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What the claimant must prove
In order to bring a defamation claim the person bringing the claim ("the
claimant") must prove that the person against whom the claim is brought
("the defendant") has published defamatory material about him
or her.
Defamatory allegation
A defamatory allegation is one that tends to make right-thinking people
think the worse of the claimant. In addition, allegations that would lead
people to avoid the claimant or expose the claimant to ridicule may be
defamatory even if they involve no moral blame.
Publication
Publication means communicating the allegation to another person or persons.
It could be one person, as in the case of a letter, or millions, as in
the case of a national newspaper. There is no restriction on the medium
in which the allegation is published. It could be published in writing,
electronically (e.g. the internet) or, in one instance, by putting a waxwork
of the claimant in the Chamber of Horrors.
Reference to the claimant
Generally the claimant will be named and the issue will not arise, but
an unnamed claimant who can be identified by other means as the target
of a defamatory allegation will be able to sue. So too might a person
who shares the same name as the intended target of the publication.
The difference between libel and slander
Defamation is the generic term for libel and slander. Where the defamation
is in writing or in some other permanent form it is a libel. Where it
is spoken or in some other temporary form it is a slander. In certain
slander claims it is necessary for the claimant to prove financial loss.
A claimant who proves these matters will win the case, unless the defendant
can establish one or more of the following defences.
Defences
The three most common defences are as follows:
Justification
This really means "truth". The defendant must show that the
allegation complained of is factual as opposed to comment (see below)
and is true or substantially true. Immaterial errors will not therefore
prevent the defence from succeeding. Whether an error is material or immaterial
is often a very subjective issue for the jury to decide, which involves
balancing the seriousness of what has been proved against the seriousness
of what has not been proved.
Fair comment
This defence protects statements of comments or opinion as opposed to
statements of fact. The word "fair" is inappropriate, because
the comment or opinion could be exaggerated or prejudiced provided it
is honestly held. The opinion however, must be based on facts that are
true or sufficiently true and relate to a matter of public interest.
Privilege
In certain circumstances, the law regards freedom of speech to be more
important than the protection of reputation and allegations that may be
false and defamatory will nevertheless be protected by the defence of
privilege. The most widely known examples are proceedings of the courts
and Parliament. However the defence is flexible and covers any situation
where it is felt to be of overriding importance that people should be
free to speak their mind, e.g. certain business communications and public
meetings.
There are two types of privilege. Absolute privilege is an unassailable
defence that only applies in certain limited cases. In contrast, the defence
of qualified privilege will be lost where the defendant has been malicious
(see below). The most common form of qualified privilege is where the
defendant has a "legal, moral or social duty or interest" in
making the publication and the recipients have a corresponding duty or
interest in reading or hearing them. A common example would be an employment
reference. More recently the courts have expanded the concepts of duty
and interest to protect the media when they publish material on a matter
of public interest which they reasonably believe to be true, but which
turns out to be false. The ambit of this category of qualified privilege
is, at present, uncertain. The second type of qualified privilege is in
respect of the publication of reports of various documents and proceedings.
These are set out in Schedule 1 of the Defamation Act 1996.
Malice
In the case of fair comment and qualified privilege, the defence will
be lost if the claimant can prove that the defendant has been motivated
by "malice". Malice means an improper motive for publication.
To establish malice it is usually necessary for a claimant to show that
the defendant knew that the publication was false or was indifferent to
its truth. So a person who makes a mistake in good faith is not guilty
of malice.
The remaining defences are as follows:
Secondary responsibility
The defendant has an innocent and secondary role in the publication of
the defamatory statement. (s.1 of the Defamation Act 1996). This is a
defence that may be available to internet service providers. It will be
lost as soon as the defendant is put on notice that he is disseminating
a defamatory statement.
Offer of amends
An offer to make amends volunteered by a defendant who published in good
faith, which is not accepted by the claimant.
Limitation
The claimant's action has been brought too late. There is a one-year time
limit for bringing a defamation claim.
Consent to publication
The claimant expressly or impliedly agreed to the publication taking place.
Accord and satisfaction (Waiver)
The claimant has expressly or impliedly agreed not to pursue an action
against the defendant.
Judge and Jury
Either party has the right to have the action tried by a jury, except
where there are large numbers of documents or complicated scientific inquiries.
In a jury trial most issues are decided by the jury, but the judge retains
power in certain circumstances to direct the jury to dismiss or uphold
all or part of a party's case if he believes that no reasonable jury could
reach a different conclusion. Furthermore, where a judge is satisfied
that either the claimant or the defendant has no realistic chance of success
at trial, he may dismiss the claim or enter judgment at an early stage
under what is known as the summary procedure.
If the claimant wins
A claimant who wins a defamation claim is generally entitled to an award
of damages and an injunction to prevent the defendant from publishing
the same or similar allegations.
Damages
It is very difficult to give an estimate as to the likely damages that
a jury might award in a defamation claim. The following factors are relevant.
(a) The seriousness of the defamatory allegation. In John -v- MGN,
Lord Bingham M.R. said "The more closely it [the defamation] touches
the plaintiff's [claimant's] integrity, professional reputation, honour,
courage, loyalty and the core attributes of his personality, the more
serious it is likely to be".
(b) The size and influence of the circulation.
(c) Whether the claimant has suffered any financial loss.
(d) Whether the claimant has suffered actual injury to reputation e.g.
exclusion.
(e) The conduct of the defendant. Where the defendant has behaved in
a high-handed manner or been guilty of misconduct, this can "aggravate"
i.e. increase the damages. In contrast, where the defendant has behaved
responsibly e.g. by promptly publishing an apology it can "mitigate"
i.e. reduce the damages. Where the defendant advances a justification
defence which fails this can substantially aggravate the damages even
if the defence is put forward in good faith.
(f) Where there is an element of truth in the publication, but not sufficient
to establish justification. If the jury believes that the justification
defence has only barely failed it could award only a nominal sum in
damages. Where it is proved that the claimant has a bad reputation this
can mitigate damages.
(g) The impression of the claimant on the jury. Although not strictly
legally relevant, jurors inevitably take into account their own feelings
about the claimant when assessing damages.
It should also be noted that the judge will inform the jury of the sort
of sums that are awarded for pain and suffering in personal injury cases.
The jury are not obliged to seek to compare the seriousness of the libel
with say, the seriousness of losing an eye, currently worth about £30,000.
Although, a jury will never give reasons, it appears that on occasions
an attempt is made to make a direct comparison with personal injury awards,
which can lead to a relatively small award. Alternatively, the jury might
simply regard the personal injury maximum of around £200,000 (for
quadriplegia) as a ceiling, not a comparator.
Injunction
This is a court order restraining the defendant from publishing the same
or similar defamatory allegations. A defendant who breaches the order
can be fined or sent to prison for contempt of court.
Apology
A judge or jury cannot force a defendant to apologise. However, where
the claimant succeeds under the summary procedure, the defendant can be
compelled to publish a summary of the court judgment. Furthermore, a newspaper
or magazine defendant is likely to be bound by the Press Complaints Commission's
Code of Conduct that requires them to report the outcome of libel proceedings
in which they are involved. Most actions settle before trial, in which
case, it is common for the defendant to agree to apologise, often in the
form of an agreed statement read in the High Court (which will be reported
by the media if the subject matter is of interest).
Costs
These will generally be paid by the defendant if the claimant wins and
vice-versa, although all of the costs of the winning party may not be
recoverable.
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The law of breach of confidence prevents the publication of secret
information given to or obtained by a person in confidence, at the instigation
of the person to whom the confidence is owed. The law can also be used
to restrain a third party who comes into possession of the information.
For example, where X tells Y something in confidence and Y repeats it
to a newspaper, X can restrain the newspaper from disclosing the information.
Many different types of information can be protected by the law e.g. trade
secrets, official secrets, medical records and details of sexual relationships.
In all cases, the information must be genuinely confidential.
The most important defence to an action for breach of confidence is known
as "public interest". This applies where the public interest
in disclosing the information outweighs the duty of confidence. It involves
a balancing exercise by the court. The most common application of this
defence is in the disclosure by an employee of wrongdoing by his or her
employer. In such a case, the general duty of confidence owed by the employee
to the employer is generally outweighed by the public interest in the
wrongdoing being disclosed.
The law of breach of confidence has to a certain extent been overtaken
by the incorporation of the European Convention on Human Rights into English
law in October 2000. Article 8 of the Convention states that "Everyone
has the right to respect for his private and family life, his home and
his correspondence". Recent judicial statements suggest that
the courts may be willing to prevent the publication of private information
and photographs even where there is no specific relationship of confidence.
Although the law is in a state of development there are a number of relevant
factors that it appears the court is likely to take into account in assessing
whether a person's privacy has been infringed. For example, the more intimate
the information the more likely the court will prevent publication. Where
there is a legitimate public interest in the information, this will be
a factor in favour of publication. Furthermore, a person who has given
interviews about his or her private life, thereby putting it into the
public domain, will find it harder to prevent others from publishing similar
information.
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Malicious falsehood is a similar type of claim to defamation. Put simply,
a malicious falsehood is a false statement published maliciously by the
defendant which either causes or is likely to cause financial loss to
the claimant. "Malicious" means, essentially, that the defendant
either knew that the statement was false or did not care as to its truth.
Malicious falsehood therefore has a number of disadvantages over defamation
for a claimant. Unlike defamation, a claimant must prove malice, falsity
and actual or likely financial loss.
The only advantage of malicious falsehood is that it can apply to any
statement whereas in defamation the statement must be defamatory in nature.
This is the one area in which it would be advisable to consider a malicious
falsehood action in place of defamation. There may be many statements
which can cause financial loss but which are not defamatory. For example,
to falsely say of a solicitor that he has retired, cannot be defamatory
but could be very damaging. If the solicitor could show that the statement
was made maliciously, he could bring an action for malicious falsehood.
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Contempt of court covers various activities, which can be said to
undermine the integrity of the legal process. A person guilty of contempt
can be fined or imprisoned. Contempt of court may impinge on media law
in a number of situations:-
Publication of material which might prejudice a fair trial
An obvious example is the publication of an accused's criminal record.
The law is primarily governed by the Contempt of Court Act 1981 ("CCA
1981"), which makes it an offence to publish material which creates
a substantial risk of serious prejudice to pending court proceedings.
Breach of a court order
Courts may make orders banning publication of all or part of proceedings.
Such orders are often challenged by the media. Publications in defiance
of such orders are a contempt of court.
Restrictions concerning minors
There are a number of statutory provisions restricting the reporting of
proceedings involving minors, the breach of which is a contempt of court.
A similar provision applies to complainants in rape cases.
Disclosure of sources
Occasionally, court orders are made compelling a journalist to disclose
his or her sources. A judge can only do so where disclosure is necessary
in the interests of justice or national security, or for the prevention
of disorder or crime (s.10 CCA 1981). Failure to disclose a source after
an order has been made is a contempt of court.
Publishing jury deliberations
s.8 CCA 1981 makes it a contempt to "obtain, disclose or solicit"
any part of a jury's deliberations.
Scandalising the court
This is an anachronistic common law contempt, which has been defined as
"any writing published which is calculated to bring a court or a
judge into contempt or to lower his authority". Despite the apparent
breadth of the offence there have been no recent prosecutions in the United
Kingdom.
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