If the journalism industry was mapped out like a World War One battlefield, with the journalists one one side and the story/news on the other and no-mans land containing a mass of legal snares. Mines marked "defamation" would probably be laid in large clumps ensuring that, should a journalist step on one it would quite simply be the end of him (or her, for those of you mindful of political correctness). Describing this experience was perhaps not as eloquently put as Captain Edmund Blackadder but nevertheless it serves as a reminder to all journalists how dangerous defamation is.
In simple terms, defamation occurs when someone produces a permanent (written or broadcasted) statment that affects an individual's reputation. Specifically if:
- it lowers them in the estimation of right thinking people
- causes them to be shunned and avoided
- if it affects them in the their trade profession or industry. Slander is the non-permanent sister of defamation.
- exposes them to hatred ridicule or contempt
When a libel writ is brought against a journalist for a defamatory statement then there are four defences.
Justification - I can prove that the statement (although defamatory) is true.
Fair and honest comment - The statement is comment based on fact and is an honest and fair opinion. Must also be in the public interest
Qualified Privilege - The statement is protected by qualified privilege
The Reynolds Defence - If defamatory material is in the public interest AND adheres to the Nicholls List. Must also be a product of RESPONSIBLE JOURNALISM
Libel laws in the UK are perhaps the worst in the world. Many celebrities bring a libel writ to UK courts because they know that they will win. A good example of this sort of action was when a famous boxer had defamatory statements written about him in a boxing magazine. Although not protected under US law, his lawyer proved that the magazine could be downloaded in the UK and therefore fell within UK court jurisdiction.
Journalists must also be aware of inference and innuendo. Television journalists must also be aware of 'wallpaper pictures' to ensure that no-one is postitively identified.
PRIVILEGE
Privilege is something that is afforded to journalists that allows them to report without fear of legal reprimand providing they stick to an agreed reporting formula.
Qualified privilege is a cast-iron defence against defamation providing the material is:
FAST/CONTEMPORANEOUS
ACCURATE
FAIR
Finally, it was interesting to hear a recent discussion that took place on Radio 5Live on the subject of super-injunctions. Victoria Derbyshire's show centred on a debate with Max Mosely about how super-injunctions should be lifted. One of the arguments from a caller was that a company who had take out a super-injunction in order to stop the world from finding out that they had dumped nuclear waste in Africa should not have been allowed to do so simply from a humanitarian point of view. Interesting to note that people are now wanting to apply common sense to super injunctions.
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