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Defamation - the Basics

Presented here are some of the basic facts relating to defamation and related crimes in UK law (written on 17 August 2002). The law is always evolving so you should always be ready to check on updates which affect publishing and authorship before a publication is distributed. If there is any possibility of a piece being considered defamatory or legally sensitive get it checked out by a legal professional - withdrawals, reprints and legal proceedings can be time consuming and costly. Writers and journalists should always inform publishers and superiors in advance or as soon as they aware of the possibility of legal action relating to a piece.

What is Defamation?

Defamation is the publicising of a false statement or imputation to discredit the subject. There are two main offences associated with defamation - libel and slander.

Defamation cases can be long and costly because they are done through trial by jury. The case often hinges on whether the jury feels that the subject was discredited.

Libel

The defamation is libellous if text goes to an unknown audience. The subject of the libel only needs to prove the discrediting nature of the publication, they do not need to demonstrate a resulting quantifiable loss. As a guideline, if the comments may damage the person’s reputation or expose them to ridicule, hatred or contempt then they are libellous.

In addition to publishing printed materials, spreading a discrediting false statement through the following media is also considered libellous: films, broadcasts, plays and e-mail.

Slander

Slander is through the spoken word and to a known and immediate audience. In order to be successful with a slander case the subject needs to prove that they have suffered quantifiable damages as a result of the statement. The following types of statements are exceptions to this requirement: accusations of a crime punishable by imprisonment; allegations of contagious disease; imputations on a person’s ability to carry on an office, business or profession, or on the reputation or credit of a trader; imputations of adultery or unchastity in women.

Important Points about Libel and Slander

The laws regarding libel and slander only apply to living people. You cannot defame someone who is dead.

Truth is an absolute defence.

Statements must be seen to be fair comment. Also, if you can show that the statement is a generally held opinion, was written without malice and in good faith then you stand a good chance of making a defence.

Disclaimers hold no legal weight whatsoever. If you state that the resemblance of characters in a book, film, broadcast, play or e-mail to living is purely coincidental this will not stand as a defence. If you change someone’s name in a publication but everyone still knows who the person is you will still be liable. Even if you change other details, if the person mentioned is recognisable and is discredited in the eyes of the public then you will be liable.

Even if you prove you did not know you were libelling the subject you will be bound to print an apology and/or retraction and remove copies of the the libellous publication from circulation.

With libel it is possible to argue that you libelled the person by accident but you must be able to prove that there was no intent to libel. If you can show that you went to appropriate lengths and did extensive recorded background checks in an attempt to ensure that you didn’t libel the person your case is stronger.

Distributors and librarians are considered subordinate disseminators if they have no knowledge of the libel (this is called innocent libel). Under the Libel Act 1996, people who only operate equipment to handle the medium but are not responsible for producing the content of the text are only considered secondary publishers and are not held responsible if they took reasonable care in terms of setting up reasonable checks and usage guidelines and they did not know of the possible libel. Authors, editors and publishing companies have no such provision, they are deemed to know what is in their publications and are entirely responsible for the content.

Privileges

There are certain cases where statements are in the public interest and as such are protected from defamation-related legal action. It does not matter that the statements are untrue if the author or speaker has a social obligation or professional duty to employ freedom of speech in the interest of the general public. In this case the author or speaker is afforded either absolute or qualified privilege.

Absolute privilege means that the discredited subject has no legal redress. Absolute privilege is given to:

• Hansard (the official report of parliamentary proceedings)
• court reports produced at the time the case was decided (so long as they are fair and accurate)
• official parliamentary and government reports
• MPs and parliamentary peers
• court statements
• courts martial
• statements at tribunals and inquests
• statements of government ministers and senior civil servants in the course of official duty
• statements of armed forces officers in the course of official duty.

Qualified privilege means that certain restrictions are placed on protection from prosecution. The discredited subject needs to show malice on the part of the author, speaker or publisher to succeed in an action. If statements are made in the public interest, in the course of professional duty or are reports of proceedings they are covered by qualified privilege so long as they are not malicious.

Journalists and the media have qualified privilege because, in the interests of democracy and freedom of speech, they report to the general public. The distinction needs to be made however between items in the public interest (ie to the benefit of the public) and items of interest to the public (ie ones which the public may find interesting such as celebrity gossip). The former are covered the latter are not. For the qualified privilege to apply a journalist or writer needs to show that they did everything reasonably possible to produce a fair and accurate account of the item reported in the public interest.

Related Crimes

Related crimes include criminal libel, blasphemy and blasphemous libel.

A criminal libel is one of a serious nature which is brought to prevent a breach of the peace rather than to protect the reputation of a discredited individual. When defending against criminal libel it is necessary to prove truth and benefit to the public.

In the UK, blasphemy and blasphemous libel only applies to the degradation of Christianity. This has caused complaints of unfair treatment by followers of other religions resident in the UK. The bringing of blasphemy and blasphemous libel cases is rare and in 1981 the Law Commission recommended abolition of the crime of blasphemy.

Other criminal offences related to publishing include publishing obscene publications (ie ones which “deprave and corrupt”), sedition (incitement of hatred of the monarch or parliament) and incitement to racial hatred.

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