Media Law lecture -- Feb. 6: Libel law, cont'd

For next class -- Ch. 20

Libel, cont’d

Quiz of the week:

• What is the Reynolds Defence? What are the ten factors?
• What is the offer of amends defence? An example of when it can be used?
• What is the defence of innocent dissemination?
• What is the difference between general damages and special damages?
• What is the rule in Bonnard v. Perryman

Defamation defences

Justification

• Burden of proof is on the broadcaster/publisher
• How are you going to prove the truth?
• What is the evidence you can rely on?
• Assessing the evidence

Fair Comment

• An opinion
• Based on true facts
• Made honestly
• “True test is whether the opinion is being made honestly by the person giving it.”
• Bonnard v. Perryman
• Has to be made without malice
• Can also be considered as being published with recklessness.
• Not very successful as a defence standing alone.
• Berkoff v. Burchill (1996)
• Latter wrote a review in Sunday Times. Said “From Hitchcock to Berkoff, directors are notoriously hideous-looking people.” Compared Berkoff to Frankenstein monster.
• Times made application to strike case out; argued fair comments.
• Both high court and court of appeal dismissed Times application.
• Associated Newspapers v. Burstein (2007)
• Playwright tried to sue about a play re: suicide bombers after reviewer said the play had anti-American undertones.
• Playwright failed, judges argued writers of creative work necessarily expose themselves to criticism.
• Dee V. Daily Telegraph (2008)
• Player described as “World’s worst tennis player” after having lost a ton of matches.
• Case was struck out; ruled that newspaper didn’t have to inconclusively prove he was the worst player in the world.
• Spiller v. Joseph (2010)
• Supreme Court said the defence should be referred to as “Honest Comment” instead of “Fair Comment”.

Offer of Amends

• Honest mistake
• Defendant can claim a defence of Offer of Amends if they try to correct the mistake.
• §2-4 defamation act of 1996.
• Mistake must have been made without malice.
• Essentially a guilty plea; usually involves a settlement.
• Damages often reduced than if went to a full hearing.
• Nail v. News Group Newspaper (2004)
• Nail was given lesser damages because News Group had made a rejected offer of amends.

Live Broadcasting

• Innocent dissemination
• Defamation Act 1996.
• Defence applies if the broadcaster can show it did not control the person making the statement, they took reasonable care in the circumstances, and did not think anything it did contributed to the publication of the statement.
• Applies to interviewees; not staff journalists.
• If somebody says something untrue (or even swears live), host can step in and apologize on the spot.
• If service is a mere conduit with no editorial oversight, then they are not responsible.
• Problems: disincentivizes patrolling commenting channels
• Law doesn’t protect responsible broadcasters

Defence of Privilege

• Defamation act 1996 -- statutory privilege
• When reporting courts, parliaments or councils, it’s subject to privilege set down in councils.
• However, the Reynolds Defence (i.e., public interest) is a commonlaw approach.
• Absolute Privilege
• Contemporaneous fair and accurate court reports
• If you’re being fair and accurate while reporting contemporaneously, you’re protected.
• Qualified Privilege
• Malice/explanation
• Fair and accurate court reports
• Reports of a legislature here and abroad
• Public meetings
• McCarten Turkington Breen v. Times Newspapers (2001)
• Times claimed privilege because statement made in a press conference (public meeting).
• Commonlaw Qualified Privilege
• Establishes a defence where newspapers are able to report things in the public interest.
• Reynolds v. Times Newspapers (1998)
• Albert Reynolds had made statement and had been accused by Times of misleading the Irish parliament. Went to the House of Lords, Times’ case was that it was in the public interest to report what happened in a parliament and should not fear legal proceedings by politicians. Times lost on the facts, but new precedent was set.
• Judges set down 10 point test: 1. Seriousness of allegation 2. Source of information 3. Steps taken by the journalists to verify information 4. Tone of article -- making statements or requesting investigation? 5. Urgency of the matter 6. And on...
• Grobellaar v. The Sun (2001)
• Investigation in the Sun making allegation that a goalkeeper had taken money to not make saves.
• Court of appeals said qualified privilege would not apply in that case.
• Galloway v. The Telegraph
• Telegraph documents had suggested that Galloway had been in collusion with the Iraqi foreign embassy and had acted improperly. Galloway was named in documents.
• Report wasn’t objective enough; wasn’t level-headed enough in its reporting.
• Exception: GKR Karate v. Yorkshire Post (2000)
• Newspaper argued GKR was selling dodgy karate lessons
• Court ruled that it was in the public interest to bring report to public, even though it was found GKR was in the right.
• Jameel v. Wall St Journal (2007)
• Resurrected Reynolds
• WSJ level-headedly and evenly reported about a bank and its potential links with terrorists.
• Journalism should be allowed to flourish and there should be protection for investigative journalism within the law.
• Test less set in stone than pointers.
• Protects reports in the public interest, not celebrity gossip.
• If reporting on a matter of public interest in a level-headed, responsible manner, you may have a defence even if you get it wrong.