Defamation and Libel Law lecture

It is vital that every journalist is aware of the dangers of Defamation and Libel.  Journalists therefore, need to be always on guard when producing their work. No journalist would ever be criticised for being too cautious as it is essential that all grounds are covered and no risks are taken. Correct facts are the best defence when it comes to Defamation and Libel cases.

If Journalists fail to check the facts and produces an article/package which is incorrect and legally damaging to that person’s reputation, then the journalist should expect to be taken to court and sued for the damaging report.

A recent libel case that has been in the Media is Andrew Mitchell (former Chief Whip) vs. The Sun newspaper. Mitchell is suing The Sun after they first printed the ‘Plebgate’ allegations which Mitchell denies.

Toby Rowland, the officer on duty in Downing Street at the time of the altercation, insists Mitchell called him a ‘pleb’. Mitchell accused him of lying as part of his own libel appeal against the Sun. This then resulted in Rowland saying that he wished to sue Mitchell for calling him a ‘liar’.

Another example of a famous Libel case is the Lord Mcalpine v BBC. On the 2^nd November 2012 BBC’s ‘Newsnight’ was broadcast which falsely linked an unnamed "senior Conservative" politician to sex abuse claims. This unnamed politician was implied to be Lord Mcalpine. ‘Jigsaw Identification’ led to the public discovering it was potentially Mcalpine they were referring to. The BBC subsequently apologised and paid £185,000 in damages.

Many people took to twitter to talk about the allegations made by ‘Newsnight’, including Sally Bercow. Mrs. Bercow had initially denied that her tweet was defamatory, but High Court judge Mr. Justice Tugendhat agreed that it pointed "the finger of blame".  Bercow, the wife of the Commons speaker, agreed to pay former Tory peer Lord McAlpine £15,000 in damages for the tweet she posted.

The basic formula for Libel is:

Publication + Defamation + Identification = Libel

A statement is defamatory if what you write or broadcast about someone/a company:

·         Damages their reputation

·         If it tends to lower them in estimation of righting thinking people

·         Causes them to be shunned or avoided

·         Disparages them in their business trade or profession

·         Expose them to hatred, ridicule or contempt

Defamation can also be caused by the use of pictures. The most common danger in TV is Juxtaposition Libel. For example, showing an entirely innocent member of the public walking through Customs, juxtaposed with a piece of commentary or sync about the illegal importation of drugs may well give the false impression that the person shown is a drug smuggler.

People or companies must not be identifiable in certain contexts e.g. Child abuse and fraud. Need to be wary of imprecise shots.

Libel Defences

1.      Statement must cause ‘serious harm’

2.      Truth/ justification

3.      Honest opinion (fair comment)

4.      Public Interest (Reynolds Defence-can be used as a defence where it is clear that the journalist had a duty to publish an allegation (in the public’s interest) even if it turns out to be incorrect.

A new Defamation Act which was passed in 2013 explains that a statement is not defamatory unless its publication has caused serious harm to the reputation of the person mentioned. The Ministry of Justice said the act would provide "clearer, better protection for people publicly expressing opinions". You cannot sue for libel if the statement written about them is the truth. The Act also includes other safety measures such as the right to publish an article if it is a matter of public interest, and if it is an honest opinion, based upon facts. At present articles are being published continuously, the new Act includes a defence for operators of websites. This means that they will be protected if they have proof that it was not the operator who posted the statement on the website. A single publication rule prevents repeated claims against a publisher about the same material. 

Journalists have absolute privilege when they are reporting on court cases; this means what they are reporting on is a fair and accurate report of proceedings in court. If it was heard in court, and no reporting restrictions apply they can report it, providing it is published on the first available publication. However, this privilege does not apply if the proceedings that are held in private, for example, a couple weeks ago in Scotland there was a private hearing of Rosdeep Kular charged with the murder of her 3-year-old son.

The basic requirements for the qualified privilege defence, such as police quotes or press releases is that it is fair, accurate, without malice and in the public interest. This means the public must benefit from learning about this matter.

Any defences that you intend to use in court will automatically be weakened if you are showing malice in your publication. You have to prove that you are disinterested in the matter you are reporting. 

You also have no defence if you haven’t checked the facts previous to publishing your story. Always seek advice from your News Editor. Put yourself in the shoes of the person you are writing/ speaking about, would you be offended? If in doubt ask for a lawyer’s opinion on the facts of a story. Recognise the risk.