Defamation: The Legal Challenge Facing Journalists
A guide to defamation law and how to avoid a costly court case
When thinking about journalism it probably isn’t often you think about the legal aspects associated with that profession. However, journalists face an abundance of legal challenges with defamation cases being the most common. Aside from being common, defamation lawsuits are not cheap, especially if the journalist loses the case, leaving media firms with significant financial burdens that can result in them going under for good, such as Living Marxism in 2000 after paying libel damages of £375,000.
So, how can defamation be avoided? To answer this, we must first understand defamation law (2013).
What is defamation?
“Defamation is a publication of an untrue statement about a person that tends to lower his reputation in the opinion of ‘right-thinking members of the community’.” (Sim v. Stretch 1936)
To qualify for defamation, the claimant must prove:
- Defamation — the material has had a detrimental impact on their reputation.
- Serious Harm — the material has or will cause serious harm to their reputation or serious harm to their company such as financial loss.
- Identification — the claimant must prove that the material is about them. This could be by their name being mentioned or by description, known as jigsaw identification, where references and clues in the material lead the average person to identify the claimant or organisation.
- Publication — the statement must have been published by a person sued by a third party.
There are two forms of defamation: libel and slander.
Libel is when a defamatory statement has been made in ‘permanent’ form either via printed material such as books, newspapers, or online, as well as on broadcast television and radio.
Slander, on the other hand, is when a defamatory statement has been made in ‘transient’ form, including spoken words and physical gestures. According to Quinn (2015) “defamation acts against the media usually concern libel” as slander cases are verbal so are inevitably harder to prove in court.
Example of libel (2017)
Australian actress, Rebel Wilson, sued the publishing group Bauer Media for defaming her across multiple articles that implied she was a ‘serial liar’ who lied about her age, childhood, and name in order to advance her career in Hollywood. Wilson claimed that the false stories caused serious harm as she lost significant opportunities over the course of two years, including two film roles which led to her colossal payout of £2.7 million, the largest in Australian history for a case of its kind. However, after an appeal, the damages were reduced to $600,000 but the actress still came out victorious by clearing her name.
Not all defamation cases are restricted to written statements though. In fact, many cases stem from things that are not immediately obvious which is important for journalists to be wary of.
For example, juxtaposition (misguided word-picture combination) can result in defamation claims. Juxtaposition is when a person and a story are unrelated but because of the newspapers and televisions layout, appear to be linked. This can create serious consequences as it can accidentally libel a person or an organisation. Cases of this kind are more frequent in newspapers, but an example of juxtaposition on television occurred recently when Sky News broadcasted a clip of Prince Andrew during a segment on the Madeleine McCann prime suspect and I have to admit it was rather funny. See video below:
Sky News apologised for their accidental blunder and corrected it immediately, but Prince Andrew could sue for defamation as he is linked to something that could potentially damage his reputation. The presenter, Dermot Murnaghan, told viewers: “We have actual evidence Madeleine McCann is dead. German prosecutors reveal more on their investigation into the suspect, Christain B” whilst Prince Andrew was simultaneously displayed on the screen. The Duke of York’s reputation is already on the rocks given the recent allegations about him in relation to his visits to his infamous friend, Jeffery Epstein. Thus, insinuations that he is involved in the disappearance of Madeleine McCann is the last thing the prince needs.
As well as juxtaposition, other possible danger areas for journalists to watch out for are innuendos, captions, exaggeration, visuals, and jigsaw identification. As, something that appears harmless at a first glance, could progress into a lengthy and expensive court case if they are not careful.
What defences are there?
There are a few defences a journalist can take if a defamation claim has been made against them. Firstly, if they can prove the defamatory statement to be true with evidence, they are covered by the defence of truth. This was evident in November when Hollywood star, Johnny Depp, lost his libel case to The Sun as they proved their defamatory statement of “wife-beater” with sufficient evidence from photographs, audio recordings, and text messages provided by Mrs Heard.
Another defence is absolute privilege. The principle of this is “that there are circumstances in which freedom of speech is deemed to be of greater importance than the protection of a person’s reputation.” (Maule and Zhongdong 2010).
The honest opinion defence is where the defendant would have to prove that the statement complained of was one of opinion, not fact.
Public interest defence is where defamatory statements are published as a matter of public interest because it is believed that the public have a right to know.
How to avoid a defamation case
Whilst the thought of being sued for defamation may feel very daunting, there are several ways journalists can avoid a legal backlash. One is by fact-checking. Whilst this might seem obvious, as all journalists should morally check their information and sources before publishing, it is surprising how many journalists will bend or exaggerate the truth to gain readership. So, fact-check everything and thoroughly scan your article to avoid the danger areas mentioned above.
Another tip is to only say/write what you can later back up in court as the defence of truth is the simplest way to defend a defamation claim. Another way is to use evaluative phrases such as “I think” so a potentially defamatory statement can be argued as opinionative rather than factual.
Remember, it is much better to publish a simple and standard news story than publish one with false claims only to find yourself later buried in legal costs that you cannot afford. And to top it off, you might even lose your job.
For more information on how to avoid a defamation case, check out New Zealand barrister, Steven Price’s blog where he outlines his “12 golden rules” for avoiding defamation.
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