Libel is the result of the combination of publication, identification and defamation. It is libel if what you write about a person, company or organsition lowers them in the estimation of right thinking people, causes them to be shunned or avoided, disparages them in their business trade or profession or exposes them to hatred or ridicule.
A person's reputation is valuable and if you are famous or holding a public office, then even more so. Some believe that their reputation is worth a lot of money. Defaming a person can damage their reputation and a claimant simply has to prove that the they might have been damaged, not that they have. The meaning of a libellous statement is tested by the understanding of it by a reasonable man or woman.
Hulton Co v Jones
In the case of Hulton Co v Jones, it is stated: 'In an action for libel it is no defence to show that the defendant did not intend to defame the plaintiff, if reasonable people would think the language to be defamatory of the plaintiff'. The defendants, owners and publisher of a newspaper, published an article about a character, that they believed to be fictitious, named Artemus Jones. The name was in fact that of a real man who sued Hulton Co and whose friends believed and testified that this article referred to him.
In the case of Hulton Co v Jones, it is stated: 'In an action for libel it is no defence to show that the defendant did not intend to defame the plaintiff, if reasonable people would think the language to be defamatory of the plaintiff'. The defendants, owners and publisher of a newspaper, published an article about a character, that they believed to be fictitious, named Artemus Jones. The name was in fact that of a real man who sued Hulton Co and whose friends believed and testified that this article referred to him.
Newspapers and broadcast corporations face libel action regularly. There are defences that can be used to protect journalists, but in some cases these news organisations get sued for huge amounts of money.
Rahamin v Channel 4 News/ITN
In 2001 Rahamin won £1 million in damages after Channel 4 News/ITN made allegations against him accusing him of being no good at his job. Mr Rahamin maintained that a news reported aired on the Channel 4 7 o'clock news broadcast was defamatory against his professional and personal reputation. Before the report Mr Rahamin was held high in the opinion of his colleagues. their families and his patients. In 1992 he was appointed as a Consultant
In 2001 Rahamin won £1 million in damages after Channel 4 News/ITN made allegations against him accusing him of being no good at his job. Mr Rahamin maintained that a news reported aired on the Channel 4 7 o'clock news broadcast was defamatory against his professional and personal reputation. Before the report Mr Rahamin was held high in the opinion of his colleagues. their families and his patients. In 1992 he was appointed as a Consultant Channel 4 made the following allegations against Mr Rahamin:
1. He was probably responsible for the death or serious injury of many of his patients including two that died during their operations.
2. He was not competent to practice as a consultant thoracic surgeon, he was seriously under qualified and inadequately trained.
3. He had faked his qualifications and employment history to obtain his post as a Consultant.
4. He had falsely descibed himself as an FRCS (Fellow of the Royal College of Surgeons) in a letter to a local GP.
5. He had not alerted his employers to the fact that he was not able to operate safely due to injuries sustained from a road accident.
6. Because of these matters, the GMC should have struck off Mr Rahamin.
During the proceedings Channel 4 News/ITN made no attempt to dispute that Mr Rahamin was fully competent to practice as a surgeon.
During the proceedings Channel 4 News/ITN made no attempt to dispute that Mr Rahamin was fully competent to practice as a surgeon.
'No reputation to lose'
There are some people out there that are so badly thought of that it is not possible to damage their reputation further, and therefore can't be libelled. Harold Shipman is an example of someone who can't be libelled. If he were still alive, there is nothing you could say that could damage his professional reputation anymore.
This is also true of the dead. A dead person does not have a reputation to lose and offending family members does not factor in libel.
Hazards Journalists Face
The Internet
Qualified privilege - Applies to where the published information is considered important to public interest. These include things such as reports of court cases, of public meetings, of council meetings, and of police statements.
Reynolds defence
Inference -
Its is possible for a statement to hold more than one meaning, and for someone that is not familiar or learned on the subject may interpret differently or read between the lines. This is also tested by means of a reasonable man, therefore making it essential for journalists to write words which only carry the meaning they were have. Juxtaposition can also cause inference, which is a big problem for both journalists and subeditors. This is also true of footage and when editing it is essential to ensure that images juxtaposed with a voice track do not infer a libellous meaning.
Innuedoes-
Innuendo is a Latin word which means 'to nod to', where a statement points towards a meaning which only people with specialist knowledge would understand.
In 1980's a newspaper reported on former Cabinet Minister, Lord Gowrie's, 'expensive habits' and his snorting and the 'silver spoon around his neck' when he suddenly left the Cabinet. These words implied that he had a drug habit, and when he sued he received 'substantial damages'.
The Internet
Brunswick v Harmer
In 1849, the case of Brunswick v Harmer ruled that each individual publication of libel gives rise to a separate action. For the internet this could mean a separate action for each individual download (a fresh publication). In March 2009 the Justice Ministry started investigating this issue, and is due to lead to a consultation paper. This ruling causes a chilling effect on the freedom of expression and could be detrimental to the world of online media.
In 1848, Brunswick sent his manservant to collect a copy of the Weekly Dispatch, published 17 years previously, in which he believed he had been defamed, and also got a copy from Weekly Dispatch's London publisher. Back then, you were given 6 years to take action, rather than the one year that is given today. Despite this, it was ruled that these copies of the Weekly Dispatch constituted a fresh publication, and therefore gave rise to action. Brunswick was awarded £500.
Defamation in pictures
Defamation in pictures is a common danger in television. The biggest danger is the careless use of background shots in combination with voice over. The incorrect pairing of the two can lead to juxtaposition defamation where a person or company is unintentionally defamed. To an effort to prevent this, people and companies must not be identifiable (unless involved in the story) and imprecise shots should not be used.
In 1849, the case of Brunswick v Harmer ruled that each individual publication of libel gives rise to a separate action. For the internet this could mean a separate action for each individual download (a fresh publication). In March 2009 the Justice Ministry started investigating this issue, and is due to lead to a consultation paper. This ruling causes a chilling effect on the freedom of expression and could be detrimental to the world of online media.
In 1848, Brunswick sent his manservant to collect a copy of the Weekly Dispatch, published 17 years previously, in which he believed he had been defamed, and also got a copy from Weekly Dispatch's London publisher. Back then, you were given 6 years to take action, rather than the one year that is given today. Despite this, it was ruled that these copies of the Weekly Dispatch constituted a fresh publication, and therefore gave rise to action. Brunswick was awarded £500.
Defamation in pictures
Defamation in pictures is a common danger in television. The biggest danger is the careless use of background shots in combination with voice over. The incorrect pairing of the two can lead to juxtaposition defamation where a person or company is unintentionally defamed. To an effort to prevent this, people and companies must not be identifiable (unless involved in the story) and imprecise shots should not be used.
Control of costs in defamation cases
After a report published by the Government in 2009, the Justice Minister, Bridget Prentice, aid that the effect of excessive costs could sometimes lead to defendants settling for unwarranted claims. Mandatory cost capping, limited hourly rates and requiring the courts to look at proportionality of costs are measures which have been suggested to tackle excessive costs in defamation cases.
Libel Defences
It would seem that journalist face a lot of danger, however there are libel defences that safeguard the freedom of expression.
Justification -
The defence of justification depends on statements of face which are published being true and provable in a court of law. The claimant doesn't have to prove that the published words were true; it is the responsibility of the defendant (the publisher) to prove that the words were true. The standard of proof required is equal to that of a civil case - 'on the balance of probability', rather than the standard in a criminal case - 'beyond all reasonable doubt'.
Fair comment -
The defence of fair comment protects published opinion. It has to be honestly held opinion based upon facts, or privileged material, and the subject commented on must be in the matter of public interest.
Privilege -
Absolute privilege - A journalist only benefits from the defence of absolute privilege in court reporting. It is required for absolute privilege that what is published is:
- a fair and accurate report of judicial proceedings held in the public within the United Kingdom, published contemporaneously.
Qualified privilege - Applies to where the published information is considered important to public interest. These include things such as reports of court cases, of public meetings, of council meetings, and of police statements.
Reynolds defence
Reynolds v Times Newspaper
The Times published a defamatory article about Albert Reynolds, the Prime Minister of Ireland (1992-1994). Reynolds sued, claiming that the article was untrue, however the Times said that what they had published was in the public interest, and was a product of reasonable journalism. It is this case which the Reynolds defence is named after.
For the Reynolds defence to be raised, the materials must be:
- In the public interest
- Product of responsible journalism
- In the public interest
- Product of responsible journalism
A journalist does not have access to any defence when they:
A journalist should always be aware of risk when reporting and writing. In order the recognise risk, you should think about who you are writing about, whether or not they can sue, whether what your writing is defamatory and whether or not any defences could be raised.
- haven't checked your facts
- have not 'referred up' - haven't flagged it up to anyone
- haven't put yourself in the shoes of the person or the company you are writing about
- have got carried away by a spicy story
- haven't bothered to wait for lawyer's opinion
A journalist should always be aware of risk when reporting and writing. In order the recognise risk, you should think about who you are writing about, whether or not they can sue, whether what your writing is defamatory and whether or not any defences could be raised.
No comments:
Post a Comment