Defamation and Libel

Last year, new laws were put into place to change the way that the Defamation Act works slightly. These changes were rather positive for journalists and the media as they provide us with some sort of protection against libel defamatory cases.

A famous libel case was the 'Sally Bercow' tweet situation where Lord Mcalpine was defamed by the BBC News night programme. They didn't actually name him specifically but they set off a chain of speculation that went round social media and lead to his name being uncovered. The BBC initiated the speculation as they gave pieces of information to the public that were then pieced together and lead to Lord Mcalpine. This is known as jigsaw identification where a company or a few institutions in the media reveal specific details such as occupation, age, where your from that give the public the ability to piece it all together.

It is important to remember however that juveniles under the age of 18 cannot be named in court proceedings. http://www.mirror.co.uk/news/world-news/india-gang-rape-victims-father-1521289#.UukPcf1KOFI  In this case, reported in 'The Sunday People' back in January last year, his daughter was only referred to in reporting as 'India's daughter'. However with the permission of her dad as she was 17, the paper was allowed to name her for the first time after her death due to being gang raped.

We also need to consider inference which is what we draw from a statement as right thinking people. So if you think people will be able to establish who someone is by details you have, you shouldn't reveal them. An example of this would be within insider trading; where someone has inside knowledge of a deal that no one else in the public has. Morrison's were going to do a deal with Ocado last year and so the director of Morrison's went and brought a lot of shares in Ocado as he knew that their trade was going to rise. This is using market knowledge that no one else has or knows about to your advantage which is a criminal offence.

The actual meaning of defamation is if you write or broadcast something that 'tends' to lower someone in the estimation of right thinking people. If it causes them to be shunned or avoided or disparages them in their business, trade or profession. Or, if it exposes them to hatred, ridicule or contempt basically damaging their reputation. In the new Defamation Act these particular cases are less likely to have a jury present in them as the costing is too high. This is a shame for journalists as these stories used to make interesting, good ones to report.

One of the biggest defamatory cases was Chris Jefferies, where his reputation was completely destroyed during the Jo Yeates murder investigation where he was proven innocent. 

There is now a defamation via pictures act that will prevent a common danger in TV broadcasting. If you have careless use of background shots with a voice over what you are saying can be extremely defamatory to what the viewers are seeing on the screen. You must be careful not to identify people or company names or well known buildings. This should be especially avoided in stories such as sex abuse, fraud and all of the hard news. Shots of children cannot be used at any time unless permission from the school/ parents has been granted. But they should never be used in connection with some of the hard news topics. Instead broadcasters go around this by using blurred images and feet/ shoes. Referring back to last weeks point in the Mikaeel Kular trial reporting, where there are limited images of his mother; this is due to the Scottish law being hot on identifying someone if they have been charged.

Peoples reputation is precious, especially if you are in the public eye all of the time and have money. You need to think about who you are talking to and weather or not they are likely to sue you. You should look at your story and its meaning and see if a 'reasonable man' would find it defamatory or not. If the case comes to court there is still a chance that it may be put in front of a jury, even though it is a civil case. You should always ask someone else to read your work for you to avoid this happening and to get their opinion on it.

Publication+ Defamation+ Identification= Libel

There are some libel defences which  can be used in court.

1. A statement must cause 'serious harm' due to the new act 2013. In the case of someone that trades for profit it is not 'serious harm' unless it causes them to or they are likely to suffer serious financial loss.
2. Truth this used to be 'justification' and needs to be proven somehow.
3. Honest opinion must be free from malice so it is better if you are disinterested in the topic. You must show it is an opinion held by an 'honest person' based upon known fact at the time of writing.
4. Public Interest is if the defendant believes the issue is in the public interest. This is similar to the old 'Reynolds Defence' and covers mainly public safety areas.
5. Web Publication is a big part of the new act and is a defence for the operator. It needs to show that it was not them that published the article. It concentrates on the point that if you are made aware of something and you do not respond then you can be in trouble. For instance if we were made aware of something on WINOL such as a fact being incorrect, we would need to respond to this.

Other minor defences include: bone and antidote which is when defamation is removed by the content. You start by slagging something off but further down the article you talk positively of them.

There is no defence when you haven't checked your facts, or if you haven't 'referred up' which is check with the editor. You also have no defence if you have not put yourself in the shoes of the person/ company you are writing about. Do not get carried away by a 'spicy story. If you haven't heard back from the legal lawyers, do not publish something. Hold it back until you get the clear from them as it could cause you serious damage.

You should always recognise risk, who you are writing about and weather they are likely to sue, is the piece potentially defamatory? Do you have a defence? Ask the lawyer and the main thing is to get your story right!

Looking at the legislation website: http://www.legislation.gov.uk/ukpga/2013 goes into more detail of the points talked about above. It also highlights the protection of people writing journals if it relates to a scientific or academic matter. This is because large companies had started to try and sue people that wrote journals even though it was unlikely that they were causing them 'harm'.