Defamation - In Relation To Court Reporting

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Cheel

Back 1

Expres

Front 2

What is the definition of a defamatory statement?

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It tends to:
– Expose the person to hatred, ridicule or contempt
– Cause the person to be shunned or avoided
– Lower the person in the estimation of right–thinking members of society generally
– Disparage the person in their business, trade, office or profession.

Front 3

Describe a case study where defamation was rejected.

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In 1997, Tom Cruise and Nicole Kidman, his then wife, were not capable of bearing a defamatory meaning and struck it out of the couples claim. The headline in The Express on Sunday read: 'Nicole bans brickies from eyeing her up'. The judge said the allegation was unpleasant, maybe; defamatory, no. Nicole allegedly told the builders to turn and face the wall as she passed. The Court of Appeal said it was very much a matter for the jury to consider.

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When is a statement almost always defamatory?

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– To say if a person is a liar
– A cheat
– A criminal
– Insolvent
– Financial difficulties

Front 5

Describe a case study where a newspaper was fined for defamation by innuendo.

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In 1986, Lord Gowrie, a former Cabinet Minister, received 'substantial damages' over a newspaper article which created the innuendo that he took drugs. He had recently resigned as Minister for the Arts and the Daily Star newspaper asked: "What expensive habits can he not support on an income of £33,000 I'm sure Gowrie himself would snort at suggestions that he was born with a silverspoon round his neck.' The terminology implies that he took illegal drugs, particularly cocaine, and had resigned because his salary was not enough to finance the habit.

Front 6

Describe a case study where a newspaper was fined after implying a celebrity lied about his sexuality.

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Singer–songwriter Robbie Williams won 'substantial' damages from publisher Northern and Shell in 2005 after the magazines Star and Hot Star ran stories alleging that he had omitted from a forthcoming authorised biography details of an alleged sexual encounter with a man in a Manchester club's toilets, and that by disclosing details of his female conquests but not mentioning this episode he was concealing his true sexuality. The allegations were completely false – the publisher apologised, and paid damages and the singer's costs.

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What is the 'repetition rule'?

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It is not a defence to say that you, the publisher, are not liable because you are only repeating the words of others. Every repetition of a libel is a fresh publication and creates a fresh cause of action.

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Describe a case study which caused a newspaper to pay repetition rule damages.

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In 1993 and 1994, papers paid damages to defendants in the Birmingham Six case, who were jailed for terrorism but later cleared on appeal. Former West Midlands police officers were accused of fabricating evidence in the case, but prosecution of the officers was abandoned. The Sunday Telegraph subsequently reported one of the three officers as referring to the Birmingham Six and saying: 'In our eyes, the guilt is beyond doubt.' The Sun published an article based upon the Sunday Telegraph's interviews. It later carried an apology and reportedly paid £1M in damages to the six.

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Can there be limitations to suing a publication if it's a website?

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Every time a new reader/viewer accesses the libellous information, it becomes a new case. This makes it especially important to remove the libellous material.

Front 10

Describe a case study where a newspaper was sued for defamation for single and multiple publication rules.

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In 2001, the Court of Appeal confirmed that 'the rule in the Duke of Brunswick case' was still law and applied to the internet. The Times published articles alleging an international businessman had been involved in criminal activities, and he sued both for the stories in the paper and for those in its archive, available on the internet. The paper argued that the single publication rule should apply to the internet publication and that it should be the rule that an internet publication took place only on the day the material was posted. But the appeal judges rejected this argument.

Front 11

Describe another case study where someone successfully sued for defamation because of a website oversight.

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In 2006, a businessman called Jim Carr won two libel damages payouts from the Sunday Telegraph over one story. In April that year he won 12k and an apology over an article published in November 2005. The newspaper later paid him a further 5K in damages over the same story, after the article, by an oversight, had remained available on its website.

Front 12

What are the main defences of libel as part of the 2013 Defamation Act?

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Justification – truth
Honest comment, previously called fair comment
Absolute privilege
Qualified privilege
Accord and satisfaction
Offer of amends

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What are the requirements of honest comment?

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– The published comment must be the honestly held opinion of the person making it
– It must be recognisable as comment rather than as factual allegation
– It must be based on provably true facts/privileged material
– It must explicitly or implicitly indicate, at least in general terms, the facts on which it was based. But the facts might also be so widely known that this is not necessary
– The subject commented on must be a matter of public interest.

Front 14

Describe an example where a newspaper was sued after including a comment in a headline.

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In 2003, the Daily Telegraph published articles making allegations about left–wing MP George Galloway after a reporter found documents said to refer to him in a ruined government in Baghdad soon after the invasion of Iraq. One story was headlined 'Telegraph reveals damning new evidence on Labour MP'. When sued, the paper did not claim the allegations were true but said the headline was an expression of opinion. But the judge said 'damning' had a plain meaning – that is to say, that the evidence goes beyond a prima facie case and points to guilt. The MP won.

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Who can enjoy absolute privilege?

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–The Members of Parliament may say whatever they wish in the House of Commons without fear of being sued for defamation.

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Where can journalists enjoy absolute privilege?

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– Journalists if what is published is a fair and accurate report of judicial proceedings held in public within the UK, published contemporaneously.
– Defamation Act 1996 protects reports of the European Court of Justice, or any court attached to that court
– The European Court of Human Rights
– Any international criminal tribunal (A war crimes tribunal) established by the Security Council of the United Nations

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Why is privilege for court reports important?

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Privilege for court reports is vital for the media because what is said in court is often highly defamatory, and reporting it would be impossible without the protection of privilege.

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Where might privilege not be allowed for journalist court reporting?

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Privilege does not apply however if held in private.

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What does it mean if a court report is 'fair and accurate'?

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– It presents a summary of the cases put by both sides
– It contains no substantial inaccuracies
– It avoids giving disproportionate weight to one side or the other

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When would a media organisation lose privilege?

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– It loses absolute privilege if its report is held to be unfair or inaccurate in any important respect.
– If the reports aren't reported contemporaneously (i.e. as soon as practicable) with the proceedings.

Front 21

Describe a case study where a newspaper was charged for defamation when it didn't write a fair report.

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In 1993, the Daily Sport paid substantial damages to a police officer acquitted of indecent assault. It reported the opening of the case by the prosecution and the alleged victim's main evidence, but did not include her cross–examination by the defence, which began on the same day and undermined her allegation. Later the paper briefly reported the officer's acquittal. He still decided to sue.

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When does qualified privilege apply?

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As part of Schedule 1 of the Defamation Act 1996 –
– Debates held in public at any legislature in the world (including the UK Parliament) (Part 1)
– Court proceedings held in public anywhere in the world (so this protects non–contemporaneous reports of such proceedings, including reference to people's past convictions in the UK or elsewhere) (Part 1)
– Public meetings (and press conferences) held in the European Union (part 2)
– The meetings of councils, their committees and sub–committees held in public in the UK (part 2)
– Material – for example, official reports or Hansard – published by or on the authority of a government or legislature anywhere in the world (Part 1)
– Statements issued for the public by government departments, councils, the police, and any other governmental agencies in the EU (part 2)

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What are the requirements of qualified privilege?

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– The published report must be fair and accurate
– Published without malice
– Published in the public interest.

Front 24

What act, section and paragraph gives privilege for a fair and accurate copy of or extract from a document which the law requires to be open to public inspection?

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Paragraph 5 in Part 1 of the Schedule as part of the Defamation Act 1996.

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What is the difference between part 1 of the 1996 Act and Part 2?

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Part 1 sets out a list of statements having qualified privilege without explanation or contradiction and in Part 2 a list of statements thus privileged but subject to explanation or contradiction.

A publisher relying on qualified privilege under part 2 to protect a report must, to retain the protection, publish a reasonable letter or statement by way of explanation or contradiction if required to do so by anyone defamed in the report.
This would apply, for example, if someone wanted a broadcaster or newspaper to air a letter or statement from them responding to a report of a council meeting which defamed them. Failure to do so would destroy qualified privilege defence.
A statement list in Part 1, for example, a report of what is said in public in a legislature such as the UK Parliament or in a public register open to inspection, is not subject to the requirement to publish a letter or statement.

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What does paragraph 9 of the Schedule not cover reports of?

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All statements by people in authority. It does not cover, for example, reports of statements by spokespeople for British Telecom, a gas board, a water board, the rail companies, London Regional Transport, the British Airport Authority, or other bodies created by statute which are involved in providing day–to–day services to the public.

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Describe a case study where there's a dispute with Paragraph 9 of the schedule in the Defamation Act 1996.

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In 1984, Lord Justice Stephenson, referring to the protection given to media by paragraph 9, said: 'It may be right to include... the kind of answers to telephoned interrogatories which Mr Lord [a Daily Telegraph reporter], quite properly in the discharge of his duty to his newspaper, administered to Mr Smith [a government press officer]. To exclude them in every case might unduly restrict the freedom of the press... But information which is put out on the initiative of a government department falls more easily within the paragraph than information pulled out of the mouth of an unwilling officer of the department.'

Front 28

What paragraph of Schedule 1 says reports of public meetings enjoy qualified privilege?

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Paragraph 12 of Schedule 1.

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How does Paragraph 12 define 'public meetings'?

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A lawful meeting held for the futherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted. The privilege is subject to the 'explanation and contradiction' requirement.

Front 30

Describe a case study where a newspaper was sued over reporting at a press conference.

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Law firm McCartan Turkington Breen sued The Times over its report of a press conference, called by people campaigning for the release of a soldier convicted of murder, during which defamatory comments were made about the firm. It had represented the soldier. A jury awarded £145,000 damages to the firm, but on appeal Lord Bingham, the senior law lord, said: 'A meeting is public if those who organise it or arrange it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to the wider public.'

Front 31

What paragraph bestows qualified privilege on media reports of the findings and discussions of an association formed for the purpose of promoting or safeguarding the interests of a game, sport or pastime to the playing or exercise of which members of the public are invited or admitted (The Football Association, Lawn Tennis Association)?

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Paragraph 14 in part 2 of the Schedule. So for example, the media can safely report a decision by the Jockey Club to discipline a jockey, the Football Association to discipline a player, or a scientific association to censure an academic, if the association is of the type listed in paragraph 14. The protection does not apply however to the report of the 'proceedings' of such bodies, and is subject to the 'explanation and contradiction' requirement.

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What is the 1996 act's position on reporting about companies?

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THe 1996 act also greatly extended qualified privilege with respect to reporting company affairs. Earlier, qualified privilege only covered reports relating to proceedings at public companies' general meetings. The Act extended Part 2 privilege to documents circulated among shareholders of a UK public company with the authority of the board or the auditors or by any shareholder 'in pursuance of a right conferred by any statutory provision'.

Front 33

What case refers to comments made that aren't from the court case?

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Bennett vs. Newsquest 2006.

Front 34

What happens if a court report in the media contains background matter or comment that did not originate from the court?

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In the Bennett case, the judge said this would not destroy the privilege of the report: 'Extraneous comments can be included or other factual material but it must be severable, in the sense that a reasonable reader could readily appreciate that the material did not purport to be a report of what was said in the court.'

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What happens if there is an outburst from the public gallery?

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Privilege may not protect defamatory matter shouted out in the court from the public gallery, for example, by someone who has given evidence as a witness in that case. Privilege would protect its inclusion in a court report, provided all the defence's requirements were met. If the shouted comment is not defamatory, it can in libel law be reported safely.