Media Law 3 - Defamation

In our third media law lecture the focus was on defamation and the legal issues that come with it for a Journalist.

The charge of defamation is more than personal, it is related to how you appear to the outside world and is related to profession. To give the example used in the lecture, if you were to tell me that I can't cook, that would fine, it has nothing to do with my profession but if you (hypothetically of course) were to suggest that Gordon Ramsey couldn't cook, this would be defaming him because, as a cook, it would lower his reputation in the minds of right minded people. The Judge and Jury decide whether something is defamatory so the claimant does not even need to prove the statement has lowered their reputation. The definition of defamation is a statement that tends to lower the reputation of someone in the minds of right thinking people. The use of a word like 'tends' gives it a sense of possibility so people can sue on their interpretation of a statement. Only the jury can decide whether the statement really was defamatory but at the end of the day the Journalist is the one who has to prove it wasn't, not the other way around. Because of the nature of our culture there are some people (who will go unnamed for fear of defaming them) who will sue for practically anything which can take damages into the millions. There is an issue with defamation being linked to the thoughts of "right minded people" because as individuals we do not always think the same. What seems defamatory to someone (particularly the claimant) may not seem defamatory to others.

Defences
As a Journalist you do have a number of defences to being sued for defamation with the best probably being Justification. Essentially it is the defence of truth, you do have to prove it is true but if you can do that then even if the statement is defamatory then you still have the defence of Justification. In The Sun of that day the front page had George Michael and a story about him 'coming out' of jail. There are two things that could be seen as defamatory in this story; firstly the fact that he was in jail which in the minds of right thinking individuals would lower your reputation. Secondly there is the insinuation through the use of 'coming out' that he is homosexual which would be defamatory to someone with a wife and family but in the case of George Michael, these statements are truth and therefore the paper is protected by the defence of Justification.

In some cases, a Journalist has the defence of Privilege, mostly this is qualified privilege such as in Parliament but in court you have absolute privilege. This means as long as it has been said in court you can say the most dangerous and defamatory things because the public needs to see that justice is being done so you are protected. For the defence of Privilege to be held up you need to follow certain rules. You can't bring recording equipment in to the court, you can only have your shorthand notes (which is why shorthand is so important). Good shorthand is your shield as a journalist because it can prove what was said in the court. The report also has to be fair, i.e. not one sided. If you only reported the prosecution in court and the person being prosecuted turns out to be innocent, there could be a case for defamation. The next rule may seem obvious but it needs to be said, don't make anything up, it has to be accurate no matter what. Finally it must be contemporaneous, (basically next day publishing), if it isn't then it cannot be protected by the laws of Privilege.

The last defence is the defence of Fair Comment. This is probably the most difficult to prove as it still has to be provable even if it is your honest personal belief. For example if your honest personal belief was that this blog was absolutely shockingly written and not very good at all, it would still be defamatory to me as a student of Journalism and you would have to prove it was true. Often opinion columnists base their defence on this so Charlie Brooker for example would have had to use this defence many times, although not so much any more as he has just practically given up his Screen Burn column in The Guardian.

You could also argue that the rarely used and very dangerous 'Bane and Antidote' is also a defence but saying something nice after something nasty is a very dangerous tactic and not one that should regularly be used. Any and all of these defences are lost however if the comments come from malice and for something to be defamatory it has to be published, even if it is only to a couple of people it has still been published (even blogs with tiny audiences such as this one need to be careful).

Almost finished
I'll finish the blog with one last example of defamation and defence from it. If you wrote an article saying that the gardener doesn't cut the grass and the gardener sends a letter to you saying "Yes I do." You can post a correction before anything gets libelous but if you send a letter to the gardener apologising it is essentially an affirmation that you were being defamatory. Putting 'Without Prejudice' on the top of the letter however makes the letter practically untouchable by law. Worth knowing I think.