Monday, 11 October 2010

'Law for Journalists' - Chapters 18 to 22, 34 Raw Notes

Burden on the claimant:

A claimant has to show the court three things when suing for libel:
- The publication is defamatory;
- It may be reasonably understood to refer to him/her, i.e. 'identification'
- It has been published to a third person

It is useful for a journalist to remember what the defamed person does not have to prove.

First, the claimant does not have to prove that the statement is false. If statement is defamatory, court assumes it's false. Secondly, claimant does not have to prove intention. It is normally no use the journalist saying "I didn't mean to damage this person's reputation". Thirdly, claimant does not have to provide any proof of actual damage

Claimant needs to prove that the published matter identifies him/her as the person defamed. Some journalists believe that they can play safe by not naming the person, but such an omission may prove no defence.

It is also important to note that it is dangerous to make a 'half-hearted' effort of identification, particularly in reports of law cases.

E.g - Case of Newstead v London Express Newspapers Ltd [1940] in which the Daily Express reported that 'Harold Newstead, a 30-year-old Camberwell man' had been sent to prison for nine months for bigamy. It was argued that the newspaper had 'recklessly struck out' the occupation and address of the person convicted.

Defamation of a group - If a defamatory statement refers to someone as being a member of a group, and includes no other identifying detail of that person, all members of the group may be able to successfully sue for defamation, even though the publisher intended to only refer to one of them.

In terms of publication, the claimant must also prove that the statement has been published. There is no defamation if the words complained of are addressed only to the person who they are made (with the exception of criminal libel)

Internet publication - In 2005 the court of Appeal held that it would be an abuse of process for a claimant  to bring a libel action over material on the Internet unless 'substancial publication' in England could be shown.

The section 1 defence:

Newsagents and booksellers have enjoyed a defence of innocent dissemination, saying they are merely the conduit for the passage if the words complained of and thus not responsible for them. But this defence was not available to others, such as distributors and broadcasters.

A court deciding whether a person took reasonable care, or had reason to believe that what he/she said did caused or contributed to the publication of a defamatory statement, shall have regard to:

- The extent of his/her responsibility for the content of the statement or the decision to publish it
- The nature of circumstances of the publication
- The previous conduct or character of the author, editor or publisher


It has been suggested that the justification should be renamed truth, because its requirement is that the published matter complained of can be proved in court to be substantially true.

Justification = Difficult defence to use because in a defamation action it is not the task of the claimant to show the published words were untrue. The burden of truth is on the defendant - the publisher - to prove that they were true

Justification means proving not only the truth of each defamatory statement but also any reasonable interpretation that may be understood of the words and any innuendos lying behind them

E.g In 1987, Jeffrey Archer was awarded £500,000 against the Star newspaper, which said that he had paid a prostitute for sexual intercourse. It was true that Archer had paid £2000 to the prostitute to go abroad to avoid scandal but he claimed the article implied he had a sexual relationship with her.

In considering reports linking a claimant with criminal conduct, the courts recognise 3 levels of meaning:

- The report may mean the person is guilty of the criminal offence (Level 1 meaning)
- or he or she is reasonably suspected of the offence (Level 2 meaning)
- or there are grounds for an investigation (Level 3 meaning)

The reason it is defamatory to say a person is reasonably suspected of an offence is that it implies conduct on the person's part that warranted the suspicion, so if you are to succeed in a plea of justification you must show conduct on the person's part giving rise to the suspicion.

Avoid implying habitual conduct - To say of someone 'He is a thief' may be true but in the simple meaning of the words. But if the basis for the statement is just one conviction for stealing a packet of bacon from a shop, a defence of justification might fail.

The defence of justification is not only difficult; it can also be dangerous. If it fails the court will take a critical view of a media organisation's persistence in sticking to a story which it decides is not true, and the jury may award greater damages accordingly.

The Investigative Journalist

- Make sure of your witnesses
- Are they going to be willing to give evidence?
- What is the standing of your witness?

If the journalist is working on a story that may be challenged in court, he/she should persuade the witness to make a signed statement at the time and date it.

Make sure you keep the evidence

Privilege - There are occasions when the public interest demands that there is complete freedom of speech without any risk of proceedings for defamation, even if the statements are defamatory and even if they turn out to be untrue. These occasions are often referred to as privileged. Privilege even exists under common law and statute.

- Reports must be fair
- Reports must be accurate
- Reports must be contemporaneous
- Protection only for reports of proceedings

Qualified privilege - Available as a defence where it is considered important that the facts should be freely known in the public interest. There is privilege at common law for the publication of defamatory statements in certain circumstances.

Accord and satisfaction

'Without prejudice'

A complaint to a media organisation may be made by a telephone call to the editor or to another member of the staff; by a letter from the complainer direct, or from his/her solicitors.

Furthermore, Journalists speaking with someone complaining about a story need to distinguish between
- Discussions over an offer to publish a follow-up story or a correction, and
- Discussions over settling a claim

The birth of the defence - The Reynolds defence, put simply, protects the publication of defamatory material, provided that it was a matter of public interest and that it was the product of 'responsible journalism'

Defamatory statements can be dealt with in the civil courts. But law still exists for libel to figure in the criminal courts. In theory the defamer convicted of criminal libel could be sent to prison.

To sustain a prosecution for criminal libel the words must be written, or be in some permanent form, but there need be no publication to a third party. A further difference between criminal and civil libel is that it is a crime to libel a class of people, provided the object is to excite the hatred of the public against the class libelled.


Under this law any words that are likely to disturb the internal peace and government of the country constitute seditious libel. The tests to determine whether words constitute a seditious libel are:

- Do they bring the sovereign or her family into hatred or contempt?
- Do they bring the government and Constitution of the United Kingdom into hatred or contempt?
- Do they bring either House of Parliament, or the administration of justice, into hatred or contempt?
- Do they excite British subjects to attempt, otherwise than by  lawful means, the alteration of any matter in Church or State by law established?


The most obvious difference between libel and slander is that libel is in some permanent form, while slander is spoken or in some other transient form. The exceptions are:

- A defamatory statement broadcast on radio or television, or in a cable programme, which by the Broadcasting Act 1990 is treated as libel
- A defamatory statement in a public performance of a play, by virtue of the Theatres Act 1968

In slander, as with libel, there must be publication to a third person for a statement to become actionable. There is one further difference between libel and slander. Whereas actual damage will be presumed in a libel action, it must be proved affirmatively by the claimant in a slander action, except in four cases:

- Any imputation that an individual has committed a crime punishable by death or imprisonment
- Any imputation that an individual is suffering from certain contagious or objectionable diseases, such as venereal disease or leprosy: the test is whether the nature of the disease would cause the person to be shunned or avoided
- Any imputation of unchastity in a woman
- Any statement calculated to disparage an individual in his office, profession, calling, trade, or business.


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