Defamation Law PDF

DEFAMATION -​ Major change to the defamation act 2013 - no jury -​ The act removes the presumption for a jury trial in defamation cases -​ Cases are now heard by a judge sitting alone, unless the court orders otherwise -​ The move was intended to bring a measure of good sense to...

DEFAMATION -​ Major change to the defamation act 2013 - no jury -​ The act removes the presumption for a jury trial in defamation cases -​ Cases are now heard by a judge sitting alone, unless the court orders otherwise -​ The move was intended to bring a measure of good sense to jury awards Who can sue for libel? -​ Any living individual can take action for defamation -​ Includes children, foreigners (DA, 2013) -​ Companies may sue Who can be sued? -​ The ‘author’ of a defamatory statement -​ Definition includes author (e.g. writer/speaker etc), editor or publisher -​ Includes all new and traditional media Who cant sue? -​ The dead -​ Councils -​ clubs /associations -​ Political parties -​ Government departments If you get something wrong and someone complains or demands apology - wait until you can track down the editor. There is potential legal dangers of mishandling it. -​ Taking correct steps to correct an error could prevent the case getting to court -​ A poorly worded correction could make matters worse - and even end up defaming someone else -​ E.g.. you write a story repeating claims from Bill Brown that his neighbor fred doggins verbally abused him in the street. Foggins is furious and calls you up asking you to correct the story to say it was actually brown who was abusive. -​ You do so - so now you have defamed both men. Newspapers are reluctant to fight libel cases because it is EXPENSIVE -​ How do people interpret statements? -​ Can you prove it in court? -​ Unpredictability of courts -​ Will witnesses turn up? -​ Will witnesses be credible? -​ Legal costs -​ Paying other persons legal costs if you lose -​ PLUS Damages (could be a lot) if you lose -​ Costs likely to dar exceed damages What the law says - DIP To bring a libel action, a claimant needs to prove all 3: Defamation:the words defamed them Identification: the words referred to them Publication: the words were published 1)​ Defamation (that the words defamed them) -​ They can show that the allegation meets one of the common law definitions of a defamatory statement and it has caused, or is likely to cause, them serious harm to their reputation 2)​ Identification (that the words referred to them) -​ The test for identification is whether the published statement would reasonably lead people acquainted with him/her to believe that he/she was the person referred to. There is no safety in not naming someone. 3)​ Publication (the words were published) -​ The test for publication is that the words complained about have been communicated to at least one other person. Publication triggers a defamation action. If all 3 are met - then ask yourself: Do I have a defence against an action for defamation? What is defamation? Is your article defamatory? There are four common law definition of a defamatory statement CLED Does the article: Cause the complainant to be shunned or avoided? Lowers them in the eyes of right-thinking members of society? Expose them to hatred, ridicule or contempt? Disparage them in their trade, office or profession REMEMBER CLED 1)​ Is your article defamatory? -​ The Defamation act (2013) says the claimant must show that the statement has caused, or is likely to cause his/her reputation serious harm -​ There was some slight confusion over this…. Until it was clarified in a case law decision by the supreme court (Lachaux V Independent Print ltd and another, 2019) -​ Supreme court said claimants must now show how the actual impact of the words used caused serious harm to their reputation, as opposed to just the inherent meaning  -​ Put simply, it is no good to just say ‘this allegation is automatically going to cause me serious harm to my reputation’. The judge will need to consider a range of factors such as the meaning of the words, the individual situation, the scale of the publication and the inherent probabilities. EXAMPLE Blake &Anor V Fox Companies -​ Under the defamation act 2013, companies have to show serious financial loss (but this does not include shares) -​ This could be the loss of just one client or a few hundred pounds - if its a small company then the loss would be substantial for them 2)​ Identification The judge is asked ‘Who would the reasonable man, or a friend of the complainant, believe the words referred to?’ The complainant only has to show that someone believed the words identified him/her. -​ You are not safe by simply not naming -​ You are not safe by dropping a few hints -​ You are not safe using fictitious names -​ You are not safe saying something defamatory about a small group of people Far better to NAME and SHAME 3)​ Publication -​ The defamed person must prove the statement was published to a third person -​ This is easy to prove with regards to news media -​ There could be an exception to this rule if very few people actually see it (see case study P353 McNae’s 26th edition) involving a web link which just two people downloaded -​ A tweet seen by a few dozen or a few hundred people may result in substantial damages The judge/ruling -​ The judge must read/watch/listen to the whole report in its entirety and in context. -​ This is because a statement which seems innocuous on its own, suddenly becomes defamatory when juxtaposed to other materials. -​ The judge is asked to consider what the word means 1)​ In their ordinary, natural way AND 2)​ What they mean by innuendo or imputation -​ The judge will make a ruling on what this meaning is after the first hearing JUDGE will decide if defamatory -​ The judge will need to decide if the words are defamatory of the complainant How do they do that? -​ They use the intelligence and judgement of an ‘ordinary reasonable’ person If it passes serious hard test, then goes to libel trial Judge will: -​ Referee the case -​ Decide on law -​ Decide who wins -​ Decides how much complainant gets if s/he wins -​ Decides who pays costs Captions/photos and defamation How can captions and photos be potential libel danger areas? -​ Identification A caption wrongly identifies someone in a photograph as being a criminal etc (see previous example under juxtaposition) -​ Repetition A photograph repeats a libel - eg: a pic of someone carrying a banner with a defamatory remark on it -​ Inaccuracy -​ A caption with a pic of someone being arrested starts: DISGRACED businessman Fred Smith is led away by police -​ Changed circumstances An archived photo of a married couple could be defamatory if they have since divorced and remarried; or a pic of a man standing outside his house could be defamatory if the house has since been sold and is now used as a brothel. Careful captioning is required -​ Misleading information  A paper was once sued because a photo of a jockey dismounting a horse gave the impression he was exposing himself -​ Juxtaposition A headline may give a libellous impression of an accompanying photo -​ Digitally enhanced photos -​ A pic may have been altered to create a defamatory impression - e.g. putting david Beckhams head on a nude model's body. Accompanying captions should make it clear that the pic has been altered. -​ Innuendo A photo of an anti-porn campaigner walking into a soho strip club during an investigatory visit could be defamatory unless clearly captioned. -​ Careful use of ‘general’ shots Granada TV once showed shots of a policeman walking down some police station steps. They were accompanied by the commentary “some policemen take bribes.” Similarly, a magazine used a stock photo of a model to advertise a product for expectant mothers. The model was not pregnant - or married. She sued -​ Group photos A photo of a group of people standing at the bar at a party or reunion, might be accompanied by a caption saying they are ‘enjoying a tipple’. No problem - unless someone in the group who was teetotal and had strong views on drink. Single publication rule -​ Every fresh publication of the words is a new, separate libel action -​ If the newspaper published it, they are responsible for it and may be sued -​ SOmeone who has been defamed can sue multiple publications e.g. christopher jones case -​ Under section 8 of the defamation act 2013, the single publication rule says the time limit for bringing a libel action is 12 months from the date of first publication -​ Each time an article or footage from an internet archive is accessed by someone, it is deemed to amount to a new publication. -​ But the single publication rule offers protection for publishers - the 12-month limitation period for bringing an action runs from the date of the first publication -​ So the first publication is the first time any member of the public has access to it -​ This is helpful, when for instance an old article which has remained archived on a website suddenly gets shared widely online. -​ Lets say that article contained a defamatory allegation but no-one sued at the time. -​ Now it has generated a lot of views, the defamed person wants to take action  -​ But they cant as the 12-month period to take action has expired. So long as the publisher did not purposefully move the story to a more prominent position/promote it again. If defamatory allegation is repeated in a follow-up article Defamatory allegation appears in print on January 1 A follow up story, which contains the same defamatory allegation appears on january 2 Then the 12-month limitation period begins on January 2 - it is treated as a fresh publication