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READ: DEFAMATION LAW

1. What are defamation and libel?

Defamation is any published material that damages the reputation of an individual or an organisation. This covers material on the internet as well as radio and television broadcasts - so even drama and fiction can be defamatory if they damage someone's reputation. You can only publish defamatory material if it comes within one of the recognised legal defences. If it doesn't, the publication will amount to libel and you may have to pay substantial damages.

Libel online
Slander is 'defamation by word of mouth' Internet sites are not exempt from any libel laws. If you are publishing on the internet you are bound by the same libel laws as print publishers.

In a significant ruling in 2002, the Australian high court ruled that mining magnate Joseph Gutnick could sue publisher Dow Jones under Australian law for alleged libel online. The judge deemed that the web was no different from newspapers or television.

In the UK, internet service providers are coming under increasing pressure to close sites containing defamatory allegations. You also have to be careful about the comments others post on your site. There have been cases where individuals have sued online publishers for libel over customer book reviews published on their sites.

Such developments have implications for freedom of expression.

The purpose of libel law
Libel law protects individuals or organisations from unwarranted, mistaken or untruthful attacks on their reputation. A person is libelled if a publication:

Exposes them to hatred, ridicule or contempt

Causes them to be shunned or avoided

Discredits them in their trade, business or profession

Generally lowers them in the eyes of right thinking members of society
For example, MORAL rights campaigner Victoria Gillick recently won a ?5,000 settlement and an apology after taking libel action against the Brook Advisory Centre, a charity which gives sex advice to young people, over allegations that Brook had suggested Mrs Gillick "bore a moral responsibility" for an increase in pregnancies among teenagers. A fact sheet published by Brook contained the heading "What caused the teenage conception rate to rise in the 1980s?", and listed a legal action brought by Mrs Gillick against the Department of Health over contraception guidelines as one of the causes.


2. Get your facts right

The most important point is to make absolutely sure that what you are printing or writing is true. Do not make claims or accusations that you cannot prove. Even if you think you can do this, be cautious. Proving things in court can be very difficult.

And the test of what the words mean is what a reasonable reader is likely to take as their natural and ordinary meaning, in their full context - what you intended as the author or publisher is irrelevant.

If you write something that cannot be substantiated the credibility of your site, organisation or cause may be questioned. It can also land you with an expensive lawsuit and there is no legal aid for libel cases.

The burden of proof lies with the defendant
Almost uniquely in English law, in libel cases the burden of proof lies with the author / publisher and not the complainant. In other words, you have to prove that what you write is true. The person you've targeted does not have to prove that you're wrong.

McLibel
In 1990 McDonalds served a libel writ on several members of a campaigning organisation over the production and distribution of the "What's Wrong with McDonalds?" leaflet. The legal battle between Helen Steel and David Morris, a gardener and a postman, and the McDonalds corporation became one of the most famous cases in British legal history, not least because it became the longest running British trial.

To win the case, the pair would have to prove from primary sources the truth of their allegations about McDonalds. After hearing all the evidence, the judge (who did find that some of the allegations were true) ruled that the pair had libelled McDonalds because the evidence they called was not enough to prove the majority of their statements. They were ordered to pay damages of ?60, 000. The trial was estimated to have cost millions of pounds in legal fees.


3. Tips for writing

Libel is 'defamation in a permanent form' Don't rely on the literal meaning
You cannot solely rely on proving that your statements were literally true if, when they're taken as a whole, they have an extended, more damaging meaning. Also, for example, if somebody was guilty of fraud once, calling him a fraudster in a way which might suggest he's still doing the same may well give rise to a libel which can't be defended. Be especially wary when referring to events in the past.

 

Don't exaggerate in your claims or language
For example, a company may run a factory which produces certain chemicals. For you to suggest that babies will be born deformed as a result may get you into libel trouble.

Innuendo can catch you out
Your comments may not appear particularly defamatory taken at face value, but greater knowledge of a person or situation may make it problematic because of the innuendo. To say Mr Jones doesn't recycle his waste paper may sound harmless enough. But to people who know that Mr Jones is a Green Party activist, the innuendo of the statement is that he is hypocritical in his politics.

 

4. Common mistakes and assumptions

Repeating rumours
It is inadvisable to repeat a defamatory rumour unless you are in a position to prove it's true. Even if you are contradicting the rumour you should not repeat it. And adding "allegedly" is not enough to get you out of libel difficulties.

Quoting others
If you publish defamatory remarks about people or organisations made by other people you will be just as liable to be sued as they are. So if you can't prove the truth of their statements, don't repeat them.

Drawing unprovable conclusions
It is a common mistake to draw unverifiable conclusions from the basic facts. For example, if Mr Brown is seen going into a hotel room with a call-girl, this does not necessarily mean he enjoyed a "night of passion", and will certainly not prove that he did.

Irresponsible adjectives
Be very careful about the adjectives you use. A misplaced word can result in costly action. If you are campaigning about a factory that releases chemicals into the atmosphere, referring to the factory as "poisoning the atmosphere" is inadvisable!

Representing all sides
Presenting all sides of an argument is often good practice, but is not a defence against publishing defamatory remarks made by or about those involved.

 

5. Defences against libel

The law lays down a number of ways in which defamatory publications may be defended. If the defences succeed, the publisher wins. But if they don't succeed, the publisher loses: the complainant will have been libelled and will therefore be entitled to be paid damages and their legal costs. The defences are listed below.

Justification
The most usual defence against libel is to prove that the information published is true. But this can be a dangerous route because an unsuccessful plea could increase the damages against you because you will have increased the harm to the complainant. And remember, you must be able to deal with every libellous possibility, such as inference and innuendo. If your statement infers something greater, it is not enough to prove that the statement is just literally true. Merely asserting something will not be sufficient to prove that it's true - you will need witnesses and documents to back up assertions (whether they're yours or someone you're quoting).

Fair comment
Fair comment covers content, mainly opinion, that cannot by its very nature be true or false. To be properly defensible, these comments must be:

  • Based on fact
  • Made in good faith
  • Published without malice

On a matter of public interest
In 2001, the Daily Mail lost a libel action brought by the former Tottenham Hotspur chairman Alan Sugar over the remark that he was a "miser" when he ran the club because he didn't give his manager enough money to buy top class players. The jury were not sufficiently persuaded that there was any factual basis for making this comment. They didn't deem it fair comment. He was awarded 100,000.

Privilege
Privilege is the defence where the law recognises that individuals should be free to speak their minds (and others to report what they say) without fear of being sued even if they get their facts wrong. It allows people to speak freely in court proceedings and debates in Parliament, and allows for such proceedings to be reported, so long as the reports are both fair and accurate.

6. If a complaint is made

Remember the burden of proof lies with the author. What follows does not constitute legal advice, but if a complaint is made against you or your campaign, you could consider one or more of the following steps, depending on how serious the complaint is or how far you wish to pursue your case:

Take legal advice as soon as possible and before responding to the claimant.

Check the original statement and any associated investigative work collected before it was written.

Consider withdrawing the original statement if, after checking, you think your words were mistaken.

Perhaps do further investigative work to help explain your position.

Keep all drafts and supplementary documentary evidence.

Ensure all those involved in the writing and research of the statement are aware of the situation and aware they may have to provide evidence or statements.

Inform your insurers, if you have libel insurance, and comply with their requests.

Borrowed from the B B C web site.

More...

ELEMENTS OF DEFAMATION IN UK

[ please visit original KELLY / WARNER article for more information and help ]

UK DEFAMATION STATUTE OF LIMITATIONS

Prior to the Defamation Act of 2013, the Defamation Act of 1996 governed slander and libel law in England and Wales. Under Articles 5 and 6 of said act, “no such action for defamation shall be brought after the expiration of one year from the date on which the cause of action accrued.”

HOW TO WIN A DEFAMATION LAWSUIT IN THE UK

In order for a claimant to succeed in a defamation lawsuit, the following must be true:

  • The statement in question must be a negative false statement of fact;
  • The statement in question identifies or refers to the claimant;
  • The statement in question was published.

SLANDER V. LIBEL IN THE UK

There are two forms of defamation:  libel and slander.  Libel is published defamation, while slander covers defamatory statements in transient forms, such as speeches. Forms of UK defamation include:

  • Print ;
  • Broadcast (Broadcasting Act of 1990);
  • Film or Videos;
  • Internet; and
  • Statements made during public performances of a play (Theaters Act of 1968).

Under UK law, the important issue to consider is not how the defamatory statement makes the victim feel, but the impression it’s likely to make on people reading it.

PUBLICATION AND RE-POSTING DEFAMATION IN THE UK

Publication over the Internet occurs when a reader accesses the text.  This means that a fresh publication takes place every time someone reads the material.  (see Loutchansky v. Times Newspapers Ltd. (No. 2) [2001].)

A claimant isn’t necessarily required to prove someone read a story, but if the defendant can bring evidence that it had not been read, or read by a very few people within the court’s jurisdiction, such a defendant may avoid liability.

In Jameel v. Wall Street Journal [2006], the Wall Street Journal was able to prove that a defamatory article had only been downloaded by five people in the U.K., which included the claimant’s lawyer.  The courts ruled that there had been “no substantial publication” in the U.K.

However, in Loutchansky v. Times Newspapers Ltd. (No. 2) [2001], the judge concluded there was a “reasonable inference” that the material had been read in the U.K. since the Times’ website enjoys 12.5 million visits a month.    That said, under Regulation 19 of the 2002 Electronic Commerce (EC Directive) Regulations, websites and ISPs are not liable for damages if they:

  1. Didn’t know the material under review was defamatory;
  2. Were not aware of the circumstances or facts which would have told them it was defamatory; and
  3. Acted quickly to remove access to the material once they did know.

WHO CAN SUE FOR DEFAMATION IN THE UK?

In the UK, individuals, legally incorporated businesses and association can sue for slander or libel.  Elected authorities cannot sue for defamation over issues relating to their governmental or administrative functions, but they may sue for malicious falsehood.  A member of a political party may also sue for libel over defamatory statements about the party which reflect on their personal reputation.

DEFAMATION DEFENSES IN UK

Acceptable defenses in a U.K. defamation case are:

  1. Justification (truth);
  2. Qualified Privilege (defendant did not act with malice; reporting of proceedings in a foreign court);
  3. Reynolds Privilege (subject matter was sufficiently in the public interest, journalists researched carefully and behaved responsibly);
  4. Absolute Privilege (fair and accurate reporting of domestic court proceedings);  or
  5. Fair Comment (matters of legitimate public concern that constitutes a comment, rather than a statement of fact, which an honest person could make on those matters [i.e. critique or film review]).

JURY OR JUDGE UNDER UK DEFAMATION LAW

In the UK, most defamation cases are settled out of court.  If parties can agree, the jury can be dispensed in favor of a single judge.  There are statutory provisions permitting a trial by a judge alone, if the case involves a significant number of documents or complex technical issues.

LIBEL TOURISM AND THE UK

Why is the UK known as the “libel tourism” capitol of the world?  Aside from a “no win, no fee” contingency, damages awarded to libel claimants are high.  As the term suggests, libel tourism is the practice of non-UK citizens or companies using UK courts for defamation cases because existing laws in the British Commonwealth favor plaintiffs. However, since the passing of the UK Defamation Act of 2013, libel tourism is expected to decrease.

http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted


 

U.S. DEFAMATION LAWS & STANDARDS

FEDERAL DEFAMATION STATUTES

DEFAMATION: SLANDER V. LIBEL

Defamation — also called slander (for spoken or otherwise transitory statements) and libel (for written or otherwise published content) — is:

"the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image."

WHAT PLAINTIFFS MUST PROVE TO WIN A DEFAMATION LAWSUIT IN THE U.S.

To win a U.S. defamation lawsuit, the plaintiff, at the very least, must prove that the defendant:

  • Published or otherwise broadcast an unprivileged, false statement of fact about the plaintiff;
  • Caused material harm to the plaintiff by publishing or broadcasting said false statement of fact;
  • Acted either negligently or with actual malice;

FREE SPEECH V. DEFAMATION

In the United States, federal defamation law is closely tied to the First Amendment. As a result, federal slander and libel laws are more defendant-friendly in the U.S. than those in common law countries, like the U.K. and Canada. In short, opinion is not considered defamation in the U.S. That being said, false statements of fact that harm the reputation of an individual or business, aren't protected under Constitutional Free Speech provisions.

INTERNET DEFAMATION LAW: SECTION 230 OF THE COMMUNICATIONS DECENCY ACT

The United States also has a unique law governing accountability as it relates to acts of online defamation -- Section 230 of the Communications Decency Act. In short, the statute absolves Internet service providers (hosting companies, websites, developers, etc.) of defamation liability over user comments and content. It's why Facebook, the corporation, is not sued every time an individual Facebook user commits an act of libel on the platform.

ACTUAL MALICE

If the plaintiff is deemed a "public figure," the standard of actual malice must be met. 

In addition to the federal standards, each state has a set of slander and libel laws.


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