A children’s home is run by a pillar of the community - Marcus Bent OBE, senior social worker, head church warden, president of a rotary club, captain of a charity cricket team.
Mr Bent has a staff of six to help him deal with about 30 children, many of whom are emotionally disturbed.
A young social worker calls the newsdesk and says she resigned from the social services department last month after working at the children’s home for six months.She claims that Marcus Bent physically and mentally abuses children who dare disobey him or other members of the staff.
She says that she had seen him kick one boy repeatedly after knocking him to the ground and had also seen him slap one girl so hard that her face swelled up.
She claims that children who misbehaved were routinely locked up for as long as 12 hours in a small, unlit, unheated room equipped with just a mattress and a chamber pot.
The social worker says she protested to her superiors but got nowhere so she decided to resign. She is too frightened to go to the police.
Social services confirm that the woman had worked at the home and had resigned but decline to go any further. You are refused permission to talk to the children.

Discuss.

 

Who might sue?

Marcus Bent: Libel is all about the protection of a person’s reputation and Marcus Bent ‘ pillar of the community’ plainly has a good reputation to protect and would be odds on to sue. He is being accused directly of child abuse.
Unidentified staff of six: They are being accused, by inference, of standing back and letting Marcus Bent abuse children . It doesn't matter that they are not named. The test for identity only demands that they would be recognised by people who knew them as being on the staff of the home. They are six in number and this would be few enough for them perhaps to claim defamation either as individuals or as a group. The law tries, for public policy reasons, to restrict the numbers in group defamation. The largest number so far is the 13 police officers who sued as a group in the ‘dog handler’ case.
The woman’s “superiors” : Her superiors where? Her superiors at the home or her superiors in the social services department? To say that the woman “protested to her superiors but got nowhere”: is dangerously woolly. Would it leave a reasonable person with the impression that the people in the social services department didn’t care? While a local authority itself can’t sue, officials who work for it certainly can. Great care must be taken when writing about people who might be said to be on the periphery of the main action.

 

Four Defences – which of them apply?

Fair Comment – not applicable, all the allegations are matters of fact.

Statutory Privilege – not applicable

Justification: It is the newspaper’s duty to prove the libellous allegations to be true on the balance of probabilities. The paper’s main witness would be the young social worker and ranged against her would be the estimable Marcus Bent and the other six staff members. Who would the jury believe?
The paper also has first to worry about the integrity of their informant. Does she have an axe to grind? Is there some ulterior motive? The paper should at least have the woman swear an affidavit which must be confined to those allegations which she is able of her own knowledge to prove. This has a sobering effect on people who make wild allegations - and on newspapers who rush to print them.
Secondly, there is an obvious danger in relying on the evidence of children who are in the home in the first place because of their emotionally disturbed condition. That is not to stop a newspaper (following correct procedures when dealing with young people) from interviewing as many former residents as possible to see if the allegations are correct.
Conclusion: Justification, while in theory possible, is in reality a non-runner because of the imbalance of evidence.

 

Common Law privilege AKA The Reynolds ‘Public Interest’ Defence
This ‘public interest’ defence allows newspapers to print allegations of genuine public concern even though it cannot prove them to the hilt as would be the case here.

The Reynolds case decided the criteria by which a trial judge would decide whether such a story merited the protection of qualified privilege. It is worth remembering that the Reynolds defence is not merely a get-out for good journalism but is designed to determine if the media as “the watchdogs of the public” had a DUTY to publish this information in the public interest.

Below is how the 10-point Reynolds defence could be applied to the care home story.
1. The seriousness of the allegation. In this case it could not be more serious and the newspaper consequently has to be sure of the quality of its journalism - as tested later on - and the manner in which the allegations against Bent are presented.
2. The extent to which the story is a matter of public interest : This is immense. The idea that children are being abused in a council care home demands a newspaper’s attention as “watchdog of the community”.
3. The source of the story: Did the social worker have an axe to grind? Was she giving us information without having direct knowledge of the events?
4. The steps we took to verify the woman’s information: The problems in doing this have been set out but failure to act in a professional manner in this area would destroy our claim for privilege.
5. The status of the information: If there was any documentary evidence to back up the claims - conclusions of a confidential official investigation etc or, even better in this case, a detention or punishment record from the home itself. Documents like these are gold dust.
6. The urgency of the matter: In this case the newspaper could reasonably argue that to save the children from further cruelty, they had to get the story out as soon as possible.
7. Was comment sought from Marcus Bent & co: This is crucial. People whose reputation is about to be shredded should always be given a proper opportunity to comment and the newspaper should report fully what they say - however far-fetched their explanation seems.
8. Did the article at least contain the gist of Bent’s side of the story: If he won’t comment we must take care to put in everything we know that might go towards his side of the story.
9. The tone of the article: A headline such as “Bent batters kids” is a statement of fact we are unable to prove and is much too sweeping when dealing with a person’s reputation when you’re not 100pc sure he does in fact batter children. The safer - and more responsible - way is for the paper to call for an inquiry into the allegations. We should print the allegations in a factual, non-emotive manner in a style which has become known as neutral reportage.
10. The circumstances of the publication, including the timing. This is a catch-all point that enable the judge to take any other matters into account. It would have no real relevance in this particular case.

 

Other points to consider

Marcus Bent seeking a ‘gagging’ order
Marcus Bent has threatened to sue if the allegations are printed but in many cases like this people would take steps to prevent the newspaper publishing the story in the first place.They would seek to obtain an injunction from the courts. The process by which an injunction to stop publication is either granted or refused is governed by Section 12 of the Human Rights Act.

Interviewing the children involved.
Guidance for this is contained in clause six of the Press Complaint’s Commission’s code of conduct which states:

Clause six is one of those in the code which may be circumvented in the public interest.

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. The sad soufflé
Any statement in disparagement of goods or their quality is defamatory if it reflects on the owner or manufacturer in his character as a person or a trader. Imputations that give most cause for complaint are dishonesty, carelessness or – as in the case of the sagging soufflé - incompetence.
It would be quite acceptable to lambast the chef for turning out a flat soufflé but actionable if you suggest that the owners, who claim to provide classical French cuisine, should choose to employ a chef who did not, in fact, even know how to make a soufflé, that cornerstone of the French classical cuisine.

2. The Ronald rant
Before you reach for the delete button take note that Lord Nicholls said in the Court of Appeal (Cheng v Paul) that malice in the shape of spite or ill-will by the writer need not necessarily negate the defence of Fair Comment.
"Actuation by spite, animosity, intent to injure or other motivation, whatever it may be, even if the dominant or sole motive, does not of itself defeat the defence of Fair Comment though it may be evidence from which a lack of genuine belief (thus making it dishonest) may be inferred."
He added: " Critics need no longer be mealy mouthed in denouncing what they disagree with "provided the objective limits of fair comment defence were established."
That is:

So having said all that, the key issue seems to be whether "reasonable people generally" would know enough about Ronald McDonald to decide for themselves if the vehement criticism was justified. This paragraph neglects to "explicitly indicate" the facts upon which the rant is based. The reader must be able to make his/her own mind up as to whether the criticism is justified.

Identity point: McDonalds as a trading corporation are the obvious target for this rant and they have demonstrated in the past that they are not averse to suing for libel (the two-year-long vegans case is the longest libel trial in history) and this paragraph would certainly lower their trading reputation. But, much nearer to home, would the actor who portrayed Ronald in this show also have a case?

Statutory Privilege

The defence of statutory privilege is an acknowledgement that on certain occasions it is in the public interest that a person be allowed to speak freely even if, when doing so, he/she falsely damages another person's reputation.The occasions on which Privilege exist have been determined by Parliament and are clearly listed in the 1996 Defamation Act.

Here is the type of question which explores the defence:

There are two grades of Statutory Privilege:

To understand the difference between the two consider what happened when Ian Paisley read out a list of names belonging to people he said were responsible for 10 murders. This accusation was highly defamatory of those people. If privilege did not exist Paisley would be left with only the defence of Justification if he were sued. But Paisley was protected by the Absolute Privilege which attaches to statements made by MPs during the proceedings of Parliament. This means that he could make defamatory statements even if the statements were made maliciously. Absolute Privilege is a complete answer and barrier to any action for defamation. It does not matter if the words are true or false.

The journalist in the Press Gallery who was reporting what Paisley said was also protected by privilege – but of a lesser kind. The reporter’s privilege has strings attached – it is “qualified” – and loses the protection of privilege if his report does not conform to four requirements. The Telegraph editor had to consider the four requirements before deciding whether or not to use the names which Paisley had read out.

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