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Defamation | Law | Mcnaes chapter 19,20 and 21 pages 253 – 298

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Defamation Act 2013

Before 2013, Juries tried most defamation cases.

Defamation ACT 2013 Cases heard by judge alone.

A Defamatory statements made in written form is libel – in spoken form it is slander.

  • Written – Libel
  • Spoken – Slander
  • Broadcast on radio or TV – Libel
  • Public performance in a play – slander

WHAT IS CLASSED AS DEFAMATION?

Defamation ACT 2013 section 1 – a statement is not defamatory unless it’s publication has caused, or is likely to cause,”serious harm” to a claimant’s reputation.

Harm to the reputation of “a body that trades for profit” is not “serious harm” unless it has caused, or is likely to cause, the body, “serious financial loss”.

These can include defamation or inference so care must be taken. The test is what a “reasonable person” would take the words to mean.

Right thinking members of society is the key phrase.

There are libel dangers from juxtaposition of published matter which can create inference and also from a lax captioning and use of photos/footage.

Inference – Can read between the lines.

Innuendos – Might seem innocuous but defamatory in the eyes of people with special knowledge.

Lord Gowrie and the Daily Star 1986 – words and meaning of a story made it clear to those in the know that he was a drug addict.

LIBEL CLAIMANTS

A libel claimant must prove three things: D.I.P.

  1. That the statement is defamatory.
  2. That they have been identified (it may reasonably be understood to refer to him/her).
  3. That it has been published by a third person.

The test of identification – the risk of libeling an individual by reference to a group of people. This could also allow the whole group to claim.

Defamation claimants must prove that the published material identifies them.

Ommitting the name might not necessarily be a protection.

Test – would the published statement reasonably lead to acquainted people you have to believe you are the person being refereed to.

It is sufficient if those who know the claimant can make out he is the person meant. – Bourke v Warren (1826)

WRONG PHOTOS OR CAPTION

Wrong photo could identify soemone even if not named

In 2015, Sunday Mirror paid out £100.000 plus costs.

Falsely identified a man in a photograph as the rapist of lorworth hoare.

www.theguardian.com

Newstead v London Express Newspapers (1940)

Daily Express reported Harold Newstead

DEFAMATION OF A GROUP

If a defamatory statement refers to someone being a member of a group, but includes no other identifying detail of that person, all members of the group can sue.

Riches and others v News Group Newspapers 1985.

Newspaper published allegation that detectives at Banbury CID had raped a woman.

Newspaper did not name those allegedly involved

all 12 detectives successfully sued.

FIGHTING DEFAMATION

Why:

Uncertain how the judge will interpret what is written

Difficult to prove

Huge damages

Massive legal costs paid by the loser

It might be better to settle out of court

WHAT ELSE

the person who is claiming:

Does not have to prove the statement is false.

The journalist has to prove it is true.

They do not have to prove intention.

It is not enough for the journalist to say they didn’t mean to damage your reputation.

REPETITION RULE

Repetition rule – each repetition is a false liable.

1993 and 1994 papers paid damages to defendants in the Birmingham 6 case.

jailed for terrorism offences but later cleared on appeal.

Officers accused of fabricating evidence

SINGLE PUBLICATION RULE

Section 8 of the new act adds in the “single publication” rule for online.

Prior to this every fresh publication websites was seen as a new libel.

The period for bringing a defamation action starts from the date of the first publication, even if ‘substantially the same’ material is subsequently published.

DEFAMATION DEFENCES

MCNAES Chapter 21 page 275 – 298

There are FOUR main defense

ABSOLUTE PRIVILEGE

Absolute Privilege – This applies to court reports. BUT reports must be fair, accurate and contemporaneous.

Applies to media reports such as court cases, including inquests, and hearings of tribunals which are courts, heard n public in the UK as well as public proceedings.

MP’s get it – they can say whatever they want in the House of Commons without fear of being sued for defamation, but it does not extend to media reports.

Requirements:

Only time journalists enjoy absolute privilege is when they are reporting court cases or certain tribunals.

What is published is a fair and accurate report of judicial proceedings held in public within the UK.

And published contemporaneously.

Defamation ACT 2013 extended this protection to proceedings outside the UK, international courts tribunal established by Security Council of the United Nations.

Contemporaneous – as soon as practicable.

Outbursts from the public gallery – privilege may not protect an outburst from the gallery.

But if shouted by someone who has given evidence as a witness, privilege must protect the statement.

QUALIFIED PRIVILEGE

Must Be:

Fair & accurate.

Without malice.

In the public interest.

Otherwise it won’t be covered. So must ensure proper attribution of quotes and the inclusion of any denials made in meetings.

Defamation ACT 2013 section 7 covers media reports of court proceedings where coverage is non-contemporaneous; media coverage of matter published by governments; media reports of some tribunals/committees eg, Fitness to practice panels of the general media council.

It Covers:

Covers reports of the proceedings, in public, of:

Local enquiries.

Public meetings.

Any documents handed out at a press conference.

Press conferences about matters of public interest.

Statements issued by police.

UK council or council committee or sub-committee meetings.

The defamation of a public meeting – See Mcnae’s p.288

TRUTH

The 2013 ACT section 2 sets out the defence of “truth” (was justification) – this defence requires the defendant to a show that the statement complained of is “substantially true”

This is a difficult defence to prove because the burden of proof is on the publisher and the proof has to be of a high standard journalist must always consider what they are writing.

The difficulty in proving it plus the financial implications of losing a libel case & (damages) leads to media organisations being reluctant to defend libel actions to opt for out of court settlements.

Defence requires the published material can be can be proved to be substantially true.

Applies to statements of fact.

Standard or proof – must be proved true on balance of probabilities.

Do not have to prove the truth of every statement – just the most damaging.

THE FACTS….?

Daily Telegraph was sued by tennis player Robert Dee.

It was reported he was ranked the worst professional tennis player in the world after 54 defeats in a row.

Paper pleaded justification (truth) and fair comment (honest opinion).

Paper won – Mr Justice said the facts of the story were sufficient to justify and defamatory meaning.

HONEST OPINION

Honest Opinion The “honest opinion” defence of the 2013 ACT section 3. It protects published opinion rather than the factual statement.

The requirements of this defence are that the statement is an honestly held opinion on a matter of public interest.

Requirements…

Published comment must be honestly held opinion of the person making it.

*Defence will fail if a claimant can show the person expressing the opinion did not hold that opinion.

It must be recognisable to the reader as opinion rather than a factual allegation.

It must be based on provably true fact or privileged opinion.

It must be explicitly or implicitly indicate the fact or information on which it is based

All these requirements must be met.

Honest opinion defence protects expressions of opinion in reviews of:

Performances

Book

Holidays

Restaurants

Film reviews

 

 

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