Reviewed February 2021
DEFAMATION IS THE LAW THAT PROTECTS THE REPUTATION OF INDIVIDUALS AND CORPORATIONS.
It comes in two forms – libel, which is permanent so covers print, broadcast and online publication – and slander which is spoken word.
Most of the time as journalists we are concerned with permanent publication, in print or online, which would be libel. There are some important things to remember about defamation that put a defendant at a great disadvantage.
The reforms of the Defamation Act 2013 came into effect on January 1, 2014 and are reflected below.
Firstly, the claimant only has to show three things to establish their case:
• That the content they are complaining about could have a defamatory meaning and according to the Defamation Act 2013, that is has caused ‘serious harm’ to their reputation. Companies or corporations must now show financial harm.
• That they have been identified adequately
• That the material has been published to an audience
Following the reforms of the Defamation Act 2013, the claimant must show that what has been published about them causes serious harm to their reputation and in the case of companies, that there has been serious financial damage.
Secondly, there are some important assumptions by the court that put the defendant at a further disadvantage.
The claimant does not have to prove:
• That what has been published is untrue, if it has a defamatory meaning the court assumes that it is untrue
• That they have a good reputation. If your defence is that the claimant is of such poor character they cannot be defamed, you must prove that to the court
• That they have suffered any financial loss as a result, unless they are a corporate claimant. The damage is not to livelihood here, but to reputation.
What the claimant must prove:
• Defamation – that the words could damage their reputation. Defamatory meaning covers any suggestion of criminal activity, dishonesty, fraud, hypocrisy, immorality, lack of professionalism, incompetence, failing in a duty, sexual impropriety and bullying. This is by no means an exhaustive list.
• Identification – if the claimant is pictured and named in the article, then this is simple. But even if they are not named, they only have to show that someone who knows them would realise the article was about them.
• Publication – it must be shown that the defamation had an audience. In printed material, it is assumed by the court that someone has read it. For online publication only though, it is technically possible how many people accessed a webpage before it was taken down. If the audience is minimal then it is possible the case will be thrown out by the court.
The claimant has one year to start an action for libel for material that is published in print, online or broadcast.
Defences
Once the claimant has shown these three things to the court, then it is up to you to raise a defence. If there is no real argument about identification or defamatory meaning, then the claimant’s case is established very quickly and you find yourself having to raise a defence.
Repetition Rule
Before we look at defences, it is important to note that it is not a defence to say you are just repeating what others have said. The rule in defamation is that anyone who repeats a libel has a liability for it. A claimant can theoretically sue the entire chain of people who spread libellous material, and they have been known to do so.
This was illustrated recently in the case of Lord McAlpine, who took legal action when a large number of people retweeted defamatory remarks made about him on Twitter.
Main Defences
• Truth. Truth is a complete defence against a libel action, which sounds simple – just tell the truth. However, the court assumes anything defamatory to be untrue and so you have to prove truth. What evidence or witnesses do you have?
• Absolute privilege – a defence for reporting court proceedings. Your report must be fair, accurate and published when the case is in court, or very shortly afterwards
• Qualified privilege – a defence for reporting much of the material that comes out of government and governmental sources, such as the police. Protects reports of government debates, council proceedings, police press conference and statements. Now covers any public meeting or any press conference, by anyone, so long as it is a matter of public interest. Your report must be fair, accurate, on a matter of public interest and published without malice.
• Honest opinion, formerly fair comment. This is a defence of free expression of opinion. The comment must be clearly identified as an opinion and it must be based on facts that are true or privileged. This defence fails when a someone making a comment gets their facts wrong.
• Public interest. The defence known as the Reynolds Defence for publication in the public interest was included in the 2013 Act. It gives a defence where the matter is in the public interest you believe it to be in the public interest publish. The courts are likely to apply a set of Reynolds-style tests to this though – where did the information come from, was it a biased source; how have you checked the information; tone of your report; have you offered an opportunity to respond.
Other Defences
• Time limit – In England & Wales this is 12 months from publication. This is from the first time the material is printed, or uploaded online.
• Online publishers defence – means you are not liable for content placed on your site by a third party – e.g. comment boards , so long as you do not pre-moderate that comment. If you take down the defamatory material once you are notified of its presence, you avoid liability for it.
• Defamation Act 2013 defence for online publication of user-generated-content. This defence allows a publisher to avoid legal action so long as they can reveal the true identity of a poster to the claimant. This information must be provided to tight deadlines.
• Vulgar abuse – Again, relevant to publishers inviting user-generated-content. Vulgar abuse is not actionable in libel. However, depending on its content, it may break other hate-speech laws.
Penalties
Defamation is a civil matter, not criminal and is punished by damages (cash) set by the court and awarded to the claimant. Damages awards can be extremely high, running into hundreds of thousands of pounds. Sometimes legal costs are awarded against the losing side, and these are often higher then the damages awards themselves. Claimants cannot get an injunction to prevent a libel, unlike privacy law where they can get such an order.
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Written by David Banks, Media Law Consultant and Trainer. David runs the Law, Ethics and Copyright workshops for NUJ Training Wales.
