Libel for journalists seminar

IBI Academy
Libel for journalists
Joss Saunders and Elaine Heywood
15 June 2009

Agenda

Libel: what, who, where, when, how much?
Defences: how to deal with libel
Related issues: malicious falsehood, privacy, data
protection
The Internet and Web 2.0

This presentation is on libel law in England and
Wales.

© Blake Lapthorn 2009

What is libel?

Publication
To a third party
Of a defamatory statement
Which refers to the claimant
In permanent form (slander is spoken defamation)

NB this talk is based on English law (but see Internet
section below)


What is defamatory? Some examples

Guilty of criminal offence
Insolvency
Dishonesty/sharp practice
Cartels
Immorality/hypocrisy
Holding claimant up for ridicule


Some tips

Say when, not because
Check dates, don’t imply the present when you mean
the past
Don’t say what a person thought (only they know),
but draw an inference using fair comment
If this is true, then…


Common mistakes

But that’s not what I meant… Simon Singh and the
British Chiropractic Association
But I didn’t name them…
But it’s true…
He’s not the John Smith/ Fatima Patel I meant


Liability for publication: who

Primary liability of author/editor/publisher
Secondary liability: printer, distributor, ISP
Anyone who repeats or republishes a defamatory
statement


When can you be sued?

Usual limitation period one year
But court has discretion to extend (not often
exercised)
Online there is no limitation in UK
Privacy limitation is longer (usually six years)


Where is publication? Libel tourism

Place of publication
Is newspaper distributed here?
Barclays Brothers sue in France where different libel
rules apply
But see online later in presentation


Who can sue

Anyone with a reputation (but some surprises here)
Not government
But people in government can sue
Individuals, companies
Not the dead …..
(though in France it can happen)


Offer of amends

s2 Defamation Act 1996 enables publishers to make
offer of amends, admitting liability
Court then gives discount against damages
Judge gives 50% discount in award to Jimmy Nail,
awarding £7,500 from Harper Collins book and
£22,500 for News of the World article
Public interest is encouraging offer of amends,
damages to be “healthily discounted”


How much damages?
Usual ceiling £200,000 since Elton John
Galloway gets £150,000 from Telegraph “being in the pay of
Saddam Hussein” - January 2006
Jameel gets £30,000 and his company £10,000 from Wall Street
Journal over allegations of terrorist links – decision appealed
October 2006
Sir Martin Sorrell, CEO of advertising group WPP settles for
£120,000 for defamatory blog - March 2007
Morrisons gets £100,000 from OFT - April 2008
Ricky Warren gets £115,000 from Random House -September
2008
Cardinal’s former spokesman gets £30,000 from Associated
Newspapers over abortion allegations -January 2009


Damages for fall in share price?


Damages for fall in share price?

Stockbroker Collins Stewart Tullett claims £230m for
share price drop following libel
FT had reported allegations of insider dealing, based
on document sent by ex employee to Financial
Services Authority
Judge said share price special damages claim was
“untriable and a waste of the resources of the court”
£37m damages claim for lost business but settled out
of court for much less


Defences

Limitation: when can you not be sued? See above
Justification
Fair Comment
Privilege
– absolute privilege
– qualified privilege
– the Reynolds defence - reportage
Secondary responsibility – s1 Defamation Act 1996
for innocent secondary publishers


Justification

Truth is only a defence if you can prove it
Do you hold the primary evidence?
Have you got signed witness statements?


Fair comment? Is that a fact?

Hamilton & Hamilton -v- Clifford
Max Clifford’s defence of fair comment struck out, as
allegation was one of fact (rape), fair comment
defence not available
Rule of thumb: can it be proved or not
Tip: make it impossible to say true or false


Fair comment

1. Words are comment (not fact)
2. Comment is an honest expression of commentator’s
opinion
3. Comment is based on facts


Fair comment

Bad Science Case
Ben Goldacre’s “Bad Science” column in The
Guardian
Rath is a “vitamin salesman who aggressively sells
his message to AIDS victims in South Africa”
Defendant doesn’t have to prove every fact on which
comment is founded is true


Privilege

In Parliament
Fair and accurate reporting of statements of
government, the courts, and official bodies


Qualified privilege

Were you under a duty to publish?
Is it a reply to an attack?
Is it in the public interest? (or Reynolds defence)


The public interest defence

The Reynolds -v- Sunday Times test
Now a three stage test: Jameel -v- Wall Street
Journal [2006]
1. Is publication in the public interest?
2. Is it necessary to include the defamatory
statement?
3. Is the publication responsible and fair?
Always offer an opportunity to comment before
publishing


Reportage (fair and neutral reporting)

Roberts -v- Gable (2007] EWCA Civ 721
Is the information in public interest?
Is the report about the fact not the truth of
statements?
Protection lost if statements are adopted or fail to
report a story in a fair and neutral way
Standards of responsible journalism must be met


Related problems

Malicious falsehood
Privacy
Data Protection


Malicious falsehood

False statements
Claimant suffers financial loss
Defendant malicious
– eg BMJ gets sued for news story about a doctor who
was struck off for professional misconduct


Privacy – the test

Mosley -v- News Group Newspapers Ltd (July 2008)
The test:
– 1. is it private information?
– 2. is there a reasonable expectation of privacy?
– 3. does the public interest justify an invasion of
privacy? (the balancing of Article 8 and Article 10)?
Where does this leave publishers now?


Data Protection Act 1998

Is the information you hold about individuals (not
limited companies) accurate, relevant and up to
date?
Individual may have right of access to the information
Qualified exemption for journalism: Section 32
Do you reasonably believe publication is in the public
interest?
PCC Code of Practice relevant, but not exhaustive
Caution if data obtained unlawfully: take advice


The Internet and Web 2.0

When and where is the work published?
What defences apply?
What other issues do I need to think about?


Tomorrow - the world

When and where is the work published?
Gutnick -v- Dow Jones [2002]


The clock doesn’t stop

Indefinite liability for libel - Loutchansky


Archives – help!

Loutchansky -v- The Times Newspapers [2002]
A real risk for online publishers
need not inhibit the responsible maintenance of
archives
offending article did not have to be removed but
appropriate warning notices should have been placed


The Google effect

News clustering and the long tail


Am I responsible for what others say?

Blogs, social media and wiki
The lack of legal control


What about linking?

Hyperlinks – akin to footnotes or is there editorial
control?


What can you do to limit liability?

Take action as soon as you are put on notice that online
material may be defamatory (reasonable care and
knowledge)
Place a warning notice if a legal challenge has been made
in respect of material on a website or in online archives
Try to identify the defamation law to which a person may
resort before publishing and try to comply with it
Try to comply with the libel laws of the least defendant
friendly jurisdiction, ie England, which sets a benchmark
as to what is acceptable
Put in place a system for dealing with complaints quickly


What can you do to limit liability (2)?

Libel read material – especially contentious material
If you intend to publish, be forearmed with your
defence
Verify the accuracy of reported material, report fairly
and don’t embellish or adopt allegations
Publish responsibly and fairly
Blogs – have a clear policy and stick to it


If you have questions on this or other related topics, please contact:
joss.saunders@bllaw.co.uk
Blake Lapthorn is an English law firm regulated by the Solicitors
Regulation Authority under SRA number 448793 whose rules can be
accessed via www.sra.org.uk
This presentation is protected by copyright and is not a substitute for
detailed advice on specific transactions and problems and should not
be taken as providing legal advice on any of the topics discussed.
A full list of our partners is available on our website at
http://www.bllaw.co.uk/about_us/a_to_z_of_partners.aspx or at any one
of our offices http://www.bllaw.co.uk/offices.


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