Libel: The Legal Challenges Journalists Face
An easy guide to defamation law with celebrity examples to help you understand!
Journalists face a wealth of legal challenges that they have to consider before they publish an article, which often we as readers never think about. Defamation lawsuits are definitely the most common and often the most expensive, especially in terms of celebrity culture where their privacy is constantly invaded.
So, how can journalists avoid defamation?
“Defamation is a publication of an untrue statement about a person that tends to lower his/her reputation in the opinion of ‘right-thinking members of the community’.” (Sim v. Stretch 1936)
Defamation law (2013) protects people against untrue statements that could damage their reputation. In order to sue for defamation, the claimant must prove the following 4 things:
- Defamation — the material has had a negative impact on their reputation
- Serious Harm — the material has/will cause serious harm to the claimant
- Identification — the claimant must prove the material is about them. This could be through name identification (known as jigsaw identification, where there are clues in the material that make it known who the material is about)
- Publication — the statement was published by a third party
This is relative to the two forms of defamation which are known as libel and slander.
Slander is when a defamatory statement has been made in ‘transient’ form, including physical gestures. This is much harder to prove as it often becomes hearsay and one person’s word against another.
Defamation acts involving slander are less common in comparison to…
Libel is when a defamatory statement has been made in ‘permanent’ form, which can be through material such as books, newspapers, or online, as well as television and radio.
Examples of Libel
British actor Russell Brand sued The Sun for defamation because of an article published about his suspected infidelity when in another relationship; Brand’s solicitor claimed that the allegation was “hurtful, distressing and damaging to the claimant”, and was deceiving the public about his character. The Sun initially refused to remove the material and issue an apology, which led to Brand publishing his own article in The Guardian soon after about the distress caused, which in effect led to legal action on his part with successful results.
Brand came out victorious, with The Sun’s publisher agreeing to pay his legal fees and damages, believed to be at least 5 figures. After losing the libel case, the publisher “now accepts” that the claims were untrue and also accepts that they were damaging to Brand and should never have been published.
However, it is important to understand how defamation is not limited to just written statements. Many cases can stem from things that are far less obvious, which means law for journalists can be increasingly difficult to navigate.
Possible unobvious areas for defamation for journalists to watch out for are innuendos, captions, exaggerations, visuals, juxtaposition, and jigsaw identification.
Juxtaposition for example can be a more difficult problem, as it looks at the combined impression of words and film meaning that a story completely unrelated to the person can appear to be linked due to the newspaper or television layout. ITV settled a defamation claim in 2015 with an electrical company, after “inadvertently” linking them to a drug trafficking in a broadcast with footage linking their premises quite prominently to the ‘fake business’ used as a cover to import cocaine.
Cases like this allow journalists to understand that despite something appearing harmless, it could progress into a timely and costly court case.
Are there any defences?
The answer quite simply is yes there are, firstly if they can prove the defamatory statement to be true with evidence, they are covered by the truth defence. A recent example of this is through Hollywood star Johnny Depp losing his libel case against the Sun as they managed to prove their defamatory statements with sufficient physical evidence provided by Mrs. Heard. Which, if you are keeping up with current affairs is relevant as Depp is now claiming defamation in a lengthy trial against his ex-wife Amber Heard for loss of earnings and defamation of character.
Another defence that can be used is the honest opinion defence, where the defendant would have to prove that the statement was one of opinion, not a matter of fact.
Public interest defence is where defamatory statements are published as it is believed the public has a right to know.
The final line of defence is of absolute privilege, the main idea here is that freedom of speech is of greater importance than the protection of one’s reputation.
Ways to avoid defamation as a journalist:
There are some easy ways to avoid defamation, despite it seeming completely overwhelming at this point. One is by checking facts, as obvious as it seems all journalists should be checking their information and sources before publishing in order to prevent any issues with libel from coming back to bite them. Another way to avoid defamation is to use phrases that indicate an opinion rather than fact, with phrases such as “I think” or “in my opinion”.
Another tip is to only use direct quotes from what has been said or written in interviews conducted by the journalist themselves, as it is the simplest way to defend a defamation claim. An example of this comes directly from Mandel vs Enfield Gazette and Advertiser, where the newspaper was able to supply notes from the interview process, which led to the claim being denied as there was sufficient proof supporting the statements that had been written were in fact said.
These may seem obvious, but it is much better to be safe than sorry! As your job could be at stake and the legal fees are substantial, especially in defamation law.