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Huddersfield 15/16 JPP Law 3

Defamation
by

Richard Jones

on 3 November 2015

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Transcript of Huddersfield 15/16 JPP Law 3

Defamation
Today's lecture
Contact me
Email: r.l.jones@hud.ac.uk
Twitter: @rlwjones
Blog: richardjonesjournalist.com
Office: JM3/08
Office hours: Tuesday 1:15-2:15,
Wednesday 12:15-1:15
There's some easy-to-read summaries of the key points at the BBC College of Journalism.
www.bbc.co.uk/academy/journalism/law
Remember: I recommend you buy or borrow a copy of McNae's Essential Law for Journalists. The new 22nd edition includes an updated section on the new Defamation Act.
Defamation and what it is
What claimants must prove, and defences for journalists
The Lord McAlpine case
Defamation and what it is
Defamatory statements are those published or spoken which affect the reputation of a person, company or organisation.
A defamatory statement published in written form such as in a newspaper or online, or broadcast on TV or radio, or spoken during a public performance of a play, is a
libel
.
You might also have heard the word
slander
. This is a defamatory statement which is spoken (but not broadcast). It's extremely rare for a case of slander to come to court.
Defamation cases were usually heard by a jury, but most are heard by judges alone now. In jury cases, a judge will decide whether a statement is capable of being defamatory. Then the jury decides whether it actually is defamatory in the context in which it was used.
If the jury believes it was, it then sets the amount of damages the defamed party gets from the publisher.
Judges and juries will consider that a statement about a person is defamatory if it
tends to
either:
- Expose the person to hatred, ridicule or contempt
- OR cause the person to be shunned or avoided
- OR lower the person in the estimation of
right-thinking members of society
generally
- OR disparage the person in their business, trade, office or profession
The words
tends to
are important. Someone claiming defamation doesn't have to show the statement actually did expose them to hatred or whatever.
Also important: the idea of
right-thinking members of society
generally. It's not enough for a claimant to show that their reputation was affected among a small section of society.
Let's look at a couple of examples.
In an article in 2011, the Daily Mirror described comedian Frankie Boyle as "racist". The article began "Racist comedian Frankie Boyle" and went on to say that he had been "forced to quit" the BBC's Mock the Week.
What might be defamatory?
Boyle successfully argued the racist language he used in his routines (including the N-word) was actually a way of being satirical about racist people, and did not mean that he himself was racist. The jury decided the Daily Mirror article was defamatory.
Boyle was awarded £50,400 for the "racist" part of the case, and a further £4,250 for the claim that he had been "forced to quit" the show.
In 2012, One Direction were interviewed on Granada Reports, the ITV news programme for the north west. The reporter was Caroline Whitmore, a married 34-year-old.
During the interview, Caroline Whitmore was kissed on both cheeks by Harry Styles, who had previously been romantically linked to older women including presenter Caroline Flack.
The Sun published a short article about the interview, under the headline "Harry and cougar No 3".
What might be defamatory?
The Sun agreed to settle the case before it got to court. The paper paid damages and costs to Whitmore and published an apology.
Inference.
Many statements carry more than one meaning. The inferred meaning of words may be defamatory, even if the literal meaning is not.
The One Direction case is a classic example. Nobody reading the article would seriously believe the TV reporter was in fact a mountain lion. They will have been able to work out that
cougar
was used for its slang meaning of an older woman who pursues younger men.
You can't get round defamation law by using an
inference
or an
innuendo
instead of a direct allegation.
Innuendo.
A statement which might seem unremarkable to some people, but which will be seen as defamatory by those with special knowledge.
A notable case dates from 1986. Lord Gowrie had resigned as Arts Minister, and the Daily Star published an article asking: "What expensive habits can he not support on an income of £33,000? I'm sure Gowrie himself would snort at suggestions that he was born with a silver spoon around his neck".
What might be defamatory?
Gowrie's lawyer successfully argued that some people reading the article would realise the innuendo references to taking drugs. He won damages.
The Lord McAlpine case
What claimants must prove
Claimants suing in these cases must prove three things:
defamation, identification, publication.
Defamation:
The publication is defamatory.
Identification:
It may be reasonably understood to refer to him or her.
Publication:
It has been published to a third person.
On
identification
, using the wrong photo or wrong caption can be costly.
I was working at Sky News in 2003 when a story broke about a Tunisian man called Nizar Trabelsi, who was jailed for ten years for plotting to blow up a US air base. He was described as a 'former footballer' and someone searching the picture archive for Trabelsi produced a photo of Sami Trabelsi, a former Tunisia football captain.
The picture of Sami Trabelsi was wrongly broadcast in the story about the terrorist. He won an on-air apology plus damages.
On
publication
, when an article has originated at an overseas website, a claimant can't sue in an English court unless
substantial publication
has taken place here.
This idea was established in the 2005 case of Saudi businessman Yousef Jameel, who sued the Wall Street Journal in London over an online article. Only five people in England had accessed it, of which three were Jameel's lawyers. So the case was thrown out.
Also on
publication
, repeating a defamatory statement that has been published first elsewhere is no defence. Each publication counts as a 'new' libel.
Defences for journalists
If it's just a judge, then he or she will do all of that themselves.
The new
Defamation Act 2013
outlines six defences publishers can use.
Truth.
The publisher shows the statement is substantially true (this can be trickier than it sounds).
In March 2012, the Sunday Times claimed Conservative Party Treasurer Peter Cruddas was offering donors the chance to meet David Cameron in return for money.
Undercover reporters had filmed Cruddas talking. But in court, Cruddas successfully argued the paper had made him out to have broken the law, when in fact he had not.
Honest opinion
. The publisher can show the statement was the honestly-held opinion of the person making it, not a fact. This also includes things like reviews and spoofs.
Website comments.
The statement was a comment posted by someone else on the publisher's website.
Public interest.

The statement was on a matter of public interest (this replaces the so-called
Reynolds defence
).
This can get very complicated. If publishers can't show the statements were true, they can make a complex defence involving a number of points. They include whether it was in the public interest to make the statements, how far they went in trying to establish the truth of the statements and whether they gave the defamed person a right of reply.
Web publishers will now generally only be liable for defamatory comments made by others on their websites if they ignored a request to remove the statements. This applies to you if you blog, too.
This happened to me. A painter rang me up once complaining that someone had left a comment on my local news website, saying that his van was outside a local pub most afternoons.
Why would that be defamatory?
I just agreed to remove the comment, and that was the end of the matter.
Privilege.
Reports of certain public hearings and events. This has a couple of strands to it.
Proceedings in Parliament have
absolute privilege
. MPs can say what they like, and the media can report those statements, without fear of legal action, regardless of whether those statements are true or not.
In 2011, MP John Hemming named Ryan Giggs as a footballer who had taken out a court order (an
injunction
) to try to prevent his affair with ex-Big Brother star Imogen Thomas becoming public. The media was free to report Hemming's words under
absolute privilege
, getting round the injunction.
Absolute privilege
also applies to fair and accurate reports of court proceedings.
A defence of
qualified privilege
applies to other types of event, including council meetings, public meetings and press conferences.
But in cases of
qualified privilege
, the publisher must show that the report was fair and accurate, was published without malice and was on a topic of public interest. Before you actually go to report on a court case or council meeting, I'd recommend you read up on this area very carefully.
Academic and scientific journals.
The statement appeared in academic work that was 'peer reviewed' before it was published. This is new in the
Defamation Act 2013
.
This defence was prompted by a high-profile case involving the British Chiropractic Association, who sued science author Simon Singh over this 2008 Guardian article.
So, those six defences again.
Truth.
Honest opinion.
Public interest.
Website comments.
Academic and scientific journals.
Privilege: absolute and qualified.
Before we finish, I want to mention a case that has had a huge impact on the British media, from the BBC to Twitter.
In November 2012, BBC Newsnight ran a story alleging that a 'senior Conservative' was implicated in a child abuse scandal in north Wales.
The claims had been rumoured in media circles for many years. Soon, various Conservatives were being linked to the story by Twitter users.
On ITV's This Morning, Philip Schofield confronted David Cameron with a list of people being named on Twitter. The name of Lord McAlpine was visible on the paper.
Schofield and ITV later paid McAlpine £125,000 in damages, which he gave to charity.
Then, it was revealed the person making the Newsnight allegations had confused McAlpine with someone else. He withdrew them and apologised. It seemed nobody working on the Newsnight story had thought to show the man a picture of McAlpine.
Among them was Sally Bercow, the wife of the Speaker of the House of Commons. She tweeted: "Why is Lord McAlpine trending? *innocent face*"
Why might that be defamatory?
Then this happened.
The BBC agreed to pay McAlpine £185,000 in damages. He gave it to charity.
McAlpine's lawyers now turned to tweeters. They could theoretically have sued anyone who published McAlpine's name. In reality, they said they wouldn't take action if tweeters agreed to pay £25 to charity.
But McAlpine's team took more seriously the 20 or so 'high-profile' tweeters, those with more than 500 followers who had repeated his name.
Comedian Alan Davies and Guardian columnist George Monbiot were among them. They apologised publicly and privately, and Monbiot agreed to do charity work to make up for naming McAlpine (Davies had only retweeted the name, while Monbiot published the name in a tweet of his own).
But Bercow initially refused to settle, and the case went to court. The judge ruled that her use of "*innocent face*" in her tweet was defamatory. Bercow then agreed to apologise and pay damages.
This was the first case of its kind. It'll be fascinating to see what happens in future. But in the meantime - always think before you tweet.
An interesting recent example involved the website and social feed LAD Bible.
This went viral, and the Lad Bible soon backed down.
Why do you think they didn't pursue the action?
What might be defamatory here?
Full transcript