Post by admin on Nov 29, 2004 16:52:24 GMT 1
This has cropped up a few times recently so I thought I would post what the situation is with English and Welsh Libel laws. The laws in Scotland are very similar apart from you have 3 years in Scotland to make a claim, one year in England and Wales, and in Scotland there is no jury. I hope it is of some help in making matters clearer.
Defamation
The law of defamation covers both slander and libel. Slander is defamation by word of mouth, libel is defamation made in permanent form. Television, film, radio, print and the internet are all considered permanent form. This means that defamatory words which are, as the law puts it, ‘published’ by these media are all classed as libel, not slander. This is the case even when the offending words are spoken, as on a live radio phone-in.
In court
Most libel cases are settled out of court and never come to trial. If a case does come to trial, the judge decides whether the words used are capable of defamatory meaning. Generally, the jury decides whether or not there has been a libel, whether damages should be awarded and if so, how much (although judges can now give guidelines on the amount).
When is a statement defamatory ?
A statement about a person is deemed to be defamatory if it does one of the following:
· exposes him or her to hatred, ridicule or contempt
· causes him or her to be shunned or avoided
· lowers him or her in the estimation of right-thinking members of society
· disparages him or her in his office, profession or trade
Implication
Libel can often happen by implication rather than design. If a television programme showed someone being arrested, the clear implication is that they have committed a criminal act - if they had not, they would have grounds to sue the programme makers, unless the commentary had made it very clear that he was found to be innocent.
Who can sue ?
The following can sue:
· individuals
· a corporation can sue for a publication that might injure its trading reputation. Furthermore, whether a corporation is trading or non-trading, it can sue in libel to protect its reputation, as long as it has a corporate reputation distinct from that of its members which is capable of being damaged by a defamatory statement. (A corporate body is defined as one that has rights and duties distinct from those of the people who form it.)
The following can't sue in certain circumstances:
· institutions of local or central government: in 1993 (Derbyshire County Council v Times Newspapers), the House of Lords held that institutions of local or central government could not sue for defamation in respect of their 'governmental and administrative functions' because this would represent an undesirable restriction on freedom of speech. However, they can still sue for libels affecting their property, or for malicious falsehood in any statements regarding their governmental and administrative functions, if they can prove malice. NB: it is still possible for individual members or officers of the council to sue !
· associations: in general, an association, such as a club, cannot sue for defamation unless it is an incorporated body (ie. a corporation formed for the purpose of carrying on a business). As before though, it is still possible for individuals to sue, and any statements that disparage an association are likely to reflect upon the reputations of individuals.
What the claimant has to prove
The claimant has to prove the following:
· Meaning: the claimant must prove that the statement is capable of bearing a defamatory meaning.
· Identification: the defamatory statement must be shown to refer to the claimant - at least in the eyes of a reasonable person.
· Publication: the claimant must prove that the statement has been published or broadcast to a third party.
What the claimant doesn’t have to prove is equally significant:
· He doesn’t have to prove that the statement is false.
· He doesn’t have to prove any intention to discredit. · He doesn’t have to prove any damage to his reputation. Some damage will be assumed, if the offending item has been published or broadcast.
Identification
For a libel case to succeed, the defamatory statement must be seen to refer to the claimant, even if that was not the journalist’s intention. Leaving out someone’s name is no guarantee of avoiding defamation, as there may be other clues that could lead to their identification.
Don’t generalize !
Not naming anyone can be equally problematic. For example, if you reported that "one of the partners of Pockton Holdings was involved in the insider dealing scandal", each of the partners of Pockton Holdings could argue that the statement could reasonably be taken to refer to him or her and they could all sue for libel.
If you said that all estate agents were crooks, the category is so wide that no single firm could say it had been defamed. But if you referred instead to a smaller group, say to all the estate agents in the local area, each of these could claim they had been defamed.
Example: The News of the World published an article alleging that Banbury CID had been involved in a rape. Each member of tthe CID was able to sue because there were only five of them and each could claim that the article could be held to refer to him. They all won substantial damages.
Meaning
Regardless of whether the journalist intended it or not, if a statement is understood by a reasonable man or woman to be defamatory, the journalist is guilty of defamation. A statement that is apparently innocuous may carry an inference that is defamatory.
In 1995, The Sunday Times carried a story which alleged that Michael Foot, the former labour leader, had been an agent of influence for the KGB, working under the code-name of agent Boot. A former KGB man, Oleg Gordievski, had provided most of the material for the article. Michael Foot was deeply hurt by the allegations and he issued a writ for libel.
The Sunday Times admitted that it had named Mr Foot as an unwitting agent of influence, but the newspaper said that it honestly believed that it was not accusing Mr Foot of being a KGB spy. To most readers though, or in legal terms, to the reasonable man or woman, the article’s meaning was that Mr Foot was a spy who had supplied information to the KGB. Michael Foot won the case and was awarded substantial damages.
Innuendo
Even if a statement seems innocuous on the surface, it could be interpreted as defamatory to those with special knowledge.
In 1986, Lord Gowrie, a former Cabinet Minister sued The Star newspaper over an article which implied that he took drugs.
He had resigned the previous year from his post as Minister for the Arts, and The Star newspaper, under the headline 'A lordly price to pay', stated: "There's been much excited chatter as to why dashing poetry-scribbling Minister Lord Gowrie left the Cabinet so suddenly. What expensive habits can he not support on an income of £33,000 ? I'm sure Gowrie himself would snort with disgust at suggestions that he was born with a silver spoon round his neck."
Lord Gowrie's counsel argued that: "The reference to Lord Gowrie's expensive habits, the suggestion that he was unable to support those habits on his ministerial salary, the use of the word 'snort' and the reference to a 'silver spoon around his neck' all bore the plain implication, to all the many familiar with the relevant terminology, that Lord Gowrie was in the habit of taking illegal drugs, in particular cocaine, and had resigned from the Cabinet because his ministerial salary was insufficient to finance the habit."
Lord Gowrie won 'substantial damages'.
Picture libel
Since libel often happens by implication, TV Producers in particular have to be careful with the pictures they use to illustrate their stories. It is all too easy for busy reporters to put misleading words over library pictures.
Repetition
Repeating libels, ie quoting someone else’s words, is not safe. If you say: "His trainer, John Smith, said that the player had in fact been taking drugs for some time.", you have uttered the defamatory words, even though you are attributing them to someone else. (This does not apply to reporting on the proceedings of a court case - see Privilege.) What about a libel which has already been published ? It may have been sued upon first time around, or it may have slipped past unnoticed. Whatever the case, it is not safe to repeat it.
For example: on the publication of cricketer Ian Botham’s autobiography in hardback, two policemen who had found cannabis at his home sued the publisher for allegations about the way they had questioned the cricketer’s wife. They won their case, and when the paperback edition came out, repeating exactly the same allegations, they sued again - and won a second time. So far as the law is concerned, each publication is a fresh publication of the defamation and can be sued upon.
Libel laws apply to anything published on the internet.
Defamation
The law of defamation covers both slander and libel. Slander is defamation by word of mouth, libel is defamation made in permanent form. Television, film, radio, print and the internet are all considered permanent form. This means that defamatory words which are, as the law puts it, ‘published’ by these media are all classed as libel, not slander. This is the case even when the offending words are spoken, as on a live radio phone-in.
In court
Most libel cases are settled out of court and never come to trial. If a case does come to trial, the judge decides whether the words used are capable of defamatory meaning. Generally, the jury decides whether or not there has been a libel, whether damages should be awarded and if so, how much (although judges can now give guidelines on the amount).
When is a statement defamatory ?
A statement about a person is deemed to be defamatory if it does one of the following:
· exposes him or her to hatred, ridicule or contempt
· causes him or her to be shunned or avoided
· lowers him or her in the estimation of right-thinking members of society
· disparages him or her in his office, profession or trade
Implication
Libel can often happen by implication rather than design. If a television programme showed someone being arrested, the clear implication is that they have committed a criminal act - if they had not, they would have grounds to sue the programme makers, unless the commentary had made it very clear that he was found to be innocent.
Who can sue ?
The following can sue:
· individuals
· a corporation can sue for a publication that might injure its trading reputation. Furthermore, whether a corporation is trading or non-trading, it can sue in libel to protect its reputation, as long as it has a corporate reputation distinct from that of its members which is capable of being damaged by a defamatory statement. (A corporate body is defined as one that has rights and duties distinct from those of the people who form it.)
The following can't sue in certain circumstances:
· institutions of local or central government: in 1993 (Derbyshire County Council v Times Newspapers), the House of Lords held that institutions of local or central government could not sue for defamation in respect of their 'governmental and administrative functions' because this would represent an undesirable restriction on freedom of speech. However, they can still sue for libels affecting their property, or for malicious falsehood in any statements regarding their governmental and administrative functions, if they can prove malice. NB: it is still possible for individual members or officers of the council to sue !
· associations: in general, an association, such as a club, cannot sue for defamation unless it is an incorporated body (ie. a corporation formed for the purpose of carrying on a business). As before though, it is still possible for individuals to sue, and any statements that disparage an association are likely to reflect upon the reputations of individuals.
What the claimant has to prove
The claimant has to prove the following:
· Meaning: the claimant must prove that the statement is capable of bearing a defamatory meaning.
· Identification: the defamatory statement must be shown to refer to the claimant - at least in the eyes of a reasonable person.
· Publication: the claimant must prove that the statement has been published or broadcast to a third party.
What the claimant doesn’t have to prove is equally significant:
· He doesn’t have to prove that the statement is false.
· He doesn’t have to prove any intention to discredit. · He doesn’t have to prove any damage to his reputation. Some damage will be assumed, if the offending item has been published or broadcast.
Identification
For a libel case to succeed, the defamatory statement must be seen to refer to the claimant, even if that was not the journalist’s intention. Leaving out someone’s name is no guarantee of avoiding defamation, as there may be other clues that could lead to their identification.
Don’t generalize !
Not naming anyone can be equally problematic. For example, if you reported that "one of the partners of Pockton Holdings was involved in the insider dealing scandal", each of the partners of Pockton Holdings could argue that the statement could reasonably be taken to refer to him or her and they could all sue for libel.
If you said that all estate agents were crooks, the category is so wide that no single firm could say it had been defamed. But if you referred instead to a smaller group, say to all the estate agents in the local area, each of these could claim they had been defamed.
Example: The News of the World published an article alleging that Banbury CID had been involved in a rape. Each member of tthe CID was able to sue because there were only five of them and each could claim that the article could be held to refer to him. They all won substantial damages.
Meaning
Regardless of whether the journalist intended it or not, if a statement is understood by a reasonable man or woman to be defamatory, the journalist is guilty of defamation. A statement that is apparently innocuous may carry an inference that is defamatory.
In 1995, The Sunday Times carried a story which alleged that Michael Foot, the former labour leader, had been an agent of influence for the KGB, working under the code-name of agent Boot. A former KGB man, Oleg Gordievski, had provided most of the material for the article. Michael Foot was deeply hurt by the allegations and he issued a writ for libel.
The Sunday Times admitted that it had named Mr Foot as an unwitting agent of influence, but the newspaper said that it honestly believed that it was not accusing Mr Foot of being a KGB spy. To most readers though, or in legal terms, to the reasonable man or woman, the article’s meaning was that Mr Foot was a spy who had supplied information to the KGB. Michael Foot won the case and was awarded substantial damages.
Innuendo
Even if a statement seems innocuous on the surface, it could be interpreted as defamatory to those with special knowledge.
In 1986, Lord Gowrie, a former Cabinet Minister sued The Star newspaper over an article which implied that he took drugs.
He had resigned the previous year from his post as Minister for the Arts, and The Star newspaper, under the headline 'A lordly price to pay', stated: "There's been much excited chatter as to why dashing poetry-scribbling Minister Lord Gowrie left the Cabinet so suddenly. What expensive habits can he not support on an income of £33,000 ? I'm sure Gowrie himself would snort with disgust at suggestions that he was born with a silver spoon round his neck."
Lord Gowrie's counsel argued that: "The reference to Lord Gowrie's expensive habits, the suggestion that he was unable to support those habits on his ministerial salary, the use of the word 'snort' and the reference to a 'silver spoon around his neck' all bore the plain implication, to all the many familiar with the relevant terminology, that Lord Gowrie was in the habit of taking illegal drugs, in particular cocaine, and had resigned from the Cabinet because his ministerial salary was insufficient to finance the habit."
Lord Gowrie won 'substantial damages'.
Picture libel
Since libel often happens by implication, TV Producers in particular have to be careful with the pictures they use to illustrate their stories. It is all too easy for busy reporters to put misleading words over library pictures.
Repetition
Repeating libels, ie quoting someone else’s words, is not safe. If you say: "His trainer, John Smith, said that the player had in fact been taking drugs for some time.", you have uttered the defamatory words, even though you are attributing them to someone else. (This does not apply to reporting on the proceedings of a court case - see Privilege.) What about a libel which has already been published ? It may have been sued upon first time around, or it may have slipped past unnoticed. Whatever the case, it is not safe to repeat it.
For example: on the publication of cricketer Ian Botham’s autobiography in hardback, two policemen who had found cannabis at his home sued the publisher for allegations about the way they had questioned the cricketer’s wife. They won their case, and when the paperback edition came out, repeating exactly the same allegations, they sued again - and won a second time. So far as the law is concerned, each publication is a fresh publication of the defamation and can be sued upon.
Libel laws apply to anything published on the internet.