The Law of Defamation

Defamation, libel (written) and slander (spoken) is the claim that an implied statement puts an individual, group, product, business etc. in a negative light. Defamation is, therefore, set up to protect somebody from needless insult.

Defamation requires that:

(i) The statement is indeed defamatory

(ii) It has been ‘published’ to a third party

(iii) That the person has been defamed. This is through the person being:

(i) Exposed to hatred, ridicule or contempt

(ii) Caused to be shunned or avoided

(iii) Discredited in their trade, business or profession

(4) Lowered in the eyes of right-thinking members of society

Therefore, if a person believes that their reputation has been lowered in the eyes of right thinking members of society, then they have a claim to defamation. That person can then sue the publisher/broadcaster, the author/writer/broadcaster, the distributor and anyone responsible for spreading the defamation. The burden of proof lies on the prosecution and not the defendant to prove beyond all reasonable doubt that what was produced was defamatory.

Human rights organisations, such as the Council of Europe and the Organisation for Security and Co-Operation in Europe, have campaigned against defamation laws which criminalise defamation. This leads an to the ongoing debate whether defamation laws contradict with freedom of speech. However, Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech which are necessary for the protection of the reputation or the rights of others.

There are, however, several defences; justification, is a complete defence if the statement is in fact true. If a journalist in their ‘honest opinion’ make it absolutely clear that what they are saying is comment rather than fact then fair comment is another useable defence. Absolute and qualified privilege is a protection given to people who have a duty to make the statement and can say nearly anything they like, as long as it’s not malicious of course.

Ian Hargreaves, in his book about journalism quotes the philosopher Onora O’Neill, who, in 2002 gave a lecture she’d written for the press. She declared that the press was guilty of “Smears, sneers, and jeers, names, shames and blames. Some reporting covers dementing amounts of trivia, some misrepresents, some denigrates, some teeters on the brink of defamation… if the media mislead… the wells of public discourse and public life are poisoned” (Hargreaves, 2005:120).

The fact is, everyday, nearly everybody makes a defamatory statement; however, very rarely does someone use the law of defamation to quash these statements. Defamation laws are so complex in fact that many writers and publishers prefer to be safe and not publish certain material in case they are threatened with court action. Therefore, writers can cut out anything that might offend, resulting in an appalling knock to the freedom of speech. For instance, the rich and powerful can threaten defamation over nearly anything as they have the money; take for example, Britney Spears who tried to sue after a magazine report claimed that she watched her sex tape with lawyers after a member of their entourage threatened to release the footage. Ms Spears’ legal team argued that was libellous because it “maliciously and recklessly portrays [Ms Spears] as acting ‘goofy’ while watching the video with the lawyers”. The case was thrown out by the judge.

The result is that the defamation law is only really used by the rich and powerful to deter any criticisms, rather than normal people. This is because of the huge costs involved in bringing the case to court meaning that most people will never sue for defamation. For instance, Dr Joe Rahamin of Devon won £1 million in 2001 in damages after allegations on Channel Four and ITN that he wasn’t any good at his job. Likewise, time is an important issue as cases can go on for years. Moreover, the directors of a firm of stockbrokers demanded £240 million to compensate them for loss of potential business caused by an article in the Financial Times. Furthermore, the number of reported libel cases involving celebrities suing newspapers doubled between 2006 and 2007, with the majority of the cases taking place in London as English laws are much more favourable to claimants.

Accuracy is at the moral heart of journalism and without truthfulness ‘Journalism cannot inspire trust and without trust, there is no worthwhile journalism’ (Hargreaves 2005:121). There is a desire to stand out, to assert yourself, as opposed to simply verifying the facts but the challenge is having a moral compass that guides the individual, regardless of the society he finds himself to be working in. There has been erosion of trust, but not just in journalism. Politics, businesses and public relations people have contributed to the public’s cynicism. Perhaps it’s worth recalling the last line in Voltaire’s satire ‘Candide’ “We must cultivate our garden” (Pearson, 1990:25).

Possible changes to the laws on defamation have been recommended by the Law reform commissions for decades. Possible changes include: reducing court costs, eliminating pay-outs (instead issuing immediate apologies) and implementing a public figure defence so that it’s possible to criticise the powerful without being brought to court.

In conclusion, the defamation law prevents journalists from seeking the truth, instead it represses them; more speech and writing is the answer, unlike defamation which discourages this because of the fear of being brought to court. Defamation actions are often used to silence journalists who criticise those with money and power meaning that it has an alarming effect on the freedom of speech. Therefore, defamation does not protect reputations; rather it serves as a suppressor to fee speech. The most effective penalty for telling lies and untruths is the loss of credibility, not having to pay-out huge fees. Instead, systems should be set up to allow the journalist to make apologies and corrections and take responsibility for their mistake, therefore, if the journalist is a repeated offender they can be exposed as untrustworthy.

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