Defamation, Defamation, Defamation

Hosted by Kirstie Allsop for Channel 4.

Yeah, not really though. Defamation is essentially the legal term for saying bad things about a person. I've rather oversimplified things there but there is a simple bullet point way of defining defamation, and guess what? Here are the bullet points now!!

If what you write or broadcast about someone or a company 'tends to...'

• Lower them in the estimation of right thinking-people.
• Causes them to be shunned or avoided.
• Disparages them in their business, trade or profession.
• Exposes them to hatred, ridicule or contempt.

There are many different forms of defamation, the most common for journalists being libel. Now do not get the two confused; it's the classic all cod are fish but not all fish are cod, so all libel is defamation but not all defamation is libel, sometimes it can be slander. "Whoa now Graham, you've said another confusing word!" And you'd be right, so now is the time for me to explain these terms. LIBEL in all caps is the written form of defamation. In a really poncey algebra kind of way, Publication + Defamation + Identification = Libel. The more you know. SLANDER on the other hand (also in caps lock) is the spoken form of defamation; it does not need publication to be defamatory or for a person to be taken to court which is the likely outcome of a defamatory statement.

Fortunately there are some defences you can apply when it comes to libel. The best defence you can have for  libel is justification. Justification is simply that your statement is true and you can prove it in court (beyond reasonable doubt etc). The second is fair comment which is technically defined as an honestly held opinion based upon facts or privileged material which is in the public interest (check back to last weeks lecture for the PCC definition of public interest). One of the most solid defences though is absolute privilege which is based on your notes from court reporting mostly; if a judge says something in court and you report it word for word using your shorthand notes and it is FAST, ACCURATE and FAIR as it should always be then you can report any statements made, even if they are highly defamatory. The fun legal loophole here though is that you cannot defame a dead person. I can call any dead person I want anything I want and be completely safe legally. Yay for loopholes!

Defamation cases can often become quite famous as the cases rumble on, for example the Max Mosley case has rumbled on for so long, it's no longer about defamation (because it turned out for the most part to be true), it's now a case of privacy. One of the best (depending on your perspective) cases of defamation in recent times was the Chris Jefferies case. OK so I've definitely mentioned it before but it's because it really has changed things in journalism and in defamation law. Chris Jefferies was the landlord of Joanna Yates who went missing in 2010 later to be found dead which put Jefferies at the centre of a murder enquiry. Nothing wrong with that so far (except the murdering obviously) but what did go wrong next was the fact that newspapers reported Jefferies arrest as if he was definitely the murderer, simply because he looked a little eccentric. It eventually transpired that the murderer was a man named Vincent Tabak and the newspapers did a lot of backtracking, a lot of apologising and a little paying of substantial damages. The reason though that the papers jumping to these conclusions was so bad is that it could have caused serious problems in court. Had Jefferies gone to trial it would have been near impossible to find an unbiased jury who didn't already assume he was the murderer from the character assassination he was facing from the papers.

While that was one case of defamation where an out and out nasty thing was actually said of a person, that isn't the only way to defame a person. You can defame someone simply with the pictures you use in a package with the careless use of a voiceover. So for example in a story about football hooliganism a panning GV of the crowd with a voiceover like, "The (insert your clubs rival team) fans then took to the pitch and wrecked the goals, causing havoc," would be defamatory to the people in that shot as they might be completely innocent bystanders who just happened to be in your GV. The most likely explanation for something like this would be a story has broken and the only footage a reporter has is GVs of the previous weeks game; notice I said explanation rather than excuse as there is no excuse for that kind of mistake, you can and will be sued. The newspaper version of this is juxtaposition libel which can happen when a headline relating to one story saying, I dunno, "serial murderer finally captured," is put slap bang next to a picture from another story, leading the reader to assume the two are connected and therefore it libels the person in the picture. I've been doing a bit of reading and it appears the first case of juxtaposition libel involved a certain Madame Tussaud. Now you wouldn't think waxworks could cause much of a problem but in a blog from an old WINOL-ite you can read all about it

Finally I want to give a brief mention to the Reynolds defence. The points that make it up are as follows, laid down by Lord Nicholls during the Reynolds vs Times Newspaper case:

1. Seriousness of allegation - The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. Nature of information - The extent to which the subject matter is a matter of public concern.
3. Source of information - Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. Steps taken to verify the information - It is always important to check whether the information is true.
5. Status of the information - The allegation may have already been the subject of an investigation which commands respect.
6 . The urgency of the matter - Is the news perishable? Courts must take in to account the need of journalists to work and publish quickly.
7. Whether comment was sought from claimant - The person who is defamed may have information others do not possess or have not disclosed. An approach to the claimant is not always necessary.
8. Whether the articles contained the gist of the claimant side of the story - the journalism must be fair.
9. Tone of the article - A newspaper can raise queries or call for an investigation but need not adopt allegations as statements of fact.
10. Circumstances of the publication - Is the story really so urgent that it had to be published when it was.

I've talked a lot about defences but what about the times when you can have no defence? You can have absolutely no defence when you have not checked the facts, when you have not 'referred up', when you have not put yourself in the shoes of the person or company you are writing about, when you have got carried away by a spicy story, when you have not bothered to wait for a lawyers opinion. On WINOL the system works like this; if a news reporter doesn't show the news editor their package before it goes in to the bulletin or includes something the news editor hasn't seen then it is their fault, if the news editor sees it and defamatory material still goes in then it is their fault, if it is a particularly complicated issue then the editor may be called in until eventually it may go all the way to a lecturer who will pass final judgement on the most legally delicate stories. As always though, recognise the risk.

Until Next Time. Stay Classy Internet.