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They are intended as general information not specific legal advice. If you want legal advice about a particular problem, you can contact me here. What is defamation? The publication of a statement about someone that lowers him or her in the estimation of right- thinking members of society generally, where no defence (usually truth, opinion, or qualified privilege) is available. The defences are dealt with below. In English? A rough rule of thumb: something you wouldn’t want said about you.
What are some examples? Calling someone dishonest, corrupt, hypocritical, lazy, incompetent, criminal, unfaithful, or financially troubled.
It includes what ordinary readers or viewers see or hear “between the lines”. The courts will look at the “sting” of the article. Proving the literal truth of the words won’t help if the sting is an inference. For example, imagine I wrote that you often visited brothels.
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I may be able to prove this is true. You may visit brothels every day, making deliveries of wine. But that’s not what readers will think, is it? They will read between the lines and gather that I’m saying you frequently sleep with prostitutes. This is the “sting” of the article.
It might be quite defamatory, especially if you are married or strongly religious. Sometimes journalists and others try to get clever with words, hinting and implying things, thinking they are safe because they can prove the literal truth of the words. What they have to prove is the meaning that ordinary readers take from their story. But what if the publisher didn’t intend that meaning? It doesn’t matter.
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What matters is what ordinary readers or viewers will make of it. When Metro magazine jokingly described a gossip columnist as “permanently pssst”, for example, a jury felt this suggested she was regularly drunk and awarded damages. Is a story safe if it doesn’t refer to people by name? Not necessarily. Identification can also lie under the surface. Just because a story doesn’t mention someone by name doesn’t mean that person can’t sue for defamation. If ordinary readers familiar with the person understand the article to be referring to him or her, that will be enough. For example, if a newspaper accuses a company of fraud or a government department of waste, it is possible that ordinary readers will take this to reflect on key decision- makers in those organisations.
What if a group of people is accused of misconduct? Can each member of the group sue? The question is: will readers or viewers understand the accusation as relating to the individual (perhaps equally with the others)?
This depends on the size of the group and the inclusiveness of the language. For example, if a television report asserts that “one official” at a company took a bribe, and the company has only four officials, they could each argue that the allegation reflected on them. If it had a hundred, they couldn’t.
In general, for groups bigger than about a dozen, it may be difficult for courts to find that an accusationagainst one person reflects on all. On the other hand, if the language is more inclusive, the range of people who can sue expands.
For example, our station accuses “government ministers” of “having their hands in the till”, the accusations will probably be taken as reflecting on each individual minister. Still, there are limits. If the report accuses “all doctors” of exploiting patients, the group is too wide for individual doctors to say people will think it relates to them. What if the publisher didn’t intend to refer to that person? If the publisher names someone as responsible for a crime, for example, what if some readers think it is referring to someone else who happens to have the same name?
The answer: the publisher liable for defamation, even if it had no idea the other person existed. What’s “innuendo”?“Innuendo” has a special legal meaning.
Sometimes a story will look completelyinnocent to most people, but it may carry a barb that is understood by some of theaudience. For example, it may appear harmless to say that John Smith doesn’t recycle waste paper. But if some people know that Smith is an environmental activist, the story will suggest to those people that he is a hypocrite. So what needs to be shown to prove “publication”? That the publication was conveyed to at least one other person. It doesn’t have to have been published in a newspaper or broadcast. It doesn’t need to have been recorded or written down.
Does it include publication on the internet? Yes. Who’s liable? All the people involved in producing the story: the author, the editors, the publishing organisation, and the sources if the defamatory quotes came from them. What if the publisher just reporting what someone else said? The rule is: whoever reports it is liable for it. Even if it’s from an apparently reputable and knowledgeable source, such as the police. The publisher has to prove the truth of the sting of the article, remember.
That’s what the readers or viewers will take it to mean. It’s not enough for the publisher to prove that it has reported the accusation accurately. It must be able to prove that the accusation itself is true. What if the publisher writes “alleged”? This is just a fancy way of saying “I’m reporting what someone else has said” – so the same answer applies. Sprinkling a story with the word “alleged” or “rumoured” doesn’t insulate the publisher from a defamation lawsuit.
The publisher is still passing on someone else’s allegation or gossip. Does this mean that radio stations are liable for what guests or callers say on live television or radio talkback? Yes. Surprisingly, there are few such lawsuits against broadcasters, even in the inflammatory talkback arena.
What if the publisher is reporting about suspicions? This is a very tricky area. The precise meaning of what was said will often be contested. Courts may take a report of suspicions to convey an impression of guilt.
More subtly, they may find that the report suggests there are “reasonable grounds” for believing or investigating wrongdoing. In that case, the publisher wouldn’t have to prove guilt, but would have to prove there is good reason to suspect guilt. Can humour be defamatory? Yes. Humour, satire, sarcasm, cartoons and spoofs that make fun of people can be defamatory, by holding people up to ridicule unfairly. But it can be difficult to predict whether a court will say “although dressed up as a joke, the barb is defamatory and damaging” or “no- one would take this seriously, it’s obviously just a bit of fun”. Decisions have gone both ways.
Is it defamatory to falsely suggest that someone is gay? Although social standards are changing, this is still likely to be regarded as defamatory. At the very least, by wrongly calling someone gay, a publisher is almost certainly also effectively accusing them of lying to their friends and partners. Can a dead person be defamed? No. But coverage about the wrongdoing of a dead person that reflects badly on friends or associates who are still alive may defame them. Can corporations sue?
Companies and other corporate bodies can sue for defamation, but only if they can show that it has caused them (or is likely to cause them) financial loss. What are the defences to a defamation lawsuit? The main ones are truth, honest opinion and qualified privilege.
How does the defence of truth work? The publisher will succeed with a defence of truth if it can prove, on the balance of probabilities, that the story was true. Minor errors may be excused, but not those that go to the heart of the defamatory sting or stings. Even when a story is true, however, it can sometimes be hard to prove. Promises of confidentiality may have been made to key sources.
Truthful witnesses may be unconvincing. Documentation may be hard to verify as authentic. What’s more, there are often arguments about exactly what the publication means. What if a source provides an affidavit verifying the facts in the story? These are not Holy Scripture. They are helpful in formally recording what a source believes, but they don’t convert the source’s information into bulletproof facts. What is honest opinion?
This defence used to be called “fair comment”. It allows the media others to express opinions, even though they may be critical of someone and harmful to their reputation. The idea is that opinions are matters of evaluation, not truth, so readers can decide whether they agree or not. This defence can protect editorials, blog posts and comments, letters to the editor, reviews, cartoons, talkback, op- ed pieces, and the like.
The opinions must be: clearly comment, not assertions of factbased on provable facts set out or referred to in the story andhonestly believed. Can honest opinion protect speculation about facts? Yes, but only if it is carefully phrased. The problem is, speculation about facts can often look an awful lot like an assertion of facts. And an assertion of facts can only be defended by proving their truth.
A story that does not clearly set out the facts that the speculation is based on, separate what is known from what is speculative, and clearly indicate that the where it is being speculative runs the risk of losing this defence. Parliament and the courts recognise that some speech is so important to society that we can’t have people worrying about being sued for it. So the law protects what it calls “privileged” statements. The classic examples are statements made by MPs on the floor of the House of Parliament, and witnesses in court proceedings.
They cannot be sued for their statements, even if they are defamatory. There are two main branches of privilege. The first comes from statute law. The Defamation Act contains protection for reports about particular events and occasions (court hearings, Parliament, public meetings, government inquiries, etc). This means that the publisher has a defence even if it’s repeating something that was said at the meeting, etc, that was defamatory – but generally only if the story is fair and accurate and made in good faith.