Libel
The law of defamation is defined as libel, slander and malicious falsehood. In Britain this law is ferocious and one of the strictest in Europe. This guide will show you how to navigate the libel law in the UK when working on your investigation.
by cij
definitions Libel is defined as publication in a permanent form, which includes radio and television.
about the cij
Slander is spoken - a shouting match for example between two neighbours who sue each other.
The centre for investigative journalism (cij) came into being in 2003 to address a deepening crisis in investigative reporting.
Malicious falsehood is a false statement made with malice that causes damage to the claimant. It changes the burden of proof but very rarely are cases mounted. In this category the burden of proof shifts to the complainant.
The cij provides high-level training, resources and research to journalists, researchers, nongovernmental organisations, academics, graduate students and others interested in public integrity and the defence of the public interest. The cij is a non-profit organisation and runs international summer schools, training programmes in basic and advanced investigative techniques and organises public meetings – all designed to raise and sustain the standards of investigative reporting. Our handbooks, archive material, web and audio resources have helped bring additional investigative tools to journalists and the community unable to attend cij workshops and training programmes. The cij offers particular assistance to those working in difficult environments where freedom of the press in under threat and where reporting can be a dangerous occupation.
contents definitions
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why libel matters
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• libel • slander • malicious falsehood • why libel matters • why the law exists
libel and the law
• what is a libel? • who can complain?
know your rights
• get your facts right • look at the context • know your legal defences…
who has to prove what: defending a libel action • justification • fair comment • privilege • verification • the circumstances and the timing
making amends
• writing tips • common mistakes and assumptions
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why libel matters For the purposes of this handbook we will look only at the most injurious and dangerous category – libel. Because of the draconian financial penalties imposed in libel cases, investigative reporters must exercise special care and artful language in any hostile report. The object is not to prevent you saying what you feel is important, but to help you choose the right words. Every investigative journalist needs to know about libel law, even if your publication or broadcaster employs a libel lawyer. You need to know what you are up against, and how to deal with it. If a libel case goes to court in the UK it can be very expensive, in both damages and costs. Whoever loses pays, not only damages to the person libelled, but the costs of the court action, which can be astronomical. So the fear of a libel
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case will concentrate the minds of all editors, publishers and broadcasters; it could make the difference between publication and no publication. The stakes are high for everyone. What follows covers words published in a newspaper, book, or magazine; words broadcast on the radio and television; and words on the internet. It isn’t just about news – drama and fiction are included too. Why the law exists Libel laws exist to protect the reputation of the individual from unjustified attack. At the same time the law tries to strike a balance between that right and the right of the journalist to expose wrongdoing, and freedom of speech, now enshrined in The Human Rights Act. One English judge summed it up as follows:
“It is one of the professional tasks of newspapers to unmask the fraudulent and the scandalous. It is in the public interest to do it. It is a job which newspapers have done time and time again in their long history. It is a job which frequently cannot be done without risk and therefore requires a considerable degree of courage on the part of the journalists involved. “Mr Justice Lawton, 1965. Although libel law may seem to shackle the journalist, in reality it has promoted real skills in ensuring precision and factual accuracy in reporting.
libel and the law Publishing material that damages the reputation of an individual or an organisation is a libel. A person is libelled if the words •
tend to lower that person in the eyes of right thinking members of society.
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expose someone to hatred, ridicule or contempt;
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cause someone to be shunned or avoided; or
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discredit them in their business, trade or profession.
The first definition is the widest and most common libel. There are two crucial parts to this - the libel has to lower someone, and it has to lower them in the eyes of right thinking members of society. Do the words lower that person? If you say someone is gay, they may take objection – because they are not gay, and you have just got it wrong; or because they think it reflects badly on them to be known to be gay. In the UK that may have been a problem 50 years ago, but not any longer. However, if you are talking about someone in a country where homosexuality is illegal or socially frowned upon, the effect of the words might be very different. So the words might lower someone, or they might not. Many statements are capable of more than one meaning, and how others respond may change overtime, or in different societies. A simpler way of putting this is to ask yourself – do the words make the
person written about look bad? If so, it is defamation. Who are those right thinking members of society? They don’t exist. But in an English court, where a jury hears a libel case, the jury will be asked to put themselves in the place of the ‘reasonable man or woman’, and decide if the words, in their natural and ordinary meaning, tend to lower that person. If the person who claims they have been libelled can only argue that a very particular group of people might think worse of them it is not enough. For example, if you report that an official in a local church has been arrested by the police for stealing from the church and the arrest took place after the warden went to the police, the warden cannot complain that other members of the church might think less of him for what he has done. Right thinking
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members of society would expect him to go to the police, even if other members of his own church think he had no business to. The most important thing about libel law is what others think, not what you the journalist intended. And who can complain? What matters in libel law is what others think. Whatever your write, you have to think about how it will appear to the reader, to other people, and not just to yourself. So, if you write that someone has been sacked from their job, you may know that it is a fact. But being sacked has a negative meaning. It can imply the person has done something wrong to cause the employer to sack them. If you simply write they have left the job there is no problem, because there is nothing to be inferred or implied, you are not giving any explanation or reason for their leaving, they have just left as people do every day. Libel is about what others think, not you the journalist.
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The other definitions of libel are perhaps more easily understood. The important thing to remember is that if you publish something about a company, the chairman or chief executive can argue that he or she is the person damaged, even if they are not named.
know your rights Get your facts right Getting your facts right is the first and most important step, because if something is true you may have a stronger case for publishing it. You also have to be able to prove it – because in English law the person who publishes is the person who has to prove that what is written is true. The complainant does not have to prove that what is written in untrue. (In the US it is the opposite - the complainant must show that what is written is untrue.) The danger is hearing what you want to hear. Double check your documents, notes, recordings to make sure your story is right. Don’t rely on your memory - ever. Look at the context The whole page taken together, or the entire broadcast, counts in a libel action. So everyone needs to know about libel law - the person who writes the headline, lays out the page, writes the continuity links.
Know your legal defences When writing a story that could lead to an accusation of libel, make sure you know how to defend your work. You will need evidence to support your defences which should be gathered in the course of researching your story. The legal defences:
Fair comment – if you are expressing an opinion, which cannot by its very nature be true or false, the comments must be based on fact; made in good faith and without malice; and be on a matter of public interest.
Privilege – when something has been said in Parliament or a law court, it is possible to report it so long as the report is fair and accurate. There is qualified, limited, privilege for matters of public interest.
Justification – if something is true you can argue that you are justified in publishing it because it is true. But you will need witnesses and documents, be able to defend each and every part of the story, and be able to deal with every aspect of libel law.
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who has to prove what: defending a libel action For the journalist there are several ways of defending a libel action: behaviour, which they can show is Justification (or truth) Are the words true? If they are you have a defence to a libel action. It may seem blindingly obvious to you as a journalist that the story is true, but to defend it you will have to be able to prove it in court. This can be difficult and expensive. It took the Guardian newspaper years of investigation and extensive resources to defend an action following an allegation it had made against Jonathan Aitken, an MP and UK government minister. He resigned from the government to fight the case, but had to abandon his claim during the trial. He was later sent to prison for perjury. The stakes were very high for both sides. The longest running libel trial in the UK followed a complaint by McDonalds against five members of Greenpeace, for a fact sheet titled ‘What’s Wrong with McDonalds’. The leaflet had been given out on the streets. Three of the five apologised
but two decided to fight. The case ran for seven years – there were 313 days in court, 18,000 pages of court transcripts; 40,000 pages of documents and 60 witnesses. The defendants, a postman and a gardener, couldn’t afford lawyers and defended themselves. They lost the legal case, but ran a terrific campaign. To read more go to: http:// www.mcspotlight.org/ Both examples are scary, but go to show how seriously injured parties take their claims. It will also be necessary to prove any reasonable interpretation of the words complained of, and any innuendo lying behind them. Many libel actions result form the journalist implying habitual conduct from a single incident. To describe someone as a thief or a pervert on the evidence of one incident may be strictly true, but might also imply the person makes a habit of this sort of
not the case.
Be sure of your witnesses; you will need to keep track of where they are, possibly for many years; you need to know they will be willing to come to court; you need to be prepared for a challenge to your story by getting the witness to sign a statement, or at least sign your notebook or agree to record an interview. By far the best is an affidavit, made to a solicitor. If the witness then refuses to appear the court can summon them. There is safety in numbers - the more witnesses the better; the more central they are to the story the better; be sure of their identity and their truthfulness. Don’t be afraid to test them - you are protecting the integrity of the story and your own reputation. You will need documentary evidence, originals rather than copies, to substantiate your story. And you will need to keep all your notebooks, clearly dated.
Fair comment This defence applies only to comment and the comment must be based on fact; made in good faith and without malice; and be on a matter of public interest. The facts themselves have to be true and the burden of proving them true is on you the journalist. Or you have to believe they were true - and if you didn’t check, you could be in difficulty. It’s the facts rather than the comment that will get you sued. If you accurately report what some public figure has done, and then comment ‘Such behaviour is disgraceful’ this is merely an expression of your opinion. However, if you say the person has been guilty of disgraceful conduct and do not state what the conduct was, you do not have the same defence. Your defence has to be: the facts are true and the comment upon those facts is fair. The law also says that the comment has to be an honest opinion – not something just made up for the occasion. And if it is honestly held, it can be as vile as you like.
Privilege This covers the reporting of public matters or matters of public concern. Absolute privilege covers the reporting of parliamentary proceedings, and legal proceedings in a court. The reports must be fair and accurate. A summary must include the views of both sides; contain no inaccuracies; and avoid giving weight to one side or the other. In these circumstances there is no possibility of a libel, even if facts turn out to be wrong. Qualified privilege is a ‘public interest’ defence. Matters of public concern involving proceedings and publications from many public bodies are protected from libel proceedings, so long as the conditions above are met.
The courts also accept that journalists do have a duty to report more general matters of public concern, and has a list of circumstances which a judge should take into account in deciding whether a public interest test is met, and which will offer a defence (the list is not exhaustive, and not all the tests must be met on each occasion): • The seriousness of the allegation - the more serious the charge, the more the public are misinformed and the individual harmed if the allegation is not true. • The nature of the information and the extent to which the subject is of public concern. • The source of the information some informants have no direct knowledge or events, or have an axe to grind, or are being paid.
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The circumstances and timing of publication
Verification - the steps taken to verify the information. The complainant, the person offended by the story has to show: The status of the information - has • that the words are there been a previous investigation on which the journalist can rely? defamatory, they do tend to lower that person in the eyes The urgency of the matter - courts of others in society; now accept that news has a short life. • that it is reasonably clear that Was an approach made to the he or she is the person claimant - they may have information referred to that the material not available to the reporter, so the has been published. journalist must be seen to make a serious effort to contact the target or The complainant does not have to their lawyers. (Although this is not show that the words are untrue; or always necessary.) that the journalist intended to do them damage; or that in fact damage • Balance - does the piece contain has been done. The complainant only the other side’s point of view? has to show that the words tend to discredit them, and discredit them • The tone - raising a question or among their circle – other police calling for an investigation is safer officers for a police officer; the than claiming the allegations as true. medical profession for a doctor and so on. The complainant does have to show that it is clear that they are the person referred to. You cannot avoid a libel by simply not naming
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someone; if people known to the complainant know that the words describe them, that is enough. A judge said in 1826: “It is not necessary that all the world should understand the libel; it is sufficient if those who know the claimant can make out that he is the person meant.” This is still the law in England. The Police Federation has won many libel actions against newspapers who do not name police officers in their articles, but from the description the individual/s could be identified by other officers rather than the general public.
Not being clear about the person who is being described can equally lead to trouble: a national newspaper described a man sent to prison for bigamy as “Harold Newstead, a 30year-old Camberwell man.� Another Harold Newstead who worked in Camberwell successfully sued, arguing that the newspaper should have been more specific, giving the occupation and address, of the man sent to prison. Even though the facts of the story were true, truth was not a protection.
because they are the ones with money.
Also note that every repetition of the libel is a fresh publication, and creates a fresh cause of action. The repetition rule is particularly important for online sites containing archive material - every time an article in an archive is accessed this amounts to a new publication and can give rise to a new action. The time limit for bringing a libel action in the UK is a year from the date of publication - and that year starts again every time an article is Have the words been published? The accessed on the internet. complainant has to show that the words have been published - no problem there with the media. But who are the publishers? The libelled person may sue the reporter, the subeditor and the editor, the publisher, printer and distributor, or the broadcaster. All have participated and all are regarded as publishers in English law, although it is most usual for the reporter, editor and publisher to be the ones held to be responsible. Often it is the printers and distributors who are sued most vigorously -
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making amends If you make a mistake and the Common mistakes and assumptions: publisher is prepared to publish • Repeating a rumour - is unwise unless an apology and correction, you you can prove it is true. Adding may avoid legal action. It must be ‘allegedly’ is not enough. Nor is done quickly, and must be done contradicting the rumour if you start by in a reasonably prominent way. repeating it. Delay will, on the other hand, aggravate the position. • Quoting others - dangerous if you can’t prove what they said is true. Writing tips Don’t rely on the literal meaning – because someone was once a bankrupt, or convicted of fraud, doesn’t make them always a bankrupt or a fraudster.
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Drawing conclusions - letting the facts speak for themselves is better than adding a conclusion you can’t prove
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Irresponsible adjectives - adding that extra something to your story just might prove costly.
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Don’t exaggerate – be clear and precise. If in doubt, try removing the adjectives.
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Representing all sides - is good journalistic practice, but isn’t a defence against an actual libel.
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Innuendo is dangerous ground.
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If the target is powerful and has deep pockets, ensure a colleague, the editor or the lawyer has sufficient time to read the piece and make careful suggestions.
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Even without the threat of a lawsuit, an investigative reporter should be a slave to truth and accuracy. A slight inaccuracy can call for an embarrassing correction, which can be used as a weapon to counter-attack by the target of the investigation and destroy the story’s goal of reform. It can be used to smear the entire story and the credibility of the reporter. A reporter who has caused their employer to pay out large sums or make a groveling apology would irreparably damage their future prospects. The purpose of writing only what is provable is to promote long-term respect for the writer as a source of the truth. The reporter almost always becomes more influential and readers/viewers develop confidence in the news they are watching/listening.
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