a guide to media law
Media law - defamation

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 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.

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The three most common defences are as follows:

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.

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.

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.

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.

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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.

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.

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.

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).

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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Breach pf confidence and privacy  

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.

Malicious falsehood  

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  

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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The law of copyright restricts a person from copying another person's "creative" work. A creative work can include literary, musical, dramatic or artistic works. There is no requirement that the work be particularly original or creative in the ordinary sense, provided that sufficient effort has been put into creating it. Infringement of copyright is in essence the substantial reproduction of the work. Whether the reproduction is substantial is a matter of degree. The main defence to an infringement of copyright is "fair dealing" for the purpose of reporting current events or for criticism or review.

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