Defamation: The basics.

A guide to legal challenges faced by journalists today.

Matthew Henry on Burst.

Unknown to many, Journalists today face a wealth of legal issues, which can often lead to lengthy and expensive court battles if not avoided at all costs.

Defamation, in all its glory, is one of them.

“Defamation has been defined as a false publication calculated to bring a person into disrepute, or an attack on the reputation of another, and includes the ideas of calumny and aspersion by lying.” (Defamation defined)

What are the different types of Defamation?

1. Libel- regards permanent forms and is most commonly used for actions against the media. Libel is usually concerned with printed forms such as newspapers, magazines and publications on the internet.
2. Slander- is defined as a transient form of defamation. Usually concerned with speeches and non verbal actions. Slander tends not to be as common as Libel, largely due to it proving difficult to evidence in court.

Whilst knowing the different ways a defamation case can be formed is essential, it is also necessary to know what is required for a case to ever be lifted off the ground. Therefore, in order for a substantial case to be formed, claimants must prove several things.

The statement was defamatory

Claimants must be able to prove that the statement has the potential to ‘de fame’ them and have a damaging impact on their reputation. It is important to note here that a claimant does not have to prove a statement is a lie, only that it is defamatory; it is a given that the court will understand it to be a lie.

It has caused or is likely to cause serious harm

Defamation claimants must be able to prove that material has caused or has potential to cause serious harm to their reputation or their financial state. The law does not take into consideration a person’s feelings. But rather will look at whether the material will lower a person in the estimation of a right-thinking member of society. Co-operations and businesses, (profit making entities), will also have to provide evidence that material has caused significant financial damage. Again, it is important to note here that it is not always assumed that if a person you are writing about has an already existing bad reputation, that you cannot be sued to defamation. This is only the case if what you are writing about is on the same level as a previous allegation; and has no potential to lower the reasonable mans opinion. Thus resulting in the person proving difficult to provide a substantial case against you. As was the case with Moss v Channel 5.

Refer to the claimant

Defamation claimants must be able to prove that they are clearly identifiable in any material they believe to be defamatory. The law will not take into account whether the claimant is identifiable to personal relations, it will only regard whether they are visible and recognisable to the public eye.

Material publication

Material and statements in question must be published and accessible to the public. It is not substantial enough to make a defamation claim based on word of mouth. For example, overhearing a journalist speaking about an upcoming story they have, despite it containing defamatory material, until it is published claimants will not have a case.

So, you’ve been sued. What next?

While mediation has a 90% success rate in libel actions, it is not always necessary and more often than not you will have a defence which will help you win your case.

Here are the top 5 defences in my opinion, summarised.

1. Consent (leave and licence)

If you are using the defence of consent, then the publisher will have to evidence their claims that consent was gained to include defamatory material in their article. You will not be covered if the only consent gained was merely to be interviewed. A bribe, as such, will also not stand in court as a defence (saying if they do not consent you will publish the article regardless).

2. Truth

The definition of defamation solely relies on the publication of an in-factual statement. So, if you can prove what you said is factual and substantially true on the balance of probabilities, then it is not defamatory.

• Keynote: The ‘sting’ of a libel case regards the main defamatory part of a claim. So as long as you can prove that to be true, despite the minor details being inaccurate, then you cannot be successfully sued for defamation using the defence of truth.

3. Honest opinion

This applies to opinions and comments. If words such as “I think” or “I believe” are used, then a jury is more likely to favour your claim. In order to be successful you must be able to show that;

• The statement is in the form of an opinion.
• The statement had a basis that the opinion was formed on.
• The same opinion could be formed by an honest person.

4. Absolute privilege

This defence exists to cover freedom of speech. It is applied to certain, special situations which allow statements, no matter how malicious or untrue they are to be spoken. These situations are typical of parliamentary meetings.

• Key note: However, if you publish these untrue spoken words, you will not be covered by the defence of absolute privilege.

5. A matter of public interest

This defence protects the media and journalists when publishing statements on the basis of public interest, even if they are untrue. In section 4 of the Defamation act (2013) it states that it is a defence for defamation if the defendant can show that;

(a)the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b)the defendant reasonably believed that publishing the statement complained of was in the public interest.

An example of a successful defence against defamation (2020)

Headline from The Guardian article.

Hollywood actor, Johnny Depp, lost his libel case against News Group Newspapers (NGN), and its executive editor, Dan Wootton. This comes after they claimed he was a “wife beater”. Mr Justice Nicol, the ruling judge, concluded that;

“The Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true.”

The Sun successfully won their lawsuit by using the defence of truth, they were able to demonstrate that the story was accurate to a balance of probabilities.

With celebrity journalism on the rise, defamation is something all journalists should be aware of. It can cost fortunes and often lead to career ending reputations. While in 2018 it was recorded that 6% of QBD (Queen Bench Division) claims were made up of defamation cases; many can and usually are resolved privately and more than likely with huge cash pay-outs. Seeking legal guidance can be more economically beneficial in the long run and while it is not always guaranteed you will win your battle with a defamation lawsuit, a solicitor will be able to assist you in reducing the amount you are required to pay, if any at all!

Want to avoid a defamation case altogether? Check out Barrister Stephen Price’s 12 Golden rules for minimising the risks of getting sued for defamation.

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