Libel basics

LIBEL

Libel is the publication of a statement which exposes a person to:

Hatred, ridicule or contempt

or which causes him to be
shunned or avoided

or which has a tendency to injure him in his
office, trade or profession

in the estimation of right-thinking members of society generally

Libel is all about words that damage a person's reputation
in the eyes of reasonable people.

Defences in general

If what you have published is not true in substance and in fact then you will be deprived of the two classic defences:
* Justification - What you have published is true.
* Honest Comment - The comment complained of is based on fact (or privileged material as explained later).
The other great defence is Privilege where the truth of a defamatory statement is not the basic issue. Privilege flows from the recognition by parliament that sometimes a person's reputation must be allowed to be wrongly defamed in the greater interests of free speech and open justice.
Until comparatively recently privilege was largely restricted to foreseeable occasions where the need for free speech is paramount, for example the courts and the proceedings of parliament itself. These privileged occasions are listed in the 1996 Defamation Act.
In 1999 a judgment of the House of Lords in the case of Reynolds v Times Newspapers afforded the media the chance to gain privilege for public interest stories about events which no one could possibly foresee.

Libel is all about words.

Words must be taken in the context in which they are used

The test of what the words mean is the test of the reasonable man - not the meaning intended by the person who wrote the words

Example: Radio City in Liverpool were sued for calling a travel agent a con-man.
They said it meant the agent deceived "some at least of his customers".
The travel agent said the words meant he was habitually dishonest or cynical.
Radio City produced 19 witnesses who said they had had dreadful holidays. The travel agent produced 21 who said their holidays were fine. The travel agent won £350,000 damages plus costs.

Identity

To win a case for libel the plaintiff must prove:
1. The words complained of are defamatory.
2. The words complained of refer to him.
3. The words complained of have been published to a third party.

The test for identity: "Are the words such as would reasonably lead persons
acquainted with the plaintiff to believe that he was the person referred to."

Justification

When a case comes to court the law starts with the presumption that the words complained of are false. It is up to the publisher to prove they are true. It has always been a complete answer for a civil action for defamation to prove that the words complained of are true in substance and in fact. The plea of justification must be broad enough to cover every libelous imputation in the statements. Where the words complained of give rise to an inferential meaning it is not sufficient to prove they are literally true.

Justification is theoretically the simplest form of defence but at the same time it is certainly the most dangerous. An unsuccessful plea of justification could increase the damages. The jury is entitled to take into account in assessing the damages everything that takes place right up to the moment when they retire to consider the verdict and compensate the plaintiff - not only for the actual defamation but for the insult to him , with all the attendant publicity of the publisher arguing in court that what they wrote was correct.

Honest Comment

Honest comment defends opinions which by their nature cannot be true or false.
To be covered by the defence of Honest Comment these opinions must be:

1. Based on fact

2. In good faith

3. Without malice

4. On a matter of public concern

1. Fact:
a. You may report in general terms what some public person has done and then comment on it or
b. Identify the conduct with a reference the reader can understand. Watergate for instance provided the media with a convenient shorthand for a complicated issue and spawned any number of xxxxgates.

Two points:

1. Where the comment is based on privileged material such as a report of a court case and the facts mentioned in the report later turn out to be untrue does not negate the defence.

2. A plea of Fair Comment will not fail because of some unimportant inaccuracy in the facts on which the opinion is based - a wrong date or place or a slight misrepresentation of an incident.

2. Good Faith: The defence will not succeed unless the jury is satisfied that the comment is one that an honest-minded man could make on the facts.

The one question that does not have to be answered is whether the comment is fair in the generally accepted sense of reasonable, just or moderate.

The test is: "Would any honest man, however prejudiced he may be, however exaggerated or obstinate his views, have said what this criticism has said? Is the comment relevant to the facts"?

The jury may think the comment is entirely wrong but if they are satisfied it is honest the defence will work.

3. No malice: Evidence of lack of honesty on the part of the newspaper is called express malice - spite or ill will or some other wrong or improper motive. Apart from a history of ill-will the best evidence of express malice is that the newspaper knew that some of the facts upon which the comment was based were untrue

4. Public Interest: The person about whom the newspaper is passing an opinion must be in the public arena - he could be a local councillor, a sports star, a government minister, a judge, a local chef, an author, a newspaper editor etc etc - anyone who has placed himself or herself in the public eye. The private conduct of such people is off-limits unless it has a bearing on their ability or qualifications for public office. People who are not in the public arena, who hold no public office and have done nothing to bring themselves into the public eye are off-limits.

Statutory Privilege

The defence of privilege is an acknowledgement that on certain occasions it is necessary that a person be allowed to speak freely even if, when doing so, he falsely damages another person's reputation. The occasions on which privilege exists have been determined by Parliament (statutory privilege) or, over the years, by judicial precedents (common law privilege)

There are two grades of statutory privilege;

1. Absolute privilege gives absolute immunity from an action for libel even if what was said was motivated by malice For example, an MP's statement in parliament is protected absolutely.
2. Qualified privilege protects the media which reports that MP's statement as long as certain conditions are met.

These conditions for qualified privilege are that the media's reports must be:

* Fair and accurate

* Published without malice

* On a matter of public concern

* And the publication must be for the public benefit. This is important. An MP, for instance, can stand up in parliament and, under the protection of absolute privilege, label a man a killer. He cannot be sued for libel even if he knows, and it can be demonstrated that he knows, that he is making a false accusation. The reporter in the press gallery, however, has only qualified privilege for his report of what the MP said. If he checked the allegation and found that it was wrong and went ahead and printed it then he would lose the defence because it would plainly not be for the public benefit to label an innocent man a murderer even if the actual murder was a matter of public concern.

The 1996 Defamation Act lists the various occasions which are covered by qualified privilege and divides them into two categories, one category where the person who has been defamed must be given a right of reply, the other where no right of reply is necessary.

Common Law Privilege

While parliament periodically reviews the ' public interest ' occasions which it feels necessary to list in Defamation Acts as protected by qualified privilege there are other public interest issues which are just as important but which could never be anticipated. Some newspaper investigations contain allegations which journalists might not necessarily be able to prove but which should be revealed in the public interest. In these cases common law qualified privilege could be their only defence against a claim for libel.

To understand the concept of common law privilege think of a character reference.

The man who asks for it has a serious interest in finding out the truth about the man to whom he's about to offer a job.

The man who has to write the reference has a duty to tell the truth about the applicant, warts and all. If, when writing that reference, he defames the applicant's reputation he would, without privilege, be vulnerable to an action for libel. But if he writes the reference without malice he is immune because of the privilege afforded by common law.

Common law privilege is based on the principle that a person who has a moral, legal or social duty to inform another person about a third party should be able to write freely without the fear of a claim for libel hanging over every word.

Historically, the principle was difficult to extend to the media. First there was the issue of whether the media had a moral, legal or social duty to inform readers of matters of public concern.

Second, did each and every reader of the newspaper have a corresponding duty or interest in receiving the information? Was the story of such concern to each individual reader that a wrongful allegation about a person whose life or conduct might never affect them should be protected by privilege?

The landmark decision of the House of Lords in Reynolds v Times Newspapers clarified the position.

The Law Lords decided that, in certain circumstances:
* The media did have a duty to impart information to its readers
* There was certain information that the public at large had a legitimate interest in receiving.

The Law Lords laid down the criteria by which a judge presiding over a libel trial would decide whether the story was protected by common law privilege. So, if a newspaper prints an allegation against a person which is untrue and the newspaper is sued and pleads qualified privilege as a defence, the court will take into account the following before granting or withholding the defence of qualified privilege.

1. The seriousness of the allegation.

2. The nature of the information and the extent to which it was a matter of public concern.

3. The source of the 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. The steps taken to verify the information.

5. The status of the information. (The allegation might already have been the subject of an investigation which commanded respect).

6. The urgency of publishing the allegation.

7. Whether comment was sought from the plaintiff. (He might have information others did not possess or had not disclosed. An approach to the plaintiff would not always be necessary).

8. Whether the article contained the gist of the plaintiff's side of the story.

9. The tone of the article. (The report could raise queries or call for an investigation. It need not present allegations as statements of fact).

10. The circumstances of the publication, including the timing.

The better the journalism, the better the chance of getting the defence.

NEWSDESK LAW Basic rules

	LIBEL Libel is the publication of a statement which exposes a person to: Hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, trade or profession in the estimation of right-thinking members of society generally Libel is all about words that damage a person's reputation in the eyes of reasonable people. Defences in general If what you have published is not true in substance and in fact then you will be deprived of the two classic defences: * Justification - What you have published is true. * Honest Comment - The comment complained of is based on fact (or privileged material as explained later). The other great defence is Privilege where the truth of a defamatory statement is not the basic issue. Privilege flows from the recognition by parliament that sometimes a person's reputation must be allowed to be wrongly defamed in the greater interests of free speech and open justice. Until comparatively recently privilege was largely restricted to foreseeable occasions where the need for free speech is paramount, for example the courts and the proceedings of parliament itself. These privileged occasions are listed in the 1996 Defamation Act. In 1999 a judgment of the House of Lords in the case of Reynolds v Times Newspapers afforded the media the chance to gain privilege for public interest stories about events which no one could possibly foresee. Libel is all about words. Words must be taken in the context in which they are used The test of what the words mean is the test of the reasonable man - not the meaning intended by the person who wrote the words Example: Radio City in Liverpool were sued for calling a travel agent a con-man. They said it meant the agent deceived "some at least of his customers". The travel agent said the words meant he was habitually dishonest or cynical. Radio City produced 19 witnesses who said they had had dreadful holidays. The travel agent produced 21 who said their holidays were fine. The travel agent won £350,000 damages plus costs. Identity To win a case for libel the plaintiff must prove: 1. The words complained of are defamatory. 2. The words complained of refer to him. 3. The words complained of have been published to a third party. The test for identity: "Are the words such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to." Justification When a case comes to court the law starts with the presumption that the words complained of are false. It is up to the publisher to prove they are true. It has always been a complete answer for a civil action for defamation to prove that the words complained of are true in substance and in fact. The plea of justification must be broad enough to cover every libelous imputation in the statements. Where the words complained of give rise to an inferential meaning it is not sufficient to prove they are literally true. Justification is theoretically the simplest form of defence but at the same time it is certainly the most dangerous. An unsuccessful plea of justification could increase the damages. The jury is entitled to take into account in assessing the damages everything that takes place right up to the moment when they retire to consider the verdict and compensate the plaintiff - not only for the actual defamation but for the insult to him , with all the attendant publicity of the publisher arguing in court that what they wrote was correct. Honest Comment Honest comment defends opinions which by their nature cannot be true or false. To be covered by the defence of Honest Comment these opinions must be: 1. Based on fact 2. In good faith 3. Without malice 4. On a matter of public concern 1. Fact: a. You may report in general terms what some public person has done and then comment on it or b. Identify the conduct with a reference the reader can understand. Watergate for instance provided the media with a convenient shorthand for a complicated issue and spawned any number of xxxxgates. Two points: 1. Where the comment is based on privileged material such as a report of a court case and the facts mentioned in the report later turn out to be untrue does not negate the defence. 2. A plea of Fair Comment will not fail because of some unimportant inaccuracy in the facts on which the opinion is based - a wrong date or place or a slight misrepresentation of an incident. 2. Good Faith: The defence will not succeed unless the jury is satisfied that the comment is one that an honest-minded man could make on the facts. The one question that does not have to be answered is whether the comment is fair in the generally accepted sense of reasonable, just or moderate. The test is: "Would any honest man, however prejudiced he may be, however exaggerated or obstinate his views, have said what this criticism has said? Is the comment relevant to the facts"? The jury may think the comment is entirely wrong but if they are satisfied it is honest the defence will work. 3. No malice: Evidence of lack of honesty on the part of the newspaper is called express malice - spite or ill will or some other wrong or improper motive. Apart from a history of ill-will the best evidence of express malice is that the newspaper knew that some of the facts upon which the comment was based were untrue 4. Public Interest: The person about whom the newspaper is passing an opinion must be in the public arena - he could be a local councillor, a sports star, a government minister, a judge, a local chef, an author, a newspaper editor etc etc - anyone who has placed himself or herself in the public eye. The private conduct of such people is off-limits unless it has a bearing on their ability or qualifications for public office. People who are not in the public arena, who hold no public office and have done nothing to bring themselves into the public eye are off-limits. Statutory Privilege The defence of privilege is an acknowledgement that on certain occasions it is necessary that a person be allowed to speak freely even if, when doing so, he falsely damages another person's reputation. The occasions on which privilege exists have been determined by Parliament (statutory privilege) or, over the years, by judicial precedents (common law privilege) There are two grades of statutory privilege; 1. Absolute privilege gives absolute immunity from an action for libel even if what was said was motivated by malice For example, an MP's statement in parliament is protected absolutely. 2. Qualified privilege protects the media which reports that MP's statement as long as certain conditions are met. These conditions for qualified privilege are that the media's reports must be: * Fair and accurate * Published without malice * On a matter of public concern * And the publication must be for the public benefit. This is important. An MP, for instance, can stand up in parliament and, under the protection of absolute privilege, label a man a killer. He cannot be sued for libel even if he knows, and it can be demonstrated that he knows, that he is making a false accusation. The reporter in the press gallery, however, has only qualified privilege for his report of what the MP said. If he checked the allegation and found that it was wrong and went ahead and printed it then he would lose the defence because it would plainly not be for the public benefit to label an innocent man a murderer even if the actual murder was a matter of public concern. The 1996 Defamation Act lists the various occasions which are covered by qualified privilege and divides them into two categories, one category where the person who has been defamed must be given a right of reply, the other where no right of reply is necessary. Common Law Privilege While parliament periodically reviews the ' public interest ' occasions which it feels necessary to list in Defamation Acts as protected by qualified privilege there are other public interest issues which are just as important but which could never be anticipated. Some newspaper investigations contain allegations which journalists might not necessarily be able to prove but which should be revealed in the public interest. In these cases common law qualified privilege could be their only defence against a claim for libel. To understand the concept of common law privilege think of a character reference. The man who asks for it has a serious interest in finding out the truth about the man to whom he's about to offer a job. The man who has to write the reference has a duty to tell the truth about the applicant, warts and all. If, when writing that reference, he defames the applicant's reputation he would, without privilege, be vulnerable to an action for libel. But if he writes the reference without malice he is immune because of the privilege afforded by common law. Common law privilege is based on the principle that a person who has a moral, legal or social duty to inform another person about a third party should be able to write freely without the fear of a claim for libel hanging over every word. Historically, the principle was difficult to extend to the media. First there was the issue of whether the media had a moral, legal or social duty to inform readers of matters of public concern. Second, did each and every reader of the newspaper have a corresponding duty or interest in receiving the information? Was the story of such concern to each individual reader that a wrongful allegation about a person whose life or conduct might never affect them should be protected by privilege? The landmark decision of the House of Lords in Reynolds v Times Newspapers clarified the position. The Law Lords decided that, in certain circumstances: * The media did have a duty to impart information to its readers * There was certain information that the public at large had a legitimate interest in receiving. The Law Lords laid down the criteria by which a judge presiding over a libel trial would decide whether the story was protected by common law privilege. So, if a newspaper prints an allegation against a person which is untrue and the newspaper is sued and pleads qualified privilege as a defence, the court will take into account the following before granting or withholding the defence of qualified privilege. 1. The seriousness of the allegation. 2. The nature of the information and the extent to which it was a matter of public concern. 3. The source of the 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. The steps taken to verify the information. 5. The status of the information. (The allegation might already have been the subject of an investigation which commanded respect). 6. The urgency of publishing the allegation. 7. Whether comment was sought from the plaintiff. (He might have information others did not possess or had not disclosed. An approach to the plaintiff would not always be necessary). 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. (The report could raise queries or call for an investigation. It need not present allegations as statements of fact). 10. The circumstances of the publication, including the timing. The better the journalism, the better the chance of getting the defence.