Media Law 3: Defamation

Defamation is defined in law as a tort, a civil wrong. It is an area of law that journalists must be at least aware of in order to avoid being sued, for what could be a large sum of money.

A defamatory statement can occur if it tends to:

• lower the claimant in estimation of right-thinking people;
• if it causes them to be shunned or avoided;
• if it disparages them in their business, trade or profession;
• or exposes them to hatred, ridicule or contempt.

For example, in the case we looked at in class we had to consider several quotes that had been given. Some of the quotes that had been gathered appeared to disparage the claimant in his business. However, it later appeared that these claims were not unsubstantiated as they had been proved in a court case, and were therefore not defamatory.

The important bit of this definition is the word "tends to." This implies that the claimant does not have to prove that any of the above actually occurred, only that they could have. The standard that is used is that of the "reasonable man," a term that is widely used in law. In other words, the claimant must prove that the statement would be found defamatory by a man or woman of reasonable intelligence and judgment.

Further problems can arise when statements contain inferences, or innuendos. According to McNae's an inference is:

"a statement with a secondary meaning which can be understood by someone without special knowledge who "reads between the lines in the light of his general knowledge and experience..""

In class, an inference could have occurred when talking about the claimant's Bentley car, and how it would be impossible for him to have enough money to afford it without defrauding the council. Again the standard of the "reasonable man" is used. If a "reasonable man or woman" can see the inference, then the statement may well be defamatory.

On the other hand, an innuendo is defined which may appear to be innocuous on the surface, but becomes defamatory because people may have special knowledge of circumstances. For example, Lord Gowrie sued The Star newspaper, after they used the words "expensive habit," and "snort." In the context of the piece it was implied that Lord Gowrie was a regular user of illegal drugs, and although a direct allegation was not made, it is still clear of the meaning that is intended.

Once the claimant has proved the statement is defamatory they must also proved the statement refers to them. Identification need not be direct, therefore defamation can still occur even if the person's name is not mentioned. Basically, if people who know the claimant can identify them from your writing, then the piece can be defamatory.

The claimant must also prove that the defamatory statement has been published. In  other words, the defamation must have been communicated to at least one other person, this includes the internet, and the repeated statements of other people. Each fresh statement can create another action for the claimant to pursue.

Several defences exist to protect us. First of all, there is the justification defence. In other words, if the information that is printed is true it is not defamatory. However, the burden of proof is on the journalist to prove that the statement is true, not on the claimant to prove it is not. This is judged "on a balance of probabilities." In other words, it must be more likely that the version you are telling is a statement of the true facts.

A second defence is that of fair comment, which is used to protect opinions , not statements of fact. According to McNae's, case law has established several rules. The published comment must be the honestly held opinion of the person, the comment should be recognisable as opinion, the opinion must be based on what is provably true, which must be alluded to in the publication and the subject must be a matter of public interest. If any malice is intended the defence may no longer stand.

Another set of defences come under the heading privilege.The idea of absolute privilege covers reporting of Parliament and court cases, as long as the report is fair, accurate and contemporaneous. The Defamation Act 1996 list several examples of qualified privilege, if the statement is considered important in the public interest, for example, council meeting and police statements.

The Reynold's Defence is a further protection. As long as the writer has ensured "responsible journalism." A full list of circumstances that will be considered by the courts can be found in McNae's.

Most importantly, we must use all this knowledge to recognise risk.We must ask several questions; who am I writing about? Could they sue me or my organisation? Is what I am writing about potentially defamatory? Do I have a defence? If we are unsure as to the answer of any of these questions it is always better to refer the problem to a someone with more experience or with greater legal knowledge.