Court Reporting 11 - General Principles of Defamation

The golden rule is that if what is planned for publication seems likely to lead someone to threatening defamation, journalists should take professional advice.

Defamation law protects an individual's character from an unjustified attack. Publication of a statement making such an attack may be found to be a tort - a civil wrong - for which a court may award damages.

It's a statement which causes or is likely to cause serious harm to the reputation of a person or organisation. A published defamatory statement is a libel, for which damages can be awarded if what is said cannot be successfully defended.

Defamation action begins with the issue of a claim form.

A publisher sued for defamation may choose to defend the case all the way to a trial at the High Court.

Innuendo - used to describe an indirect hint or suggestion that a statement may have a defamatory meaning

Inference - refers to the meaning that a reasonable reader would draw from words in addition to their literal meaning

Publishing the wrong photo in a defamatory context, even if the person's name is not included, can be costly e.g. publishing a photo of an event with people holding drinks is fine. But if that photo is later used as a stock image to illustrate the perils of drinking alcohol, those pictured may sue because the inference is that they have an alcohol problem.

Placing a photograph incorrectly or using the wrong picture can wrongly suggest that someone shown is a person 'identified' in the accompanying story.

The claimant must prove that the published material identifies them. Omitting a name may not be a defence.

Derogatory comments published about an institution, business, or company can affect the reputation of the person who heads or manages it - newspapers have had to pay damages to headteachers, who were not named in stories, for reports criticising schools.

The defence of absolute privilege is a complete answer and bar to an action for defamation. It does not matter if the words are true or false or if they were spoken or written maliciously.

Absolute privilege covers:

• judicial proceedings
• parliament
• solicitor-client communications
• fair and accurate reports of court proceedings

The only time journalists can have absolute privilege is in contemporaneous reports of court cases, including tribunals.

The requirements of absolute privilege areL

• a fair and accurate report of judicial proceedings held in public in a court anywhere in the world, published contemporaneously (Defamation Act 1996)

Schedule 1 of the Defamation Act 1996 lists statements to which the statutory form of qualified privilege applies. It applies to:

• press conferences
• Parliamentary debates
• public meetings of councils
• media reports of statements issues for the public by government departments, councils, police, and other agencies.

It also protects non-contemperaneous reports of court cases held in public.

The defence's requirements differ from those of absolute privilege. For absolute, the publisher's motive is irrelevant. But a qualified privilege defence will face if the claimant can show malice by the publisher or author.

The basic requirements of the defence are:

• the report must be fair, accurate, and published without malice
• the matter published must be of public interest

Even if a journalist and their editor are convinced a story is true, they may be unable to prove it in court. People needed as witnesses to an event may not wish to become involved in a defamation case; witnesses' memories may prove unreliable; they may forget detail by the time a trial begins.

The truth defence requires that the published material complained of can be proved in court to be 'substantially true'. Meeting this requirement gives the publisher complete protection against a defamation action.

The defence applies to statements of fact. If the words complained of are an expression of opinion, they may be defended as honest opinion.

The material must be proved 'on the balance of probabilities.'

The defence of honest opinion protects published opinion, not any statement put forward as factual. Section 3 of the Defamation Act 2013, which created the honest opinion defence, abolished the common law defence of 'honest comment' formerly known as fair comment.