A REPORTER’S COMMON SENSE INTRODUCTION TO DEFAMATION By Caroline Sutton

What is defamation? In simple terms; If a defamatory statement is written or in a permanent form = libel If spoken or temporary form = slander.

Definition of a defamatory statement If it tends to do any one of the following: Expose the person to hatred, ridicule or contempt; Cause the person to be shunned or avoided; Lower the person in the estimation of right- thinking members of society generally; Disparage the person in his/her business, trade, office or profession.

Beware of gossip You can defame someone if you republish comments made or published by someone else. Don’t assume it is safe, just because someone else has written or broadcast it.

What does publication mean? Via newspapers or other printed media Broadcasting on radio and TV On the web - including online forums, social media and micro-blogging sites By .

A reasonable man or woman? The test of what the words actually mean is the test of what a reasonable person would take them to mean.

Innuendo and inference Words may carry an innuendo, a ‘hidden’ meaning clear to people with special knowledge or create an inference, obvious to everybody. Eg “Boy Slim was seen swaying as he left the Amsterdam bar with a friend in Kemp Town.”

The chilling effect Punitive – could exceed £1 million It is up to the journalist and publication to prove truth Can be sued whether you are the writer, editor or publisher. Can be sued if you are online, in print, or publishing your church newsletter

New laws launched this year The Defamation Act 2013 came into effect in England and Wales on 1 January Claimants have to prove ‘serious harm’ to their reputation. Such as ‘serious financial loss’ if a company. Individuals have to prove “serious harm”.

Don’t say It is no defence to say; ‘I’ve heard it’s true.’ ‘I didn’t mean to be horrible.’ ‘It was only a joke.’ The court assumes it is false, doesn’t care if it was intentional or not, and doesn’t have much of a sense of humour.

Tests for defamation Identification – it must refer to them or seem to refer to them. Publication – it must have been published in print or online to a third party. Is defamatory.

Your defence Justification/ Truth Fair comment /Honest opinion Absolute privilege Publication in the public interest

Defences The main ones are: Truth - the publisher must prove the comments are true. Honest opinion - the opinion must be genuinely held and based on fact. Privilege – only under certain circumstances. Publication in the public interest - a new defence.

Truth Take notes or a tape recording Back up any claims if possible Ensure your source is reliable and will stick by their story Get them to sign a statement if possible

Honest opinion It must be; on a matter of public interest, based on facts which are true recognisable as comment

Example of honest opinion A restaurant or theatre review is a classic example of a publication which may be protected by fair comment. Not – “He’s a terrible chef.” But “I think he’s a terrible chef because my meal was burnt when I ate there last week.”

Public interest Editors can use the defence if : they can prove the subject was on a matter of public interest, they reasonably believed that publishing was in the public interest. the story was balanced and neutral and thorough steps were taken to verify the facts.

Is it public interest? As Lord Hoffman observed “the public tends to be interested in many things which are not of the slightest public interest.”

Privilege Absolute privilege – you can report what is said even if it is untrue. Court cases Some tribunals Parliament – absolute privilege to MP’s and peers Peer-reviewed statement in scientific or academic journal

Defamation online – new laws it is a defence to show that it was not the website publisher who posted the statement on the website. The defence is defeated if the writer cannot be traced. Or the claimant was ignored when they complained.

Stop and think These phrases are usually defamatory. If you say a person is: A liar, A cheat Is insolvent In financial difficulties

Check your facts Think twice before accusing someone of being: Immoral Dishonest Corrupt Incompetent Guilty of a crime Producer of shoddy facts

Steer clear Of saying someone is: Having an affair Taking illegal drugs An alcoholic A paedophile A murderer A hypocrite A rapist Unless you can absolutely prove it with rock- solid evidence!

Check their pockets Suing for libel can cost a lot of money. Be careful if you are dealing with a rich person, celebrity or big company. No win, no fee. These days some lawyers offer this for libel cases making action more available for all.

Finally Use your common sense. If you are concerned about putting something in a report. Ask Is it true? Can I prove it? Can I back up my facts and rely on my sources? Is it essential to report?