_a guide to UK libel laws

Making sure you don't fall fowl of UK libel laws

 

LIBEL
Libel is the publication of a statement which exposes a person to:
Hatred, ridicule or contempt
or which causes him to be shunned or avoided
or which has a tendency to injure him in his office, trade or profession in the estimation of right-thinking members of society generally

Libel is all about words that damage a person's reputation in the eyes of reasonable people. The great question when you consider a libel action: "Is what I have written basically true? If it is not true in substance and in fact then you will be deprived of the two classic defences:
* Justification - you are justified in damaging a reputation because what you are saying is true.
* Fair Comment - the comment complained of has to be based firmly on fact.

The other great defence is Privilege - the recognition by the state that sometimes a person's reputation must be allowed to be wrongly defamed in the greater interests of free speech and open justice. Until recently Privilege, as far as the Press was concerned, was largely confined to foreseeable occasions where the need for free speech is paramount. These occasions are listed in the 1996 Defamation Act. In 1999 a judgment of the House of Lords in the case of Reynolds v Times Newspapers afforded the Press the chance to gain Privilege outside those occasions for public interest stories about events which no one could possibly foresee.

Most libels occur through carelessness or ignorance or the Press going out on a limb with a story that is not 100 per cent right. If the journalists and their lawyers do their jobs properly there should be little danger. It is when assumptions are made or people get careless that the writs start to fly.

ASSUMPTIONS AND BLOOMERS THAT LEAD TO WRITS
"It's not us saying it - we're just quoting him." One of the most common causes of libel actions is repeating statements made by people you interview and not being able to prove the truth of what they told you. In the early 90s newspapers had to pay damages to the Birmingham Six after they quoted former members of the West Midlands police as saying: "In our eyes their guilt is beyond doubt."

"We're only denying a rumour." It is dangerous to repeat a defamatory rumour in any circumstances unless the newspaper is in a position to prove it is true. It is even dangerous to repeat the rumour for the bona fide purposes of contradicting it.

"We gave a fair show to both sides." Not enough - you still printed a libelous statement even if you let the person give his side of the affair.. The only safe way is not to print the libel unless you can prove it is true.

People add 2+2 and make 5: Example: An IRA terrorist blows himself up on a bus. Another badly injured Irishman is lifted from the wreckage and rushed to hospital and placed in a small ward guarded by armed detectives. The police givethe press those bare facts. The press draw conclusions and report: "Bus bomber under police guard. IRA man dies and accomplice injured." The unfortunate Irishman had nothing at all to do with the bomber. He was totally innocent. He sued a number of papers before he died.

Careless Adjectives: Rumours had been circulating that 'tycoon' Owen Oyston was being investigated by the police. A junior reporter, having listened to the gossip, wrote the caption: Disgraced tycoon Owen Oyston. At that time Oyston did not have a stain on his character. He had never been officially 'disgraced'. He sued and the paper settled out of court. Shortly afterwards Oyston went down for six years for sex offences. The paper can't get its money back - it's the person's reputation at the time of publication that matters.

One assumption that used to be wrong but now has a grain of truth to it because of the Reynolds case: "It's in the public interest." (Details later)

WORDS
Libel is all about words. Words must be taken in the context in which they are used
The test of what the words mean is the test of the reasonable man - not the meaning intended by the person who wrote the words
Example: Radio City in Liverpool were sued for calling a travel agent a con-man. They said it meant the agent deceived "some at least of his customers". The travel agent said the words meant he was habitually dishonest or cynical. Radio City produced 19 witnesses who said they had had lousy holidays. The travel agent produced 21 who said their holidays were fine. The travel agent won £350,000 damages plus costs.

When weighing up a story think of words as three-stage rockets.
Stage One: The literal meaning. Be careful not to rely solely on proving the defamatory description was literally true. If you call a man a thief in screaming headlines and his conviction was for stealing a packet of biscuits a couple of years ago you could be in trouble. The words have to be commensurate with the offence. A Liar has to be a serial liar, a mega-liar, not a fibber like you or me. Beware of raking up a long buried past which may suggest that a stain on the person's character still exists. What is at stake is the person's reputation today and not the reputation he has since lived down as in the case of John Profumo.

Stage Two: The inference a reasonable person would draw from the word. Example: 'Tory boss Archer pays off vice girl.' Literally true and the News of the World could prove it. But they couldn't prove the inference that Archer had had a sexual relationship with the prostitute. It cost the paper £50,000.

Stage Three: Innuendo the words may not be defamatory to everyone but they are to a smaller group of people who are aware of additional facts or circumstances. Example: To say Mr Smith is a socialist is not obviously defamatory but if readers know that he is member of the Conservative Party it might be defamatory because it imputes he is politically dishonest.

IDENTITY
To win a case for libel the plaintiff must prove:
1. The words complained of are defamatory.
2. The words complained of refer to him.
3. The words complained of have been published to a third party.

The test for identity: "Are the words such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to."

"We're safe if we don't name them." Not always. All a claimant has to demonstrate to the court is that his family and friends understood the offending article to refer to him. Therefore if , say, you allege that an unnamed police constable, aged 30, working out of the town's central police station, had mistreated a prisoner in the cells, there is the chance of all the constables in their 30s at the station suing. During the 1980s and 90s the Police Federation made good use of this aspect of libel law. The more detailed the description the better. Get the constable named in an official police statement - that way it's privileged. (see Privilege later)

Group Defamation: The law allows groups of people, rather than individuals, to sue as a body but the courts keep the numbers as low as possible. Example: If you wrote "All lawyers are crooks" then plainly all the members of the legal profession could not sue because the reasonable man would know that many lawyers could not be crooks. But when a former policeman alleged that he had been forced out of a police dog-handling team because of anti-semitism, all 12 members of the team sued for libel and won. Watch out for similar small groups like trustees, school governors, etc.

 

DEFENCES
JUSTIFICATION
(we are justified in printing this because it is true)
When a case comes to court the law starts with the presumption that the words complained of in the newspaper are false. It is up to the newspaper to prove they are true. It has always been a complete answer for a civil action for defamation to prove that the words complained of are true in substance and in fact. The plea of justification must be broad enough to cover every libelous imputation in the statements. Where the words complained of give rise to an inferential meaning ( as in Archer above) it is not sufficient to prove they are literally true. Justification is theoretically the simplest form of defence but at the same time it is certainly the most dangerous. An unsuccessful plea of justification could increase the damages. The jury is entitled to take into account in assessing the damages everything that takes place right up to the moment when they retire to consider the verdict and compensate the plaintiff - not only for the actual defamation but for the insult to him , with all the attendant publicity of the newspaper arguing in court that what they wrote was correct. Getting just a bit of it wrong: The position of a defendant faced with justifying several distinct charges is eased to some extent by the Defamation Act which says you do not necessarily have to prove them all. If, for instance, you call a man a murderer, rapist, arsonist, thief and liar and can prove the first four but not the fifth then the defence is probably OK because wrongly adding the label liar to a man you can prove to be a murderer, rapist, arsonist and thief is hardly likely to damage his reputation. One drawback with this defence is that it is the plaintiff can cherry pick. In the example above he may choose to sue only on the allegation that he is a liar. The newspaper would not then be free to advance evidence about him being a murderer and so on.

FAIR COMMENT
(the facts are true and the comment on those facts is fair)
Fair comment defends opinions which by their nature cannot be true or false. To be covered by the defence of Fair Comment these opinions must be:
1. Based on fact
2. In good faith
3. Without malice
4. On a matter of public concern

1. Fact:
a. You may accurately report what some public person has done and then say: "Such conduct is disgraceful" or b. Without reporting what the man has done identify the conduct with a reference the reader can understand. The important thing is that you enable your readers to judge for themselves how far your opinion is well founded.

There are two exceptions
1. Where the comment is based on privileged material such as a report of a court case and the facts mentioned in the report later turn out to be untrue.
2. A plea of Fair Comment will not fail because of some unimportant inaccuracy in the facts on which the opinion is based - a wrong date or place or a slight misrepresentation of an incident.

2. Good Faith: The defence will not succeed unless the jury is satisfied that the comment is one that an honest-minded man could make on the facts. The one question that does not have to be answered is whether the comment is fair in the generally accepted sense of reasonable, just or moderate. The test is: "Would any honest man, however prejudiced he may be, however exaggerated or obstinate his views, have said what this criticism has said? Is the comment relevant to the facts"? The jury may think the comment is entirely wrong but if they are satisfied it is honest the defence will work.

3. No malice: Evidence of lack of honesty on the part of the newspaper is called express malice - spite or ill will or some other wrong or improper motive. Apart from a history of ill-will the best evidence of express malice is that the newspaper knew that some of the facts upon which the comment was based were untrue. Readers Letters: If the paper prints a letter and both the letter writer and the paper are sued both may plead fair comment but the letter writer's defence may fail because of malice. The question of whether the writer's malice carries on to the newspaper has not been definitely resolved - but the indications are that the newspaper would not lose the defence because of malice.

4. Public Interest: The person the newspaper is passing an opinion on must be in the public arena - he could be a local councillor, a sports star, a government minister, a judge, a local chef, an author, a newspaper editor etc etc - anyone who has placed himself or herself in the public eye. The private conduct of such people is off-limits unless it has a bearing on their ability or qualifications for public office (for example Jonathan Aitken or MPs taking cash or questions). People who are not in the public arena, who hold no public office and have done nothing to bring themselves into the public eye are off-limits, for example a lottery winner who has asked that he be kept anonymous but has been unveiled by the Press can not be labelled scrooge in a story that he refused to give a chunk to charity.

PRIVILEGE
The defence of Privilege is an acknowledgement that on certain occasions it is necessary that a person be allowed to speak freely even if, when doing so, he falsely damages another person's reputation. The occasions on which Privilege exist have been determined by Parliament (Statutory Law) or, over the years, by judicial precedents (Common Law)

There are two grades of Privilege;
1. Absolute Privilege which gives absolute immunity from an action for libel even if what was said was motivated by malice.

2. Qualified Privilege which provides the same immunity from an action for libel as long as certain conditions are met. These conditions (or qualifications) are that the reports must be:
* Fair and accurate
* Published without malice
* On a matter of public concern
* And the publication must be for the public benefit - this is important. An MP can stand up in Parliament and label a man a killer. He can not be sued even if he knows he is wrong. The reporter in the Press Gallery could not get the defence of qualified privilege if he checked the allegation and found that it was wrong. It would plainly not be for the public benefit to label an innocent man a murderer even if the actual murder was a matter of public concern.

Explanatory note on Malice: In an action for libel being defended by a plea of qualified privilege the plaintiff is the one who has to prove there was malice behind the publication.

COMMON LAW PRIVILEGE
To understand the concept of common law privilege think of a character reference. The man who asks for it has a serious interest in finding out the truth about the man he's about to offer a job. The man who has to write the reference has a duty to tell the truth about the applicant, warts and all. If, when writing that reference, he defames the applicant's reputation he would, without privilege, be vulnerable to an action for libel. But, if he writes the reference without malice, he is immune because of the privilege afforded by the Common Law.

Common Law privilege is based on the principle that a person who has a moral, legal or social duty to inform another person about a third party should be able to write freely without the fear of a writ for defamation hanging over every word.

Historically, the principle was difficult to extend to newspapers.
First there was the issue of whether newspapers had a moral, legal or social duty to inform readers of matters of public concern. Second, did each and every reader of the newspaper have a corresponding duty or interest in receiving the information? Was the story of such concern to each individual reader that a wrongful allegation about a person whose life or conduct might never affect them should be protected by privilege?

The 1999 landmark decision of the House of Lords in Reynolds v Times Newspapers clarified the position.

The Law Lords decided that, in certain circumstances:
* The media DID have a duty to impart information to its readers
* There was certain information that the public at large had a legitimate interest in receiving.

The court lay down the criteria for the 'duty' and 'interest' tests which the court would apply in deciding whether the story was protected by common law privilege. So, if a newspaper prints an allegation against a person which is untrue and the newspaper is sued and pleads qualified privilege as a defence, the court will take into account the following before granting or withholding the defence of qualified privilege.

* The gravity of the defamatory allegation - the milder the allegation the more likely it is to attract the protection of privilege
* The extent to which it was a matter of public concern.
* The nature and stature of the information.
* The reliability of the source of the allegation - whether the informant had direct knowledge of the event or an axe to grind or was being paid.
* The steps the newspaper took to check the allegation
* The urgency of the matter
* Whether the person against whom the allegation was levelled was approached for a comment. Failure to do so will not necessarily be fatal.
* Whether the story at least contained the gist of his side of the story.
* The tone of the article.

The better the journalism, the more chance of getting the defence.

Lord Nichols, giving the leading judgment in Reynolds said a paper's unwillingness to reveal its sources should not be held against it when it claimed privilege. "Above all," he said, " the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. "The court should be slow to conclude that a publication was not in the public interest and therefore the public had no right to know, especially when the information is in the field of political discussion. "Any lingering doubts should be resolved in favour of publication."

NEWSPAPERS AND THE RIGHT OF REPLY
If a person is attacked in the columns of a newspaper he is entitled to have his reply published in that newspaper and, as far as he is concerned, that reply is privileged. But if the person goes further than necessary to defend his own reputation and uses the occasion to attack his adversary he will lose the protection or at least provide evidence that he is actuated by malice. His reply must be relevant to the charge he professes to answer.

The newspaper could be privileged in three ways:
1. Privilege derived from the person defending his reputation through its columns.
2. Privilege deriving from the 'right of reply' provisions of the Defamation Act 1996. (see later)
3. Privilege deriving from the 'duty' and 'interest' principle. The paper owes a duty (a) to the person who has been attacked in its columns and (b) to its readers who have a corresponding interest in receiving the person's reply.

STATUTORY PRIVILEGE
Parliament has listed the occasions when anything said can be safely reported under the protection of qualified privilege. The two area of statutory privilege which most affect journalists are those covering the reporting of courts and the reporting of various meetings.

These are the main changes in those areas introduced by the 1996 Defamation Act:
Update Note ( November 2000) A House of Lords ruling means that a press conference and the written press release which might be distributed at the press conference (even if not read out) are protected by qualified privilege on the basis that they are public meetings as defined by the 1996 Defamation Act. Take care, though, that the press conference is 'lawfully held, for a lawful purpose' as the Act (below) requires.

COURT REPORTING
A fair and accurate report, published contemporaneously of proceedings held in public attracts Absolute privilege and is immune from an action for libel. This not only applies to UK courts but also certain other European courts and international tribunals listed in S3 of the '96 Act. Qualified privilege now extends to fair and accurate reports of proceedings of any court (or legislature) anywhere in the world.

Fair and accurate: If the report is unfair or inaccurate it forfeits both Absolute or Qualified privilege. Example: In 1993 The Sunday Sport paid substantial out of court damages to a police officer who had been found not guilty of indecent assault. The paper had reported the opening statement by the prosecution and the main evidence of the alleged victim but did not include her cross-examination by the defence which began the same day. During the cross-examination the alleged victim made a number of admissions which weakened the evidence she had given earlier and which the paper had reported. The Sunday Sport then briefly reported the policeman's acquittal. They should also have reported the admissions which effectively negated much of the adverse publicity the policeman had received.

Contemporaneous: If the court report is not published contemporaneously - roughly the next reasonably available edition of the paper - it loses Absolute privilege but is still protected by Qualified privilege if all the conditions attaching to that defence are met.

REPORTING MEETINGS
The 1996 Defamation Act lists the various occasions which are covered by Qualified privilege. In most cases a refusal to give a right of reply to a person who has been defamed negates the defence of qualified privilege but in some cases there is no need to give a right of reply.

Category One: Reports which remain privileged without the need to give a right of reply - that is, allowing the person defamed to explain or contradict the contents of the report.

In each case the report must be fair and accurate and must restrict itself to those things which are said in public in:
* A legislature anywhere in the world
* A court anywhere in the world
* A public inquiry by a government or legislature anywhere in the world
* Proceedings anywhere in the world of an international organisation or an international conference.

Written matter included in Category One ( again with the requirement of fairness and accuracy) are:
* A copy or extract from any register or other document required by law to be open to public inspection.
* A notice or advertisement published on the authority of a court, or of a judge or official of a court, anywhere in the world.
* A copy or extract or extract from matter published on the authority of a government or legislature anywhere in the world.
* A copy or extract from matter published anywhere in the world by an international organisation or an international conference.

Category Two: Reports which remain privileged subject to a right of reply
Written matter: A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by:
* a legislature in any member state of the European Union or the European Parliament
* The government of any member state of the EU or any authority performing governmental functions in any member state or part of a member state or the European Commission. ('Governmental functions' embraces, for instance, an officer of state, chief officer of police, local authority)
* An international organisation or international conference.
* A court in any member state or the European Court of Justice or by a judge or officer of any such court.

Reports of the entire Proceedings of:
* Any lawful public meeting ( a public meeting is defined as a meeting, in good faith and lawfully held for lawful purposes and for the furtherance or discussion of any matter of public concern whether admission to the meeting is general or restricted.)
* Any meeting of county council or district council committees or sub committees (not parish councils)
* Magistrates acting otherwise than a court exercising judicial authority (eg. a licensing bench)
* Any commission, tribunal, committee or person conducting an inquiry authorised by an Act of Parliament, by the Crown or by a minister of the Crown.
* A person authorised by a local authority to hold a local inquiry
* Any other tribunal, board, committee or body authorised by an Act of Parliament as long as the public and Press are not denied admission.
* General meeting of any company or association constituted, registered or certified by or under an Act of Parliament or incorporated by Royal Charter - not being a private company as defined by the Companies Act 1948

Reports of the findings or decisions only of any of the following associations or any of their committees or governing bodies:
* A UK association which promotes or encourages exercise in or interest in any: Art, Charity, Science, Religion, or Learning.
* A UK association which promotes or safeguards the interests of any: Trade, Business, Industry or Profession
* A UK association which promotes or safeguards the interest of any Game, Sport, Pastime, to the playing of which members of the public are invited or admitted.
Explanatory note: In all cases the association must be empowered by its constitution to exercise control over its members and to adjudicate on the conduct of its members and on matters of concern to the association

OFFER TO MAKE AMENDS
This barrier to a court action for libel is afforded by Sections 2-4 of the 1996 Defamation Act.
It is specifically designed to settle the matter without going to court. Any or all of the following might be included in a settlement.
* Suitable correction
* Sufficient apology
* Publish correction and apology in a manner that is reasonable and practicable in the circumstances.
* Pay to the aggrieved party such compensation (if any) and such costs as may be agreed or determined to be payable

NB. The offer to make amends must be in writing and expressed as an offer under the terms of S2. The court can be called in to decide on any differences which arise between the parties.

This in fact would mean that the court, for example, could decide where the apology should go in the paper and how prominently it should be displayed.

CONSUMERISM
Any statement in disparagement of goods or their quality is defamatory if it reflects on the owner or manufacturer in his character as a person or a trader. Imputations that give most cause for complaint are dishonesty, carelessness or incompetence.The imputation of improper motives is a common libel risk.

In the case of Walker Wingsails Systems v Yachting World the magazine contrasted the manufacturer's striking claims for a yacht's performance with those achieved by the journalist who test-sailed her. The article also revealed that the company's claims of impressive sales 'deals' were in fact returnable deposits rather than firm contracts. The manufacturer sued and said the article meant he had deliberately misled the public by his publicity material. His wife, the sales director said that effectively the article called her husband and herself 'charlatans and liars.' Yachting World claimed Fair Comment and denied the article meant the manufacturer had been dishonest but maintained the firm had made its claims carelessly and irresponsibly. They lost.

Lesson: The fact on which comment is based must be correct. In the Yachting World case the manufacturer claimed the magazine, when making its criticisms, had failed to point out that the boat when tested by the magazine was far heavier than it had been when the manufacturer's performance claims were originally made and, in addition, its bottom had become badly fouled.

Fair comment also fails if the plaintiff can show that the defendant was motivated by malice. This did not necessarily involve telling lies. If someone publishes defamatory material by way of comment recklessly, without considering or caring whether it be true or false, then they are treated as if he or she knew it was false - ergo:no fair comment.

Which? always sends the factual results of its tests to the manufacturers but never the comments they are to make about the products.

Justification a good defence in consumerism but be careful you have the facts straight. Bovril, the meat extract company, collected damages when a book said the product contained sugar. The statement (which was incorrect) implied the company was lying when stating the contents of its product.

THE 1996 DEFAMATION ACT
One of the aims of the Act was to make libel actions more accessible to the public. Libel still remains the only civil action for which you cannot get Legal Aid but if plaintiffs are willing to accept damages of £10,000 or less they can take advantage of the new 'fast track' procedure. This, of course, makes newspapers much more liable to be sued.

S8-10: New summary procedure
The summary procedure under Ss 8-10 of the Act aims to assist the ordinary litigant by controlling and reducing the role of the jury without abolishing it - thus making libel more predictable, more accessible and quicker and cheaper for the ordinary litigant. In a suitable case a plaintiff wanting a quick apology and modest damages will not be forced to incur huge legal costs in getting them.

Claims will be dealt with without a jury.
The court may dismiss plaintiff's case summarily if satisfied it has no reasonable prospect of success and there is no reason why it should be tried.

Equally, Court may give judgment for the plaintiff if satisfied there is no defence which has a realistic chance of success.

Summary relief consists of any or all of the following:
* Declaration that the statement was false and defamatory
* Order to publish suitable correction and apology
* Damages not exceeding £10,000
* Injunction restraining further publication