Defamation

1
Defamation
Lincoln School of Journalism

• The Reynolds Defence
• Responsible Journalism and the Duty to Publish

2
Defamation Defences

• A range of defences are open to anyone accused of
  defamation
• Justification
• Absolute Privilege
• Qualified Privilege
• Fair Comment

3
Justification

• Relatively straightforward as a defence
• The statement is true!
• Usually demonstrated by the interpretation of the
  words used
• Lewis v Daily Telegraph 1963 2 All ER 151
• Claimant not allowed to extend the meaning of
  under investigation to an assertion of guilt
  (under investigation was correct)

4
Justification The Sting

• Wakeley v Cooke (1849) 4 Exch 511
• Defendant called claimant a libellous
  journalist
• Claimant had once been successfully sued in libel
  
• Sting implied that claimant was habitually
  libellous (not justified)

5
Failed Justification

• Persistently attempting to justify the statement
  can result in republication of the original
  dematory material
• Aldington v Watts and Tolstoy (unreported)
• Aggravated damages may be awarded
• Kiam v MGN 2002 2 All ER 219

6
Fair Comment

• The law extends considerable opportunity in
  expressing opinions
• Criticism of matters, of public interest, in the
  form of comment upon true or privileged
  statements of fact, such comment being made
  honestly by a person who did not believe the
  statement to be untrue and who was not otherwise
  actuated by malice
• 
  Street on Torts p.479

7
Fair Comment

• Public Interest
• Activities of central and local government
• Activities of opposition parties
• Activities of political lobby groups
• Institutions of religion
• Anything in the public domain
• Not private morality!

8
Fair Comment

• Kemsley v Foot 1952 AC 345
• Lower than Kemsley
• Michael Foot successfully relied on the defence
  of fair comment based on facts (implied and true)
• Kemsley Press had a bad reputation

9
The Responsible Journalist

• The appropriate test of the responsible
  journalist
• Loutchansky v Times Newspapers 2002 1 All ER 652

10
Responsible Journalism

• Common law Qualified Privilege
• Protects freedom (duty) to make statements to
  protect interests
• Private Interests
• Public Interest

11
Public Interest

• Reynolds v Times Newspapers Ltd 1999 4 All ER
  608
• Responsible investigative journalism and
  allegations of political misconduct

12
Private Interests

• Watt v Longsdon (1930) 1 KB 130
• Defendant informed the board of directors and the
  wife of the claimant of financial and sexual
  misconduct
• Duty, and therefore freedom to inform board of
  such conduct (reciprocity)
• Not to inform the wife (no duty)

13
Loutchansky v Times Newspapers 2002 1 All ER 652

• The interest was that of the public in a modern
  democracy in free expression and, more
  particularly in the promotion of a free and
  vigorous press to keep the public informed. The
  corresponding duty on the journalist, and equally
  his editor, was to play his proper role in
  discharging that function

14
Reynolds v Times Newspapers 1998 3 All ER 961

• Journalistic Duty
• To inform the public about matters of public
  interest
• A right to tell the story
• A right to hear it
• Fundamental in freedom of speech

15
Reynolds v Times Newspapers 1998 3 All ER 961

• Journalistic duty recognised by the courts
• As it is the task of the news media to inform the
  public and engage in public discussion of matters
  of public interest, so is that to be recognised
  as its duty. The cases cited show acceptance of
  such a duty

16
HL (2002 2 AC 127)

• House of Lords affirms principle that debating
  issues in the public interest is a duty
• Lord Nicholls sets out circumstances guiding
  judges in determining duty and public interest
  tests
• Providing media with the defence

17
Circumstances

• 1. The seriousness of the allegation
• 2. The nature of the information
• 3. The source of the information
• 4. The steps taken to verify
• 5. The status of the informant

18
Circumstances

• 6. The urgency of the matter
• 7. Whether comment was sought from the
  claimant
• 8. Whether the article contained the
  claimants side of the story
• 9. The tone of the article
• 10. The circumstances of the publication

19
Applying the Circumstances

• Judges will go through the circumstances
  systematically
• To attach weight to any relevant factors
  accordingly
• Lord Nicholls made clear his list was not
  exhaustive

20
Reynolds

• The House of Lords in Reynolds determined that
  the the privilege existed
• But it also made clear that the Sunday Times
  could not rely on it
• Journalist failed on point 4 and point 8
• The Journalist had not been responsible

21
Jameel (Mohammed) and Another v Wall Street
Journal Europe SPRL (2006) TLR Oct 12

• Allegations regarding payments to terrorists
• No longer a requirement to seek comment from the
  plaintiff
• No longer necessary to include the plaintiffs
  side of the story
• Reciprocity between publisher and reader still
  required

22
Jameel (Mohammed) and Another v Wall Street
Journal Europe SPRL (2006) TLR Oct 12

• a different jurisprudential creature from the
  traditional form of privilege
• It might be more appropriately called the
  Reynolds Public Interest Defence
• 
  Per Lord Hoffmann

23
Express Malice and Privilege

• Statements motivated by malice defeat privilege
• Statements known by the defendant to be untrue
  defeat the defence of qualified privilege
• Personal spite or ill will defeats privilege
• Horrocks v Lowe 1975 AC 135

24
Amends

• Defence under Defamation Act 1996
• Any party guilty of defamation may make offer of
  amends
• Generally
• In respect of defamatory meaning (qualified
  offer) s.2(2)

25
Amends

• Offer must be in writing
• Expressly offering amends under s.2(3) of the
  Defamation Act 1996
• Make suitable apology
• Publish a correction in a reasonable manner
• Pay compensation and costs (as agreed or ordered)

26
Amends

• If a defendant has first entered on of the
  traditional defences such as qualified privilege
  
• After proceedings have been brought
• An offer of amends is no longer possible by
  s.2(5) Defamation Act 1996

27
Amends

• When an offer is accepted it is a bar to
  proceedings
• If the offer is not accepted it will be a defence
  to proceedings

28
Amends

• Protects inadvertent defamation
• Considerably lessens any award of damages
• The claimant is at risk of losing any action
  should he unreasonably refuse the offer
• Claimant has burden of proof that the defendant
  had knowledge that the inadvertent defamation was
  untrue

29
Amends

• Even in cases where the defamation was not
  inadvertent
• Amends avoids cost, stress uncertainty in
  proceedings and delay in obtaining settlement
• Retraction and apology more important than damages

30
Civil Procedure Rules 1999

• Lord Woolfs reforms on civil procedure
• From Access to Justice (1986)
• Introduce the concepts of Alternative Dispute
  Resolution into English legal System

31
Alternative Dispute Resolution

• Potential litigants have access to the
  information and the range of services they need
  to understand their rights and responsibilities,
• avoid legal problems where possible, and where
  not, to resolve their disputes effectively and
  proportionately.

32
Benefits of ADR

• Increasing advice and assistance to help people
  resolve their disputes earlier and more
  effectively
• Increasing the opportunities for people involved
  in court cases to settle their disputes out of
  court and
• Reducing delays in resolving those disputes that
  need to be decided by the courts.

33
ADR in Practice

• It is now necessary before commencing proceedings
  to consider whether Alternative Dispute
  Resolution (ADR) is appropriate and if so take
  steps to enter ADR.
• If litigants unreasonably refuse to attempt ADR
  this can be taken in to account on the question
  of costs.