Mcnae's Part Two: Defamation and Related Law

Defamation

Defamatory statements are these published or spoken which affect the reputation of a person, company or organisation.

The law is in place to protect the moral and professional reputation of the individual; if your break the law you are at risk of being sued for Libel.

Libel - this is a defamatory statement that has been written in a permanent form 

Slander - this is a defamatory statement that has been spoken 

Judges tell juries that a statement is defamatory if it tends to do the following:

1. Expose the person to hatred, ridicule or contempt

2. Causes the person to be shunned and avoided

3. Lowers the reputation of the person in the estimation of right-thinking members of society  

4. Disparage the person in his/her business, trade or profession 

Words may carry an innuendo, this is a 'hidden' meaning clear to people with special knowledge. 

Libel = Defamation + Publication + Identification  

The claimant has to show the court three things in order to support their case and sue for Libel:

1. Publication is defamatory 

2. May be reasonable understood to refer to him/her e.g identification 

3. Published to a third party 

Every repetition is a fresh publication, the journalist is liable for repeating a defamatory statement. 

A person who has been defamed may sue the reporter, the editor, the publisher and/or the broadcaster. 

Defences 

The law provides defences for Journalists against Libel Action, the main defences are:

1. Justification - The statement is the truth 

2. Fair Comment - This protects the published opinion as long as it is based on true fact, recognised as opinion and subject matter is of public interest.

3. Absolute Privilege - Reports of parliamentary proceedings and court cases are granted absolute privilege, this means freedom of speech is allowed without the risk of defamation. For absolute privilege to apply, the report must be fair and accurate:

- Summary of both sides must be given

- It should contain no substantial inaccuracies 

- It should avoid being biased towards one side.

4. Qualified Privilege - This means it is published in the public interest:

- The Matter published must be of public concern

- Must be fair and accurate

- Must be published without malice 

5. Other defences: 

a) The claimant has died as a dead person cannot be libelled 

b) The claimant agreed to the publication

Reynolds Defence 

The Reynolds defence protects the publication of defamatory material provided it is a matter of public interest and that it was the product of 'responsible journalism'

Lord Nicoll's set out a list of circumstances to be examined by the court when looking at this defence: 

1. The seriousness of the allegation 

2. The Nature of the information 

3. The Source of the information 

4. The steps taken to verify the information 

5. The status of the information 

6. The urgency of the matter

7. Whether comment was sought from the claimant (have information others do not possess or have disclosed)

8. Article contains gist of the claimants side of the story 

9. The tone of the article 

10. The circumstances of the publication 

Part three: Confidentiality, Privacy and Copyright coming soon!