Defamation Defences PDF

Defamation defences 1)​ Honest opinion -​ It protects the expressions honest opinion -​ Cannot use to defend factual allegations -​ This is a defence widely used by all media Requirements of honest opinions -​ Published comment must be the honestly held opinion of the person ma...

Defamation defences 1)​ Honest opinion -​ It protects the expressions honest opinion -​ Cannot use to defend factual allegations -​ This is a defence widely used by all media Requirements of honest opinions -​ Published comment must be the honestly held opinion of the person making it -​ It must be recognisable as opinion -​ It must be based on a provable fact or privileged material -​ It must refer, at least in general terms, to the fact or information on which it is based It cannot: -​ Suggest corruption or dishonour (if it does, it will be considered a fact/allegation) -​ Be motivated by malice -​ It has to be an opinion which an honest person could have held, given the facts at the time -​ It doesn't after which part of the spectrum your views fall on -​ You cannot simply pluck allegations from thin air -​ The supreme court ruled in 2010: “The test for identifying the factual basis must be flexible enough to allow for…a passing reference to the previous night’s celebrity show…may be enough factual basis.” Recognisable as comment -​ The test is that it only needs the reader to understand that the words are comment No corruption or dishonour -​ e.g. lying, cheating, infidelity, criminal activity etc - then honest opinion will fail -​ These statements will be considered factual NOT opinion -​ They will need defending with truth -​ Even if they are expressed as opinion: “I think John smith is a liar” Privilege under the defamation act Two forms 1)​ Absolute privilege 2)​ Qualified Privilege Put simply - we are safe to report defamatory comments made at certain places or in specific documentation so long as we follow the correct criteria Absolute privilege The media has the protection of Absolute Privilege under the defamation act (2013), for reporting court cases provided the reports are: -​ Fair -​ Accurate -​ Of proceedings held in public -​ Published contemporaneously (something happens, exists, or originates at the same time as something else.) Privilege in the courts Privilege at inquests Important point - This is not about reporting “the truth” It is about reporting fairly, accurately, and contemporaneously what was said in open court The allegation/statement might not be true, but that doesn’t matter - we have Absolute privilege to safely report on the proceedings. 1)​ Fair What makes it fair? -​ If guilt/liability is still to be established, you cannot report allegations as fact Statements and quotes must be attributed. Examples include: -​ ‘The jury heard/was told’ -​ ‘Prosecutors claim/allege/say’ -​ ‘The defence argues/says’ -​ ‘The defendant is accused of…’ You must indicate the defendant’s plea – he/she pleaded not guilty/denies the charges If accusations are made and refuted, you have to report both sides. Failure to do so, means you will lose your AP defence How much of a court case must be reported to be fair? If you report allegations, then the safest practice is to publish any rebuttals later on in the trial 1)​ Accurate -​ A small typo or innacracy in unlikely to cause you many legal problems -​ But a significant error, or inaccurate paraphrasing of whats said in a court case, could be costly. -​ For example, if you describe someone as a robber, when they have been convicted of theft 2)​ Of proceedings held in public AND Published contemporaneously  -​ Absolute privilege only applies to the actual court/inquest proceedings -​ The court hearing must be held in public for AP defence to apply -​ Should an editor decide not to pubilsh the court story in their next edition, the paper would lose the absolute privilege defence as its no longer contemporaneous -​ But non-contemporaneous court reports are covered by qualified privilege -​ All individuals taking part in proceedings have Absolute Privilege – this means they cannot be sued afterwards for what they said. Qualified privilege Where we have qualified privilege -​ Court documents -​ Parliament -​ Public inquiries -​ Official press releases/statements from those performing a government function -​ Public meetings -​ Press conferences -​ Press releases/statements from adjudicating bodies -​ AGM’s of listed companies -​ Tribunals Qualified privilege Part 1 Qualified privilege under the defamation act 1996 (Part 1 of The Schedule, now expanded by Defamation Act 2013) applies to media reports of…. -​ Non-contemporaneous court reports -​ proceedings of Parliament -​ government public inquiries -​ conferences of international organisations -​ Notices/documents issued by judges or courts anywhere in the world… Privilege in the houses of parliament -​ MP’s/lords get ABSOLUTE PRIVILEGE to say what they like in parliament -​ Journalists get QUALIFIED PRIVILEGE (part 1) to safely report their defamatory comments -​ This happened in two high profile cases involving Ryan Giggs and Sir Philip Green Qualified privilege part 2 Qualified privilege part 2 - Media reports of copies or extracts of statements/press releases issued for public information (includes on the record quotes/interviews/emails etc) by, or on behalf of any authority performing government functions This includes: -​ Local councils -​ Central government departments -​ The police -​ Navy -​ Army Qualified privilege part 2 - Press conferences Proceedings of any press conference (also includes press releases and leaflets issued at press conferences) -​ For more than 50 years there had been a debate about whether press conferences got qualified privilege. -​ The Times paid out £145,000 after report of Clegg Committee. -​ This all changed in 2000 after a ruling of the Law Lords. -​ Law Lords who ruled that at a press conference, reporters were the “the eyes and ear” of the public and, therefore, conferences should have Qualified Privilege, along with press releases, even if they were not read out at the meeting -​ Read: McCartan Turkington Breen v Times Newspapers Ltd p371 McNae’s Qualified privilege part 2 - Public meetings -​ Any public meeting for the discussion of a matter of public interest -​ public meeting proceedings of any local authority meeting (parish, city, borough councils etc) Qualified privilege part 2 - Adjudicating bodies (e.g. The FA) and to media reports of… -​ findings and decisions (but NOT the proceedings) of any body with the power to adjudicate on: -​ art, science, religion or learning -​ trade, business, industry or profession -​ sport or games… Qualified privilege part 2 - AGM’s and to media reports of… -​ Annual General Meetings of listed companies e.g. Tesco Qualified privilege - what is required? Qualified privilege Part 2 -​ FAIR -​ ACCURATE -​ PUBLISHED WITHOUT MALICE -​ on a MATTER OF PUBLIC INTEREST and -​ SUBJECT TO PUBLICATION OF A REASONABLE LETTER OR STATEMENT BY WAY OF EXPLANATION OR CONTRADICTION (ie: Right of reply) What does that mean???? -​ Essentially if an MP makes a defamatory allegation in, for example, Parliament (QP part 1), then we are NOT required by law to seek comment from the accused person or company. However, ethically, the editor would still normally include a comment -​ If someone made an allegation in circumstances where you have QP part 2 (e.g. a public meeting or press conference), and someone who has been defamed requests a right of reply, you have to publish it (unless their reply is unreasonable as it contains a defamatory response of someone else for which you have no defence). OFFER OF AMENDS -​ The Defamation Act 1996 provides this defence if the news media can show it defamed someone unintentionally and that it could not have foreseen the libel. -​ It must show that it took all reasonable care. A newspaper must go through tight legal process in making offer of amends and drawing up the apology. -​ If that is refused, paper can use its efforts in its defence in court. Accord and satisfaction -​ This is far more likely where a complainant agrees to the publication of an agreed correction/apology as full settlement of complaint. -​ But beware: Corrections are common cause of defamation. -​ admission of guilt -​ repeat the defamatory comment -​ may defame somebody else -​ must get agreement in writing Section 1, Defamation Act -​ Put simply, this is when someone else comes onto your platform – whether that is your website, live radio programme or TV show – and makes a defamatory comment. -​ This defence offers you protection from being sued – so long as you meet its requirements Live broadcasts and reader comments -​ To use the section one defence under the Defamation Act 1996 you must prove that you: -​ Were not the author/editor/publisher of the statement -​ Took reasonable care  -​ Did not know/had no reason to believe it published the defamatory statement Author/editor/publisher -​ This essentially means you cannot have been the author of the defamatory material -​ Someone else has said the defamatory remark and you had had no effective control over the maker of the statement For broadcasters For TV or radio, if it is a recorded interview, and not a live show, then you would be classed as being the author/editor/publisher of whatever defamatory statement had been made and so would not be able to use this defence. This is because you had time to edit out the defamatory comment For website operators If you moderated a website comment - meaning you checked it and approved it – this would also mean you become the editor/author/publisher of that statement and would not be able to use it Reasonable care For broadcasters -​ The Act says the broadcaster must have taken “reasonable care” in relation to the publication such as by warning callers not to make allegations -​ Broadcasters need to react quickly to halt or cut off defamatory statements to benefit from section 1 For website operators -​ Website operators need to show they removed the defamatory content as soon as it was brought to their attention. -​ The defence fails where the complainant shows malice (eg: the website operator incited contributors to make defamatory postings). No reasons to believe -​ They must show they did not know and had “no reason to believe” that what they were doing caused or contributed to the publication of a defamatory remark -​ Case study, p378 McNae’s: MORI vs BBC Website operators -​ Section 5 Defamation Act 2013 offers a new defence -​ The website operator must follow steps to allow the claimant to act directly against the individual or individuals -​ This can even offer some protection even if the operator moderates the defamatory comment  -​ This defence will fail if the claimant is able to show that he/she was unable to identify the person who posted the statement -​ Best practice is to not pre-moderate any comments and immediately remove anything alleged to be defamatory Regulation 19 - for website operators only -​ This also provides a general protection for website operators – including media organisations – in respect of comments posted directly onto the sites by readers -​ It can protect against defamation actions -​ But it can also protect the operator if a reader posts a comment which breaches criminal law e.g. by threatening violence or identifying some who should have anonymity OTHER DEFENCES -​ Death of the complainant -​ Complainant had agreed to the publication (leave AND LICENCE) -​ Proceedings not started within a year of publication.