A statement is defamatory if it tends to do any of the following:
- expose a person to hatred, ridicule or contempt;
- cause them to be shunned or avoided;
- damage their reputation in their business, trade or profession
- make right-thinking members of society think low of them
A defamatory statement that is written down is a form of libel. If the statement is spoken, it is seen as slander.
The way a statement is tested for defamation is to see what a reasonable thinking person would take the statement to mean. This is also the same for inference-a statement with a secondary meaning that can be understood by someone without any special knowledge.
In a trial for a defamation case, a jury is involved. The judge will decide if the statement is capable of having a defamatory meaning, and the jury will then decide if the statement was defamatory considering the circumstances.
The claimant suing over a statement must be able to prove that:
1) It is defamatory
2) It may be reasonably understood to be about him/her
3) It has been published to a third party.
The test of identification is whether the statement would lead people who knew the claimant to believe that they are the person being referred to.
Everytime a defamatory statement is repeated, it is seen as a fresh publication. Therefore, a journalist is liable for repeating a defamatory statement made by an interviewee or source. With internet publications, each time the article is accessed, it is seen as a fresh publication.
A person who has been defamed can sue the reporter, the editor, the publisher, the broadcaster, or anyone else who participated in publishing the defamatory material.
There are several defences for journalists to avoid being sued for libel.
The main ones are:
- Justification
- Fair comment
- Absolute privilege
- Qualified privilege
The justification defence is a complete defence to prove that the statement is substantially true. This defence only applied to facts, and the defendant must prove not only the meaning of the words, but any innuendo or inference.
This is important in journalism, as investigative journalists must always make sure that they can prove their facts in court.
A defendant can plead that a statement expressing comment was an honest opinion on a matter of public interest. This is the fair comment defence. The comment must be based on true facts that are either stated in the story or are widely known.
Privilege was covered in the 4th lecture of term. There are occasions when public interest demands freedom of speech without risk of proceedings for defamation, even if the statements made are defamatory and even if they turn out to be untrue. These are referred to as privileged, which exists under common law and statute.
Absolute privilege is a complete defence for defamation. It does not matter whether the words are true or false, or whether they were used maliciously. However, a journalist may be reporting on an occasion protected by absolute privilege, but this does not mean that the report is similarly protected. For example, Members of Parliament can say whatever they want in the House of Commons, but reports on the parliamentary debates are only covered by qualified privilege.
The only time journalists are covered by absolute privilege is when reporting court cases. This is vital because what is said in court is often highly defamatory, however privilege does not apply if the hearing is held in private.
For absolute privilege to apply, a report of a court case must be fair and accurate by:
- presenting a summary of both sides
- contains no substancial inaccuracies
- gives proportionate weight to both sides.
If any of these are missing, then the protection of privilege is lost.
Allegations made in court report must be worded correctly so that the allegation is not stated as a fact. Also, in order to maintain absolute privilege, court reports should be published as soon as it is practicable to do so.
Qualified Privilege is available as a defence where it is important that the facts should be freely known in the public interest. The protection provided by qualified privilege is similar to that of absolute privilege, but the requirements that must be met differ. To be protected by qualified privilege, the published report must be fair and accurate, and published without malice. A general requirement for qualified privilege is that the matter published must be of public concern, and so the publication is for the publics benefit (i.e. public interest).
The Reynolds Defence protects the publication of defamatory material, provided that it was a matter of public interest and was the product of responsible journalism. During the Reynolds vs Times Newspapers (2000) 2 AC 127 case in the House of Lords, Lord Nicholls outlined 10 circumstances which should be taken into account when deciding if the media qualify for this defence. These are:
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed if the allegation is not true.
- The nature of the information, and the extent to which the subject is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events, or may be being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the claimant. He may have information that others do not possess or have not disclosed. This will not always be necessary.
- Whether the article covered the claimant's side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It does not need to adopt allegations as statements of fact.
- The circumstances of the publication, including the timing.
Journalists see these points as a list of hurdles they must jump in order to get this defence.
(McNaes 20th Edition)
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