Friday, 26 October 2012

Media Law, Lecture 5, Year Three - Defamation

Our fifth lecture with Ian Anderson focused on defamation. We looked at how to identify when a story is potentially dangerous to publish, libel defence, and defamation via pictures.

For journalists, having a strong understanding  of defamation is key to preventing severe legal issues when it comes to publishing content. The UK has some of the strictest libel laws in the world.  Working on WINOL at the University of Winchester, myself and the team know first-hand the threat that defamation poses.


Picture: Courtesy of FreeDigitalPhotos.net
Let's define defamation. Defamation is present if WHAT you write or broadcast about someone / a company tends to:

1) Lower them in the estimation of right-thinking people
2) Causes them to become shunned and avoided
3) Disparages them in their business or trade
4) Exposes them to hate, ridicule or contempt

It's possible to defame someone from any published medium. Radio, TV and print journalism are all included. Defamation via pictures is a common danger when it comes to television. Careless use of background shots with a voice over can be defamatory under certain circumstances, which is why it's vital to assess the context of what you're saying before making it public.

For example, let's pretend that during a news package, I filmed a close-up panning shot of a crowd shouting abuse at players. If, in my voiceover, I said something along the lines of: "These football hooligans..." then this would be defamatory to the people in the crowd who were not involved with the abuse. These people were in the wrong place at the wrong time, but were still described in the news piece as 'hooligans'. This is clearly a defamatory statement. The fact that they are clearly identifiable in the close-up shot is also very dangerous.

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.


During Ian's lecture, we also discussed the relationship between defamatory statements and reputation. Reputation is precious, especially if you live a life in the public eye and have money. It was rightly pointed out in the lecture that now, more than ever, reputation can be shattered in an instant. The power of the web in particular means defamatory information and rumours can spread like wildfire, so it's more important than ever that we, as journalists, take care in what we're saying, how we're saying it, and who we're saying it to.

Inference and innuendo are also serious hazards. An innuendo is a statement which may seem to be innocuous to some people but which will be seen as defamatory by people with special knowledge. The libel claimant who argues that he/she has been defamed by an innuendo must show not only that the special facts or circumstances giving rise to the innuendo exist, but also that these facts are known to the people to whom the statement complained of was published.

It's best to remember the definition of libel using the following formula:

Publication + Defamation + Identification = LIBEL.

During the lecture, we also discussed possible lines of defence when it comes to libel. These are as follows:

1) Justification

This ultimately boils down to the question: Is what you have said true, and can you prove this in court? Justification is a 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.

For example, 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.


2) Fair comment

Is the information honestly held opinion based upon facts, or privileged material in the public interest?

3) Absolute privilege (e.g Court reporting)

4) Qualified privilege

The Reynold's Defence was also mentioned in the lecture. 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'. The original Reynold's case involved the prime minister of Ireland at the time and the Times newspaper. Mr Reynold's was unhappy with what the newspaper chose to publish in its story on his resignation. 

More information on the Reynold's case can be found at the link below:


Lord Nicholls was the judge involved in the appeal stage of the Albert Reynolds vs Sunday Times case in 1999, and took it upon himself to further define qualified privilege protection against defamation. The following 10-point list was formed:

1) The seriousness of the allegation - The more serious it is, the more protection is applied
2) The nature of the information - ..and the extent to which the subject is a matter of public concern
3) The source of the information - If your source is in a position of great power, you're more entitled to report their allegations
4) The steps taken to verify the information - Ideally, you must talk to the person you are making the allegation/s against to obtain their side of the story
5) The status of the information - You must ensure that the allegation you are making has not been made and dealt with already. It may have already been dismissed for one reason or another
6) The urgency of the matter - If your report is genuinely urgent, you may be entitled to protection
7) Was comment sought from the claimant? - It's encouraged that you get the other side of the story to provide balance
8) Did the article contain the 'gist' of the claimant's side of the story? 
9) The tone of the article - A general 'allegations over ___ have caused concern' story is legally much safer than a story assuming the allegations are completely true
10) The circumstances of the publication - This includes the timing of the published piece

Remember:

Who are you writing about? Will they sue? Why are they likely to do so?

Is what you're writing potentially defamatory?

Do you have a defence?

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