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. 

The Simple Sword of Truth, and the Trusty Barge Pole of Cowardice

Defamation is perhaps one of the most worrying things a journalist can confront. Usually encountered while court reporting (but by no means limited to), a claim of defamation means an accuser thinks that something published concerning them has damaged their reputation and lowered right-minded peoples opinion of them. In many cases, a defamatory statement will expose the subject to hatred, ridicule and contempt from their peers, often resulting in Libel action. You can get an idea of how journalists view being presented with a defamation charge, in that there is actually a name for the feeling you get when considering even a genuine, unbiased story on a person or group that is particularly litigious: The 'Chilling Effect'. For example, the Church of Scientology has filed dozens upon dozens (perhaps even hundreds) of lawsuits, funded by their enormous wealth and influence. Here is a policy letter written by L. Ron Hubbard (the founder of the Church of Scientology), distributed in early 1966:

This is correct procedure:

1. Spot who is attacking us.
2. Start investigating them promptly for FELONIES or worse using own professionals, not outside agencies.
3. Double curve our reply by saying we welcome an investigation of them.
4. Start feeding lurid, blood sex crime actual evidence on the attackers to the press.

Don't ever tamely submit to an investigation of us. Make it rough, rough on attackers all the way.

Against such a code of conduct, I don't blame people for getting the willies.

Fear not however, we aren't doomed to the dole queue just yet. Journalists are awarded certain defences, provided that they follow a certain code of conduct. The first of these defences is Justification, or to put it simply, Truth. If the reporter can present evidence showing that the published matter in question is in fact true, then this provides complete protection against any libel action. A very famous example of justification at work was that of Conservative cabinet minister Jonathon Aitken who filed Libel actions against The Guardian for reporting that his bill for the Ritz hotel in Paris was paid for by an Arab associate, in direct breach of ministerial guidelines. He even resigned from his post stating that he would:
 "Fight to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of British fair play". 
After four years of investigations and court trials, evidence was found that proved that Aitken had been lying all along, and that he had been willing to have his daughter lie under oath to protect him, saying that it was his wife Lolicia Aitken who had paid for his hotel stay, when it was in fact found that she had been in Switzerland at the time and it would have been impossible for her to have done so. Aitken was faced with legal costs of £2 million and an 18 month prison sentence (of which he served 7) for committing perjury and perverting the course of justice.

While the Aitken case is a fantastic example of justification at its best, they aren't all quite as interesting. Another defence afforded to journalists is Privilege. This gives protection to publish potentially damaging material in accordance with the principle that justice must be seen to be done. As journalist are the eyes and ears of the public, they are allowed to report things that could be defamatory, as long as it is considered in the public interest to do so. Reports may only hold privilege if they are fair and accurate, otherwise you may well find out just how deep the rabbit-hole goes.

The last main defence of defamation is known as Fair Comment. This is essentially exactly what it says on the tin. Such a comment may be published as long as it is: the honestly held opinion of the writer; recognisable as opinion (not presented as fact); based on provably true facts; linked to theprovably true facts, in the same publishing (unless so well known as to make it unnecessary); on a subject that is a matter of public interest. On the plus side it doesn't have to be 'fair' (I know, the name confused me too), a judge/ jury does not have to agree with it to rule it fair comment, as long as it is honest opinion - in other words, not malicious - then we're home free.

The 'Bane and Antidote' defense was also discussed, which is where One would write something negative, followed by something appealing to kiss it all better. However, as far as I can make out, this is very dodgy ground to be used as a defence for defamation, so I would personally not touch it with the preverbial barge pole, could it be avoided.