Having previously discussed the various restrictions on journalists in the UK, and the law regarding what can and cannot be published, it is important to be aware of the defences available, should a law suit be filed against a reporter.
As outlined in my previous law post, journalists, when reckless, can find themselves being sued for defamation. This offence is divided into two areas, slander (defamatory statements made in a transient form) and libel (defamatory statements made in a permanent form).
As with any offence, when in court the defendant can use one of a number of specific defences, in the case of defamation, the main defences available are:
- Justification
- Fair Comment
- Absolute Privelege
- Qualified Privelege
In lamens terms, Justification is proving that the offending statement was truthful. Obviously, this defence may only be used when the offensive comment was phrased as a statement of fact, it cannot defend opinion. The burden of proof is on the defendant to prove that the statement is true, 'on the balance of probabilities'. This of course makes it a difficult defence to use; however, there is some benefit to the defendant, in that only the most damaging allegation (the sting) must be proved true, rather than the entire piece. Despite this, the fact that many such cases are decided by juries means that if some statements are not proved to be true, the integrity of the defendant in the eyes of the jury could become vulnerable. Additionally, inferences and innuendoes must also be proved, so if a statement could have multiple defamatory meanings, each one must be proved to be true. This overall makes the defence very hard to successfully use, as there is so many requirements to meet for the defendant. As a result, journalists must be incredibly careful as to what information they present as being factual, as, if they do not have compelling evidence that their statement is accurate, they are likely to lose in court.
The second major defence availalable is that of Fair Comment. Fair Comment essentially means that the defamatory statement was merely the opinion of the writer, clearly not stated as fact and honestly held by the author, printed without any malice. The comment must also be based on fact or priveleged matter (although not necessarilly referred to within the same article, see 'Lowe v Associated Newspapers 2006') and must be of public interest. Any defendant using the defence of Fair Comment must run this defence in tandem with one of the other available defamation defences.
Importantly, the Defendant is not required to convince the jury or judge to agree with their opinion, only that the opinion itself is honestly held by the author. It is this defence that particularly protects reviews, as they are articles of comment based on experience.
Privelege as a whole protects complete freedom of speech where it is in the public interest to do so, regardless of whether the statements may be defamatory and later found to be untrue. It falls into two categories, Absolute Privelege and Qualified Privelege.
Absolute Privelege completely prevents any action for defamation, where the defence is available. Absolute Privelege is restricted to court cases and particular tribunals, and to be covered by Absolute Privelege, the contents of the report must be "a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously" - 'McNae's essential law for journalists'. This also covers the European Court of Justice, European Court of Human Rights, and any international criminal tribunal established by the Security Council of the United Nations or by an international agreement to which the United Kingdom is a party.
The requirements on reporting to qualify for Absolute Privelege are incredibly stringent, as it offers complete protection for the publication of defamatory material.
Firstly, the report must be fair, presenting a summary of both sides involved, no substantial inaccuracies and a balanced, unbiased view on proceedings. If it fails to achieve any of these, it immediately loses its protection under privelege.
Secondly, the report must be accurate, all allegations made in court must be attributed to an individual, so as to avoid preventing any allegation as fact. Journalists must also be careful to report the facts of the case accurately, simple, avoidable mistakes can disqualify a report from privelege. Thirdly, the report must be contemporaneous, meaning 'as soon as is practicable'. This would mean printing the report in the next available edition of the publication, unless reporting restrictions are in place, in which case it may be published in the first edition of the publication after restrictions are lifted. Earlier reports of court cases may be used later to place current proceedings in context, and will still attract the defence of Absolute Privelege.
The final main defence for Defamation is Qualified Privelege. This covers a far wider range of situations, including council meetings, public meetings and police statements, and has the same basic requirements - that the report is fair and accurate - however with the additional requirement that the report must be without malice. The report must also be a matter of public concern, the material published must be seen to benefit the public. Qualified Privelege can only apply when the reporter in question is predominantly motivated by providing information in the public interest, hence "Qualified".
There is one additional defence to Defamation available to journalists, the Reynolds defence, born out of a 1998 case between Reynolds and The Sunday Times newspaper. The Reynolds defence gives privelege to a story considered to be in the public interest, so long as it is responsibly reported. In the original case, Lord Nicholls set out a list of ten points which must be met for a story to fall under this defence. These requirements can be found in 'McNae's essential law for journalists', page 357. The overall conclusion is that the story must be in the public interest, with the information having come from a reliable source with satisfactory attempts made to verify the information, a comment sought from the claimant and an overall balanced tone and unbiased presentation in the article itself. Not every single one of the ten points must be met to use the defence, however it must be clear that the story was reported responsibly, with appropriate steps taken to ensure its accuracy and neutrality.
The availability of these defences mean that, the majority of the time, an accurate, responsible journalist should not be successfully sued. Of course, with many defamation cases meeting jury trial, there can be unexpected results, however these defences provide a good deal of protection for honest and professional journalists.
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