Defamation and Libel

This is a big danger area in reporting crime… correction… huge danger!

Defamation occurs when a statement:
1)Lowers a person in the minds of right thinking people
2) Exposes a person to hatred, ridicule, or contempt
3) Causes the person to be shunned or avoided
4) Disparages the person in their business, trade, or profession

Reputation is precious, especially if you are in the public eye, have a lot of money, or even both, so if a publication has somehow managed to damage their reputation, they will go after them.

Inference is a massive hazard, you need to consider how the content is interpreted in the context of the whole article. Different people infer different meanings so ask other people to check your article, the more brains you get involved the checking process then the more likely it is that someone will spot libellous content.  

Some publications are a little bit cheeky and use “bane and antidote” as a way to publicise otherwise defamatory material. Bane and antidote is where a defamatory statement is then removed by the context of the whole article. For example publications often superimpose celebrity faces on actors bodies in questionable scenarios, which at first glance would be incredibly defamatory. The publication then saves itself by outlining its use of actors and clarifying these are not the celebrities actual actions. However this is risky as often readers won’t look much further than the headline and picture, so may never actually read the “antidote” section of the article.

Defamation is a big worry for journalist for one main reason…money. Defamation cases can result in huge damages being paid, costing the publication a lot of money, and that’s without considering the legal costs on top of that.

An example of a recent defamation case is Chris Jefferies 2011 as mentioned in my “reporting crime” blog post. Chris Jefferies was awarded substantial libel damages after newspapers repeatedly published defamatory material about him which proved to be untrue.Chris Jefferies receives libel pay out This kind of mistake is an embarrassment for the media, an expensive embarrassment.

There is a constant risk of libel for the media at the minute, due to the seemingly never ending list of celebrities being accused of sexual offences. Journalists have to be very careful how they cover such a high profile sex offence case as the accusations are extremely defamatory to a person’s character. Even when a person is proved innocent, the public often fail to distant themselves from the allegations that were made, which is no fault of the media, but highlights how damaging these claims can be. An example of this is Michael Le Vell who plays Kevin Webster, a mechanic on Coronation Street. Michael Le Vell was accused of 19 charges of child sex offences and was cleared of all the offences. However his reputation in the public mind was severely damaged.

Journalists also have to be aware of the risk of defamation via pictures which is a common risk in broadcast journalism. The careless use of background shots teamed with a voiceover can be very defamatory depending on the context. People and companies should not be identifiable in certain contexts such as child abuse or fraud.

There are defences in place to protect journalists from libel:
1) The statement must cause “serious harm” – harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause “serious financial loss”.
2) The statement is true (previously known as justification)
3) Honest opinion (previously known as fair comment). The defendant must show that it is a an opinion that could be held by an “honest person” based upon a known fact at the time of writing. There must not be any malice as this will completely undermine your defence. As a journalist you should be distantly disinterested.
4) Public interest (previously known as Reynolds defence) “the statement complained of was, or formed part of, a statement on a matter of public interest; and the defendant reasonably believed that publishing the statement complained of was in the public interest”.
5) In web publication it is a defence for the operator to show that it was not the operator who posted the statement on the website.
6) Absolute privilege – court reporting
7) Qualified privilege – police quotes, press releases etc.
8) Bane and antidote
9) Apologies and clarification
10) Single publication rule

There is no defence when you have not checked your facts! There is no time for laziness in this game! Refer up and get your facts checked. If you do not wait for a lawyers opinion or get carried away by a spicy story then you only have yourself to blame.

Reporting on Crime

Reporting on crime is a tricky business. It is necessary for journalists to report on on-going cases as it is in the public interest but it can cause all kinds of problems for the reporter, so it is critical that you know the law inside and out (or that you have a handy lawyer on staff that you can badger with questions).

A recent example of a legally questionable article is this one by the Daily Mail Rosdeep Kular - Daily Mail (and yes I’m only putting the link to cover my back).  This report was regarding Rosdeep Kular who has been charged with the murder of her son Mikaeel Kular. The article is headlined “Party lifestyle of Mikaeel’s mother who called herself the dancing queen” and Rosdeep Kular is pictured with an apparently alcoholic drink in hand.  As this is an “active case” this report could be damning on her character and therefore effect how she is viewed by the jury. An article like this is prejudicial to an ongoing case which could result in contempt of court.

It is crucial for a journalist to understand when a case is “active” as this drastically changes what is able to be reported. A case is immediately made “active” from the point of arrest. It is also made “active” by a charge, summons, or an arrest warrant.

The Daily Mail would be able to defend their article on Rosdeep Kular by referring to the “fade factor”. The case is still in its early stages and there is still isn’t a jury, therefore there isn’t a jury to influence. By the time of the trial the article will be old and will have faded from the memories of the public. However this was still a questionable article to publish and if I were in their situation I think I would have chosen not to publish (but this may just be because I am young and forever fearful of making mistakes).

The Mikaeel Kular case is very different when it comes to reporting the case, as it is being carried through in a Scottish court. The first hearing was a private hearing in the “sheriff court” which meant journalists weren’t allowed in. This differs to English courts where journalists are allowed to report on every stage of the trial.

There are opportunities to slip up everywhere you turn. If the media discovers that a person is being investigated by the police or another agency and then publishes this, identifying the person, then that person could sue the publisher for libel if that investigation doesn’t then lead to a prosecution. Even though it is factually correct that this person is under investigation, it is defamatory as it suggests guilt. An example of this is Chris Jefferies in 2011. This is also an example of how wrong the media can get it.

In 2011 Chris Jefferies won substantial settlements against eight newspapers for articles they published about him. Joanna Yeates who was one of Chris Jefferies was found dead and he was then subject to an investigation, arrested and released. Newspapers published defamatory material about him repeatedly and his face made the front page on several occasions. However another man was charged with murdering Joanna Yeates. What was published about Chris Jefferies resulted in two newspapers being charged with contempt of court.

Sometimes in high profile cases publications may choose to publicise a suspects name before charge, for example if it concerns a celebrity. This is because the celebrity may not wish to alienate the media or cause any more negative publicity so will choose not to sue in order to avoid making it into the limelight once more.

7 things to include in a court report:

1.       Name of the defendant

2.       Age and address

3.       Name of the court

4.       Plea

5.       Any applications for Bail

6.       Charge

7.       names of solicitors

It is also important for journalists to understand the different types of cases; civil and criminal;

Civil Cases are disputes between two individuals or organisations and will be shown as a name V a name e.g. Brown V Smith. In a civil case the person is “liable or not liable”. The standard of proof in a civil case is “on the balance of probability”.

Criminal Cases are offences which harm the whole community and are therefore against the sovereign. Criminal cases are shown as R V a name (R represents the sovereign) e.g. R V Smith. In a criminal case a person is “guilty or not guilty”. The standard of proof in a criminal case is “beyond reasonable doubt”.

The main thing to remember when reporting on crime/ court cases is that you cannot be too safe. You should be conscious of anything that represents itself as being a fact and you need to consider whether anything you report could be contested in court.

If in doubt, call the lawyer.