Defamation and Libel are key areas to know about for any journalist, as it is an easy trap to fall into at any time, and it’s all down to what and how things get printed in your articles. Although it has been a while since there was a notable libel or defamation case that has had a lot of coverage from the press anytime recently, that doesn't mean it hasn't happened on a large scale before. Such cases that have happened have been when ITN and Channel 4 news alleged that Dr Joe Rahamin of Devon was no good at his job in 2001. The preceding court case of defamation of his name in a public forum won Dr Rahamin £1 million in damages! Cases involving defamation and libel can result in numbers up to and including numbers like these, and in the case of famous celebrities, can result in figures higher than this. So its easy to see how cases involving Defamation and Libel can be a huge deal for the courts, and even more for any journalists involved (whether they're reporting on it or being accused of it!).
Another case, this time involving a high-name celebrity, in which defamation was a case taken to court was when a US Celebrity News magazine was taken to court by Britney Spears (who, let us not forget, does appear semi-naked in her videos a lot of the time in deliberately erotic ways...) when she tried to sue them for damages of up to $10 million after they wrote a comment/article on her sexual behaviour. As predicted, the court case failed, and no damages were paid. This goes to show firstly that anyone can sue anyone at any time over anything they find to be defamation. Secondly, cases involving people who are easily recognizable to the public can heighten the costs of damages to an incredible extent, AND they are more likely to sue BECAUSE they are more recognizable. And thirdly, it is proof that celebrities are NOT always above the law!
One case from a celebrity that did stick was when Heather Mills sued The Daily Mirror in 2002 and collected £50,000 from the case, and is now reporting a world record of £50 million in various damages to her name from her ex-husband Sir Paul McCartney. As an interesting note, it is impossible for Defamation or Libel cases to be taken to court over someone who is deceased - Dead people have no reputation to lose! Therefore, any defamation of someone who is deceased will be null and void. However, writing something about someone famous or with a good name to deliberately cause trouble or start violence IS cause for Libel.
Libel lawyers offer a very strict way of operating and are there to keep journalists safe from such kinds of cases. Libel lawyers know exactly what kinds of defamation can occur regularly and know how to defend against such cases of defamation and libel. The key is to know when a routine story becomes defamatory - for instance, the example we got given of a routine article contained a quote from someone which accused someone on the council of embezzlement, which would instantly be considered defamation.
A critical defence in any case or accusation of defamation or libel can be what is known as "responsible journalism". This consists of talking to both sides of the article in order to give accurate representation of each aspect of the article which you are writing. This way, all areas are covered, and no-one involved in the article is able to defend with "I was never spoken to" or anything along those lines. Responsible Journalism, and proof behind all your statements, is sometimes one of the best defences in any libel case there can be!
McNae states that the key things to remember on defamation include such things as:
è If what you are writing about "tends to..." (i.e. if there are any implications of any kind)
è Lower whoever the article involves in the estimation of right-thinking people.
è Causes them to be shunned or avoided.
è Disparages them in their trade or profession.
è Exposes them to hatred, ridicule or contempt.
These are all things which are considered to be classical definitions of DEFAMATION.Unintentional defamation is still possible to occur, no matter how careful you might be. In one case, a journalist was taken to court over defamation of a man named Artemis Jones, and entirely different man than the Artemis Jones that was referred to in the article that was written, but an Artemis Jones none-the-less. This, as it turns out, can still be illegal defamation.
Something else to be very considerate of is Reputation and Meaning. Reputation is something precious, especially if you are someone in public life, or have money or both, whereas someone’s "meaning" is when they would be interpreted as a "reasonable man" i.e. what they are as a person and what they stand for. Each of these can be easily jeopardised by a libellous article without accurate proof, or “responsible journalism”, and without assessing the whole context of the final written piece. McNae raises the famous case of Lorel Gowry and how in one particular article, due to a bad phrasing of one sentence, there was a clear innuendo that implied that he was snorting cocaine in his free time. Of course, this was only implied due to the phrasing of the sentence, but because a reputation is key to some people, you have to measure up how likely they are to sue over something like this unless you are sure.
The key to identifying risk of defamation is to remember the simple equation of:
PUBLICATION + DEFAMATION + IDENTIFICATION = LIBEL!
è Justification – i.e. “It’s true and I have proof that says so”
è Fair comment – an honestly held opinion based on facts or privileged material in the public interest (privileged material here meaning previously used material like court notes or interview records).
è Absolute privilege – court reporting notes which are Fair, Accurate, and Contemporaneous
è Qualified Privilege – quotes from the public or the presses.
è Bane and Antidote – where any kind of defamation is removed by the context of the material (say, if the material was a mock report to begin with).
è Apologies and Clarifications – sometimes saying sorry and clearing up your meaning is the best route!
è Reynolds Defence – the defence created by Albert Reynolds when he was under allegations of having misled parliament, but proof of responsible journalism won the case, as long as the material was in the public interest.
So, as an example of my own, say that I were to put in print “Justin Beiber is a talentless, vacuous tw*t who can’t sing, can’t dance, has stupid hair and doesn’t know what ‘German’ is.” That would absolutely be defamation in the highest, as it’s my opinion of him, I’ve put it in print and I haven’t gotten his side of anything in an interview. However, if in court I were to present the evidence of a radio interview with him in which he stated “What does ‘German’ mean? I don’t know what that is”, then the fact I’ve said that he doesn’t know what ‘German’ means would be true. Though I could still get sued for the fact I’ve called him “a talentless, vacuous tw*t” on the basis I have no other evidence to back that up with.
Another major case of defamation/libel was when the BBC famously reported on the Oryx Company being linked to Osama Bin Laden and laundering money. The report had to be abandoned after it became clear that no responsible journalism had been done and the BBC had been so eager to jump on these allegations for a report that they had not been to the company in the first place at all. They were so sure that the Oryx Company was behind the money laundering for Bin Laden that they felt no need to check the facts on the company, and the case could have cost the BBC up to £10 million in damages and legal costs!
The cases in which you are likely to have no defences are when:
è You have not checked your facts.
è You have not “referred up”.
è You have not put yourself in the shoes of the person or company you are writing about.
è You get carried away by a “spicy” scoop.
è You are not bothered to wait for a lawyer’s opinion.
è “When in doubt, leave it out!”
Once again, the key to avoiding any kind of legalities in journalism is recognising risk:
è Who am I writing about and could they sue?
è Is what I’m saying potentially defamatory in any way?
è Do I have a defence?
è And remember that lawyers never mind being asked anything, so if you have access to one, make sure that you take advantage of having them around!
And that closes off the session on Defamation and Libel – definitely one of the most interesting sides to media law, but also one of the easiest to fall into, so it will always pay to know as much as possible about this side of the journalism laws!
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