurious falsehood is like knocking somebody over on a zebra crossing by accident (a pretty serious crime, and definitely a driving ban).

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Falsehood is not necessarily defamatory; and defamatory remarks are very often true.

So it may be false, but not defamatory to say that person X likes to eat cheese sandwiches. They may actually loath cheese sandwiches. But it hard to think that they will loose their reputation because people now think this about them (unless they are chairman of the World League for the Promotion of Cheese Eating) in which case they are defamed by the innuendo that they are hypocrites. An accusation of hypocrisy is certainly defamatory.

Equally it may be true and defamatory to say that X is a convicted murderer. But there ids a defence - justification (‘it is true and I can prove it’).

IMPORTANT: Just because something is ‘true’ does not mean it is not defamatory. The point is that you will have a good defence/justification for saying/writing it. In fact it is the best justification of all - “IT IS TRUE AND WE CAN PROVE IT” (note the second clause in that sentence is more important than the first).

[But - see rehabilitation of offenders act 1974 in McNae's and elsewhere - after a specified period of time, depending on the offence - it is no longer in the public interest to mention some convictions after certain specified periods] The 1974 act is separate legislation. It is not part of libel law as such - but it prevents you from mentioning a convict after a specified period of time, depending on the seriousness of the crime.

(b) Publication (including 'internet libel')

This is publication in a book newspaper or magazine in the ordinary sense of the word, but it also means broadcasting on radio or TV or posting (the argument being that the existence of video and tape recorders means that broadcasts now have a permanent form) on the Internet. Anything that makes the defamatory (see above) statement available to a third person counts as defamation - certainly writing it down in an e-mail and sending it, or putting it in a letter and sending it. David Price points out that even putting a waxwork of a claimant in the Chamber of Horrors constituted "publication". It does not matter if publication occurs to one, just a few or millions of people though - possibly - that could be taken into account in calculating the size of damages due to a complainant.

The spread of the Internet has made the concept of 'publishing' and 'who is the publisher' more complicated and has introduced new dangers.

Case law is developing that each time a web page is loaded into a browser that constitutes 'publication' the important case is Don King vs. Lennox Lewis. It appears to establish that an article published in one country can constitute libel in another (the European parliament is trying to outlaw this in the EU, and make all libel claims national within the EU). In fact libel has always been international (an America, or Greek or anybody else could sue in London for an article about them in an American or Greek magazine, so long as just one copy was circulating in London. In practical terms this is less dangerous for British journalists (and publishers) than it might seem.

UK libel law is weighted more to the complainant than in any other major country (notably much more so than in the USA) so if an article is "safe" in London; it is probably safe throughout the world. The main danger is for journalists/publishers outside the UK who might find themselves summoned to the High Court in London to face demands for compensation if their website published in say America (King/Lewis) or China or India or wherever is available to web users in the UK.

Postings on a websitre on a letters page or a chatroom - BBC online very keen on this - may be free from liability after the Yachting News case (see cases) - where judges said that a defamatory remark made by a person not connected with the URL/ISP publisher was not the responsibility of the publishers, so long as they took it down the moment they were told about.

Also it is important that ‘citizen journalism’; type material is not edited. If you edit the emails before publishing them you assume total responsibility for the content (the same goes for letters in newspapers and vox pops on radio and TV).

Simple mis-identification/ positive identification - "John Smith" problem - All persons called John Smith are defamed if one person called John Smith is defamed. Thus John Smith, 41, of Canal Street Scunthorpe, an unemployed postman, was accused today of (something defamatory) - otherwise all John Smiths will complain and might be able to sue.

Ashley Cole - no direct identification, but jigsaw ID from context and form gossip. If was sufficient for Cole to be able to say ‘everyone thinks its me’ - and no wonder when 50,000 Manchester United fans were chanting about it every time he kicked the ball.

'Corporate Identification'

McLibel case – longest running in legal history. Issue was they made allegations against McDonalds, but the company said this reflected on the reputation of senior management of the company, who could sue.

An unincorporated association (such ‘students at Westminster university’) is not an identified person in law and therefore can not sue for libel or anything. The same would go for “The Majorcans” or possibly “Leeds United Supporters” – you can say anything you like about them without defaming anyone.

Groups of people smaller than 40 or so:

The danger comes when an ‘unidentified’ body is small enough for ALL the members to say they are identified. This can happen when you are writing about “officers at police station so-and-so are corrupt” or “doctors at such and such hospital” are drunkards. Even though nobody is named (no apparent identification, therefore no libel) the danger is that ALL the officer and all the doctors will sue.

Banbury Police case - 1993 all 39 officers at Banbury police station sued after a newspaper alleged that ‘some officers’ at the station were corrupt. The officers basically said: “well I work at Banbury station, people now think I am corrupt. You must now prove that I am corrupt”. The answer of “we did not mean you” was no good. The civil law is interested in the damage done, regardless.

Also, similar Stoke Newington Police case – see McNae’s.

TO SUM UP AT THIS POINT

It is libel if:

The statement is :

1. defamatory (even if true)
2. published (even to one other person, or if posted on the net
3. the person is identified (even jigsaw or innuendo)

All three things must be proved by the claimant. But he/she does not have to show that actual damage has been caused (a company may have to following the recent Wall Street Journal case)

LIBEL DEFENCES

Although you are likely to defame people fairly frequently as a journalist just by reporting what people do (for example it could be defamatory in a simple sports report to straightforwardly say that a footballer missed an easy goal-scoring opportunity). The point is that many types of libels (as in this example) are safe because there are strong defences available to the journalist and publisher. Sometimes these defences are so strong that there is no practical chance of an action for libel. Best of all is…

1. Justification: it is a complete defence if the statement is true, and you can prove it with witnesses who would, at the end of the day, be prepared to appear in court, because you must not only believe it to true, you must be able to prove it. The onus is on the journalist: “It is true, and we can prove it”.

1. Fair comment (based on fact): Because of the principle of freedom of speech (now greatly strengthened by the Human Rights Act) journalists have a lot scope to say hurtful or controversial things about people, so long as they make it absolutely clear that this is COMMENT and not fact. The word ‘fair’ is misleading. It means ‘honest opinion’ of the journalist, not that it is a generally balanced or moderate opinion. It is essential to separate fact and comment at all times. So if you say ‘I don’t like Fred Bloggs because I happen to think he is ugly’ then that should be completely safe as COMMENT, though it might be a good idea to add in some positive comment in the same piece to avoid the accusation of MALICE (see below) and to enjoy the further protection of BANE and ANTIDOTE. If you say “Fred Bloggs is ugly” – this is a grey area. It could be argued (in a negative way) that this is comment (therefore protected) because it just can’t be the case that ‘ugly’ is anything other than an opinion. But sometimes libel actions succeed (eg Julie Burchill vs Steven Berkoff). Journalists must constantly think about what is fact and what is comment.

1. Absolute Privilege and Qualified Privilege

Privilege is a specific protection against an action for defamation given in the first place to judges, lawyers and witnesses in court cases and to MPs in parliament (they have ‘absolute privilege’ – they can say anything they like – even making very serious allegations against people without any evidence and even with malice - without fear of prosecution. Other public bodies, such as local council meetings, university lectures and perhaps even public meetings organised by pressure groups may enjoy a type of privilege as well, if they are acting without malice and are making allegations which are in the public interest to be aired. The law is developing rapidly in this area and there is a separate section of Media Law Web devoted to Qualified Privilege.
David Price on his public domain website writes:

There are two types of privilege. Absolute privilege is an unassailable defence that only applies in certain limited cases. In contrast, the defence of qualified privilege will be lost where the defendant has been malicious. The most common form of qualified privilege is where the defendant has a "legal, moral or social duty or interest" in making the publication and the recipients have a corresponding duty or interest in reading or hearing them. A common example would be an employment reference. More recently the courts have expanded the concepts of duty and interest to protect the media when they publish material on a matter of public interest which they reasonably believe to be true, but which turns out to be false. The ambit of this category of qualified privilege is, at present, uncertain. The second type of qualified privilege is in respect of the publication of reports of various documents and proceedings. These are set out in Schedule 1 of the Defamation Act 1996.
BUT… note this…
Malice: the defences of fair comment and qualified privilege can be defeated if the claimant can prove malice on the part of the publisher. Malice will be constituted if the publisher knew the words were false or was reckless as to their truth or falsity.

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