Defamation and Journalism: A starting point

Ellie Munford
6 min readDec 17, 2020

--

It is no secret that journalists will often push the boundaries to get the latest juicy scoop on a story but there are significant legal limits pertaining to journalistic practices; cross a line and you may find yourself on the wrong side of both the law and the media lens.

Perhaps one of the biggest challenges facing journalists is defamation law since it plays a major role in how stories are presented in the media. As a journalist, it is part of the job to publish interesting and important stories that often cast individuals or businesses in a bad light. In this case, the threat of defamation is used to suppress this kind of negative publicity even if what is being published is true. This is why it is crucial to present information clearly and accurately and to know whether you are detailing truth or expressing opinion or else it can be extremely costly to defend your story in court.

As of the 2013 Defamation Act, a defamatory statement is essentially any means of communication of a false statement that is used to expose someone to hatred, ridicule and contempt.

There are two forms of defamation that cover all instances of communication. An act of libel is when a defamatory statement is made in a permanent form. This could be written in books, a newspaper article (print or online), or broadcast on radio or television for example. The second type of defamation is called slander. A defamatory statement made in a transient form of communication, such as speech or physical gestures, would be called slander. Since slander is temporary and impermanent it can be very difficult to prove these cases in court.

Defamation has four basic definitions in common law:
a.
what you write exposes someone to hatred, ridicule and contempt
b. what you write lowers the estimation of right thinking people generally
c. what you write damages someone in their trade, profession or office
d. what you write causes people to shun and avoid your subject

The Defamation Act 2013 states ‘a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’

This means that the publication of a false statement is considered defamatory only if it can be proved that it has or will cause significant harm.

Case study of UK libel case (2020):

Credit: The Sun
Credit: The Sun, News Group Newspapers

One of the most recent incidents involving defamation is the case of the Sun newspaper publishing an article about actor Johnny Depp. Depp sued the Sun’s publisher, News Group Newspapers (NGN), and its executive editor, Dan Wootton, over an article that called the actor a “wife beater” and referred to “overwhelming evidence” that he had attacked Heard. Depp argued that this had caused him enormous damage to his reputation and will ultimately cause him losses in his career and life. However, in the 129-page ruling, the judge, Mr Justice Nicol, said: “The claimant has not succeeded in his action for libel” and that News Group Newspapers (NGN) “have shown that what they published in the meaning which I have held the words to bear was substantially true.” This is because he found 11 out of 14 alleged incidents of domestic violence had occurred and a one other to be partially proved. The defendents (NGN) relied on a defence of truth to the claim. This meant that they must demonstrate the words published in the story to be substantially accurate. In this instance, the defamatory statement stands as being factually true because the judge decided that Depp had indeed committed violence against his wife and therefore the Sun were accurate in calling Depp a ‘wife beater’.

Although the details of fees are not out in the media for this particular case, defamation cases can be extremely costly since lawyers representing successful claimants can still claim a 100% bonus on all their fees and if you are an unsuccessful defendant you still have to pay for the ‘after event insurance premium’. This is an insurance policy which guarantees the payment of a claimant’s costs if the case is lost or abandoned.

Truth is the strongest and most simple defence for defamation which will result in complete and absolute exoneration for the defendant. Even if the defendant had malicious intent when communicating the statement or the information, and regardless of whether it was in the public’s interest to make it known, the veracity of a claim will always provide a defence.

The only instance where this is an exception is concerning spent criminal convictions where the defendant acted perniciously. This is because the conviction is spent so using a previous conviction against a claimant would contradict the justice system’s attempts at rehabilitating offenders.

Fair comment defences (previously ‘honest opinion’) can be used if the defendant can show that:

a. the statement was made in honest opinion
b. the statement is one which an honest person could have held
c. that there was an apparent basis to the opinion

This defence can be overcome if the claimant can prove that the defendant did not hold the opinion.

Public interest is another defence for defamation if the defendant can show that their comments were made and published for the benefit of the public interest. It can only be used by someone in a position in which it seems a necessity, either ethical, legal or social, to impart certain information to another who has an interest.

This defence also covers situations where the information is false but may not seem so at the time, and that they felt they had a duty to report it before being able to verify the information.

Absolute privilege allows for complete freedom of speech with no fear of legal action under defamation and is applied to certain situations no matter how harmful or false the information is.

All parliamentary and court proceedings in England and Wales are afforded this privilege, as is any communication between a solicitor and their client.

Innocent dissemination is the final defence for defamation which I shall mention in this post. It is a defence for those accused of libel through the publication of the written word or images.

To qualify for innocent dissemination the defendant must prove that they had no knowledge that the information they distributed was defamatory, had no reason to believe that it would contain libel, and also that it was not due to negligence on their part.

It is a defence only available to those who are peripherally associated with the publication of the libellous information such as Internet Service Providers (ISPs) who act as a medium through which potentially libellous material can be published. It also potentially extends to printers or distributors.

Although there are several defences for instances of defamation, most journalists with a moral compass would want to fact check their information and the reliability of their sources to ensure what they publish is not libellous, but if not, the potential for a hefty compensation pay-out as the result of a defamation lawsuit should be pretty persuasive too.

--

--

Ellie Munford

Blogger | Conversationalist | Feminist | Digital journalism should be your primary source of news — Change my mind?