Defamation & Libel 2.0

As part of recapping the lawful aspect of my youth, i.e. two years ago, we had a lecture discussing defamation and what it means for us (journalists).

For my point of view, which is to say a broadcast angle of the news. What you broadcast about someone is defamatory if it tends to (the wording is important here as, should a defamation case come to court, the level of proof only has to show that a statement 'tends' to do be defamatory. There's no "beyond all reasonable doubt" here):

• Lower them in the estimation of right-thinking people -This is fairly self explanatory, if a normal person hears what you've said and thinks: "I now think less of the person who is subject of that report" then you have defamed the subject;

• Cause the person to be shunned or avoided - Once again, this should need little explanation. If someone is not generally shunned or avoided, and following what you broadcast, they become so, you have defamed them;

• Disparage the person in his/her business, trade, office, or profession - This would happen if you were to broadcast that your subject was terrible at their job, or was an unreliable person;

And finally,

•  Expose the person to hatred, ridicule, or contempt -Let's use an extreme example here and say you've called someone a paedophile. I think it's safe to assume that will expose them to plenty of hatred, not to mention contempt and ridicule.

With film, it can be easy to accidentally defame a person or company if you are not careful with your shots. Often, juxtaposition of a shot, with another, or coupled with a voice over, can end up with what can be (and often will be) perceived as defamation.

Let's say you are making a package about dodgy retailers (or some such thing), and you have cut-aways of a high street with shop signs visible. You have potentially defamed these shops by implying that they are dodgy retailers (or some such thing).

An obvious thing to help prevent accidental defamation is to ensure that, when filming, you film the correct building that your story concerns; as well as this make sure you name the correct people involved in your story. in many cases, you can't have too much identification i.e: Name, age, occupation, where they live; above all: a picture! (just make sure it's definitely the right person!) This is especially true of court reporting, you don't want to risk someone else having the same name/ job etc as the person you're reporting on.

An important point to make about defamation is that you cannot defame someone who is dead. I'm not saying go nuts with it, but it is allowed. As a current example, look at what's going on with Jimmy Savile at the moment. Technically, calling him a paedophile now, is not defaming him as he's dead. Doing it when he was alive, would have been.

Now defamation is hugely important in libel. For something to be libellous, it must meet three criteria:

• It must have been published
• It must have been defamatory
• The subject must have been identified

Luckily, us journalists have defences against libel suits, the main of these being:

• Justification - It's true and you can prove it.
• Fair comment - Honestly held opinion based upon facts or privileged material
• Privilege - Protection for journalists in court reporting.

Other defences include:

• Bane and antidote - This is when the defamatory statement etc. is somehow shown not to be defamatory with context. The precedent for this was set in 1835 when a judge said that if in one part of a publication something disreputable to the claimant was stated that was removed by the conclusion, 'the bane and antidote must be taken together'.
•  Apologies and clarifications - These must usually be made contemporaneously.
• Reynold's Defence - A series of points journalists must follow, to obtain common law qualified privilege. A full description of the points can be found here (scroll about halfway down to find them.

 I have written blog posts in previous years describing some of the defences and cases supporting them here:

• Privilege - A Defence Against Popes and Pussycats
• The Simple Sword of Truth, and the Trusty Barge Pole of Cowardice
   

The easiest way to avoid being sued is to go through a checklist in your head. Perhaps most obviously: 

• Who am I writing about, and are they very litigious?
• Is what I'm writing about potentially defamatory? - If so, ask your superiors (essentially pass the buck) or lawyers. You should always be scared of being defamatory, unless your defence is absolutely airtight.

Some fairly recent defamation cases worth at least googling include: Chris Jefferies and his treatment by newspapers during the Joanna Yates murder investigation; Charlotte Church; and Sussex tutor Luke Cooper.

Stay tuned for more posts on media law in coming weeks.