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Defamation

The law of libel in England and Wales is often thought to be the bane of the life of journalists and publishers. However, the law has to strike a balance between the competing public interests of free speech and protection of a person's reputation.

First steps
There are two:

1. Consider insurance - even if your publication is unexceptionable, someone may make a spurious claim and insurance will at least cover you against irrecoverable legal costs.
2. Establish a relationship with a lawyer who you can turn to for advice on copy, who understands your business.

   Definition

   A defamatory statement is one which lowers the person referred to in the estimation of right thinking members of society or may lead to their being shunned or avoided by others. A libel is a defamatory statement published in a permanent form, eg in a newspaper, magazine, film or broadcast. Slander is a defamatory statement in a non permanent form, eg an oral allegation. There are certain categories of allegations that are worth highlighting:

   • Criminal offences
     An allegation that a claimant has been guilty of a criminal offence.
   • Personal morality
     Allegations of dishonesty, bad treatment of family and friends, marital infidelity, racism, crude, anti-social and selfish behaviour are all capable of being defamatory.
   • Ridicule
     A less common category.
   • Finance
     An allegation of insolvency is defamatory, but merely to say that the claimant owes money without any implication that he is avoiding or delaying payment, or is unable to pay, is not defamatory.
   • Professions and trades
     Attacks on individuals' ability to perform their office, profession or trade.

   Defences

   Whenever you publish anything which might be considered to be defamatory you should consider whether you can establish one of the defences below. Keep the evidence on which you have based your decision for a minimum of 18 months including all drafts of the article, statements, tape recordings and notebooks. A claimant must commence a defamation action within one year of publication of the defamatory statement(s) which runs afresh on each repetition of the publication.

   1. Justification
      Justification means simply the truth - the defamatory statement is true or substantially true. Justification is both the best and worst defence. It is best because if it succeeds it is an absolute defence regardless of the reason for publication.
      
      It is irrelevant whether or not publication of the material was a breach of privacy or confidence or that it was offensive to the claimant. It is the worst defence because the defamatory statement is presumed to be untrue and the onus is on the defendant to prove the contrary.
   2. Fair comment
      The defence of fair comment on a matter of public interest is designed to preserve the fundamental rights of freedom of speech and expression. In a democratic society everyone is entitled to express genuinely held opinions on matters of public interest however strong or prejudiced those views may be.
      
      The defendant must overcome four hurdles to establish this defence:
      • the statement must be comment (ie opinion) and not a statement of fact;
      • the comment must have a sufficient factual basis (that is the comment must be based on facts which are themselves true);
      • the comment must be one that a "fair minded" man could honestly hold;
      • the subject matter of the comment must be a matter of public interest.
   3. Privilege
      Privilege is category of defence where the law recognises that it is better that individuals are free to speak their mind (and others to report what they say) without fear of being sued for defamation even if they get it wrong and the claimant's reputation is damaged. Privilege may be absolute or qualified.
      • Absolute privilege
        Absolute privilege is a complete defence and cannot be defeated even if the claimant proves that the defendant published the words maliciously (unlike qualified privilege). Statements made in judicial or quasi judicial proceedings and statements made in parliamentary proceedings are absolutely privileged.
      • Qualified privilege
        Qualified privilege will be a defence where the public interest in allowing publication outweighs the claimant's interest in protecting his reputation, unless the claimant proves malice on the part of the defendant. Statements or publications protected by qualified privilege can broadly be divided into two categories:
        • statements made by a person who has a duty, to make the statement or an interest in making the statement to a recipient or recipients having a duty or interest in receiving it; and
        • fair and accurate reports of certain proceedings, documents and statements.
      • Secondary responsibility
        The term 'publisher' includes distributors and printers. Although section 1 of the Defamation Act 1996 protects those who have only secondary responsibility they must demonstrate that they have taken sufficient care to rely on the defence, ie that:
        • he is not the author, editor or publisher of the statement complained of, or
        • he is only involved in providing a system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form. This is the defence that an internet service provider (or a chat room or message board provider) will seek to rely on if he 'innocently' publishes defamatory material. However it is essential for the provider to show that he has taken reasonable care and takes prompt action, if necessary;
        • he took reasonable care in relation to its publication and
        • he did not know and had no reason to believe that what he did caused or contributed to the publication of the defamatory statement.

   When a complaint is made

   1. First check the original article and consider the investigative work and material obtained prior to publication;
   2. where further investigative work needs to be done do it with urgency;
   3. do not fire off a letter to the claimant in anger stating an extreme position ie, "it's all true" - if later you find yourself unable to maintain a defence of justification the original letter will not look good in the eyes of a jury;
   4. ensure all those involved in writing and editing the story have been notified and are available to make statements and collate evidence at this early stage;
   5. preserve drafts or supporting documentary evidence;
   6. if you have libel insurance inform your insurers and comply with their requests;
   7. take legal advice as soon as possible and before making a response to the complainant - legal advice at this stage is normally inexpensive and can save a great deal of money in the long run.

   A new pre-action court protocol recommends that you respond within 14 days indicating whether you accept the claim or setting out the reasons for rejection. This is a most important letter which you should not send out without taking legal advice, except in the most straightforward cases.