Defamation

What is defamation?

• Law protects PERSONAL and PROFESSIONAL reputation from UNJUSTIFIED attack

• 2 types:1) Slander (spoken, between 2 people)2) LIBEL (written/any permanent form)

A statement is defamatory if it tends to…

• Expose person to hatred/ridicule/contempt• Cause person to be shunned/avoided• Lower person in estimation of right-

thinking members of society• Disparage person in

business/trade/profession

Defamation Act 2013

• SERIOUS HARMA statement is not defamatory unless it is

likely to cause SERIOUS HARM to REPUTATION of the claimant

Inferences/Innuendos

• Inference WITHOUT special knowledge (secondary meaning

based upon general knowledge of worldly affairs)

• InnuendoWITH special knowledge (“Mr Smith leaving 10

Kingston Road” – innuendo is defamatory if known that 10 Kingston Road is brothel)

What must claimants prove in libel cases?

• Defamation/Identification/Publication

1. Statement is defamatory (serious harm)2. Reasonably understood to refer to him3. Published to 3rd person

Why might media organisations be reluctant to fight libel action?• Uncertain how judge/jury will interpret

meaning• Difficult to prove truth – long, complex

process finding witnesses• Huge damages if trial is lost• May be better to settle (apologise/pay

damages)

Defences (Defamation)

• Truth (justification) • Honest Opinion (fair comment)• Privilege: Absolute/Qualified• Section 1: Innocent dissemination• Accord and satisfaction• Offer of amends• Public interest

Truth (justification)

• Proof that published material ‘substantially true’

• eg – statements of fact, statistics • Inferences and innuendos must be proved

Honest Opinion (fair comment)• Honestly held opinion• Recognisable that it is comment not fact• Based upon true facts• Must indicate facts on which it was based• Subject must be area of public interest

Privilege: Absolute • Court reports• “Fair and accurate report of judicial

proceedings” • Summary of BOTH SIDES/no substantial

inaccuracies• Quotes must be attributed • Published contemporaneously with

proceedings (in newspaper first day after the hearing)

Privilege: Qualified

• Eg - report of public meeting• Fair/accurate• WITHOUT malice • Public interest• Sometimes Part 2: subject to publication of

letter of ‘explanation or contradiction’

Section 1: Innocent dissemination

• Eg - newsagents/booksellers/Internet service providers like Google

• Anyone not the author/editor/publisher• Took reasonable care in publication• Did not know/had no reason to believe that

whatever part he had in publication contributed to the publication of a defamatory statement

Accord and Satisfaction

• Media organisation can use defence of accord and satisfaction to halt a libel case on the ground that the issue has already been disposed of…

• Eg – published correction and apology which claimant agreed/accepted at settlement of the complaint

Offer of amends

• Editor makes written offer to make suitable correction and apology

• Pay claimant damages and legal costs

Other defences

• Claimant has died (dead person cannot be libelled)

• Proceedings not started within 12 months of the material being published

• But journalists should remember every repetition is a new publication (clicks on online archives)