This chapter covers the nature of libel law for UK media publication, the defences available and potential pitfalls. Focus on the defences of truth/justification, responsible journalism, honest opinion, absolute and qualified privilege, neutral reportage, innocent defamation, and the proposed web-site operator’s defence. Full coverage of the developing media law of privacy, how it operates and the potential defences. Full explanation of secondary media law in relation to inaccurate speech that neither harms reputation nor breaches privacy law and the implications in relation to print and broadcasting regulation. Duties in relation to published correction, apology, right to reply, and critical adjudication. Secondary media law on ‘unfair’ publication, causing ‘harm and offence’ and breaching impartiality and the law relating to ‘giving undue prominence of views and opinions’ in broadcasting. The print regulation on ‘distinguishing clearly between comment, conjecture and fact.’
Page 101. Reference in printed first edition to J.K. Rowling should read 'taken of her with her partner and child in Edinburgh.'
Page 104. The reference to the two cases from Germany in printed first edition should read 'in February 2012' not 2011.
In the printed first edition quotations and references to the text of the Defamation Bill 2012 have been cited as potential 'sections' of a new Act. Strictly speaking when a bill is tabled through the legislative process of Parliament the proposed changes are referred to in terms of 'clauses', and they become 'sections' following the Royal Assent.
Defamation Act 2013 and post Leveson Inquiry proposals for 'independent' regulation of print and online media through Royal Charter
It needs to be appreciated that its provisions do not apply to Northern Ireland. Only a few sections- 6, and 7(9), 15 (meaning of "publish" and "statement") and commencement provisions apply to Scotland. They relate only to peer-reviewed statements in scientific or academic journals, and fair and accurate reports of scientific or academic conferences held anywhere in the world and any copy, extract or summary published arising from such conferences.
Furthermore, the reforms in the Defamation Act 2013 will not be in force until the Secretary of State appoints its enactment by statutory instrument and a decision is not expected until the autumn of 2013.
This means most of what is described and analysed in the book text as existing UK libel law will be current and correct until late 2013 or early 2014.
It is also the case that some of the new law will not be available until one year after the Act comes into force. Under sub-sections 16(4) to 16(7) it is conceivable that publications litigated one year after the Act coming into force will be subject to the previous law.
Much of what was anticipated as being the sections of the new Act in the book's published text at the time of its writing has remained the case, with the exception of section 4 being turned into a 'Publication on matter of public interest' and section 1 having the subsection 1(2) added stating that 'harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.'
The passing of the Defamation Act is complicated by the political struggle over post-Leveson Inquiry press regulation reform:
1) Recognition, approval and appointment bodies for regulation of print and online media are to be created through a 'Royal Charter on Self-Regulation of the Press'
The Prime Minister intended to submit the charter to the Privy Council for the Queen's approval at its May 2013 meeting, but postponed the submission when the industry offered a rival Charter. The government-approved draft charter states that it can be changed only if there is a vote of two thirds of the House of Commons and two thirds of the House of Lords. This rule relating to all Royal Charters is to be legislated for by Clause/Section 71 of the Enterprise and Regulatory Reform Bill.
2) 'Incentives' for 'relevant' publishers to participate in regulation are to be legislated for in the Crime and Courts Bill 2012-13.
Here the burden to pay all the parties' legal costs in libel and other legal media disputes plus the risk of exemplary (punitive) damages are said to 'incentivise' the press to be regulated and participate in legal arbitration for libel, privacy and other civil media wrongs.
Parliament has substantially changed section 4 of the Act and transformed what was a responsible journalism defence into a public interest defence. In essence it could be argued they have simply followed case law and decided that Jameel v Wall Street Journal 2006 should replace Reynolds v Times 1999. The term 'responsible journalism' has been struck out and so have the 9 criteria that would have guided the courts. This change, which does have support of the government, may turn out to be very significant indeed. In the future the courts will not be invited to evaluate a list of factors (amongst other matters) when considering whether a media defendant 'had acted responsibly.' The legislation requires them to consider whether the defendant’s belief in publishing for the public interest was reasonable and to make such allowance for editorial judgment as it considers appropriate. The defence also covers fact and opinion.
This should encourage judges to understand the difference in cultures between the categories of 'broadsheet' and 'tabloid' publications. I would argue that the intention of the legislation is that judges should not determine whether they would have acted reasonably in the same way, but in the context of and having received submissions on 'editorial discretion or judgement.' The codifying of the common law 'neutral reportage' defence remains the same.
This is how the Section now stands:
'(1) It is a defence to an action for defamation for the defendant to show that— (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and
impartial account of a dispute to which the claimant was a party, the court
must in determining whether it was reasonable for the defendant to believe
that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
(6) The common law defence known as the Reynolds defence is abolished.
Summarising Reforms in Defamation Act
When the Defamation Act becomes law, I would argue that it would bring forward eight reforms of note for journalism and media publication apart from codifying previous common law:
1) Single publication rule;
2) Web operator's defence that will either further benefit online publishers with limited control over malicious, libellous and stalking authors, and/or work in the favour of claimants wishing to unmask 'trolls' and anonymous online authors attacking their reputation, and hoping to obtain damages from web hosting corporations that are unable to identify them;
3) Lower Qualified privilege (subject to explanation or contradiction) for peer-reviewed academic journals,and conferences, including online publication;
4) Higher threshold for so-called 'libel tourists' to sue in English and Welsh jurisdiction;
5) Extending absolute and qualified privilege categories for equivalent legal, government, public meeting/press conference contexts abroad;
6) A more liberal and flexible public interest defence that recognizes what media defendants reasonably believe to be in the public interest in relation to factual reporting as well as editorial comment, and an allowance for editorial judgement;
7) Restricting libel actions by bodies that trade for profit unless the serious harm in a statement has caused or is likely to cause "serious financial loss".
8) Consolidating and codifying neutral reportage with no obligation to verify truth of statements being reported.
Where previous common law has been abolished e.g. defences of justification, fair comment, and Reynolds responsible journalism, it is important to realise that when statutory interpretation is regarded as uncertain/unclear, the courts will be able to look at the previous case law as this would constitute helpful though not a binding guide. This means the book's inclusion of the old case law does serve a purpose and is not redundant.
The Defamation Act under Section 11 legislates for all defamation actions to be without a jury unless the court orders otherwise. Section 14 repeals the Slander of Women Act 1891 whereby special damage in slander did not have to be proved if a woman was accused of having 'a contagious or infectious disease,' and Section 15 defines statutorily that "statement" means "words pictures visual images, gestures or any other method of signifying meaning."
The political battle over Royal Charters to regulate the content of the press and online industries
While the Defamation Act 2013 is being hailed as progress for freedom of the media and expression, there is an intense political debate about how to reform content regulation of the print and online industries after the Leveson Inquiry Report of late 2012. It needs to be emphasised that until this is resolved the Press Complaints Commission and its Editors' Code of Practice continues to self-regulate the industry despite its declaration to the Leveson Inquiry in 2012 that it was prepared to undergo 'self-abolition.'
1) tough sanctions, with the new regulator having the power to impose fines of up to £1 million for systematic wrongdoing ;
2) up-front corrections, with inaccuracies corrected fully and prominently;
3) strong investigative powers enabling the regulator to investigate wrongdoing and call editors to account;
4) genuine independence from the industry and from politicians with all the bodies making up the new regulator having a majority of independent members appointed openly and transparently; and
5) public involvement in the framing of the Code of Practice which binds national and local newspapers and magazines.
The newpapers' Royal Charter is backed by most national, regional and local newspapers and magazines. The Guardian and the Independent are the only two national newspapers not supporting it.
It does not guarantee a free arbitration service to claimants for media civil wrongs, and only proposes that the “board of the self-regulatory body may provide an arbitral process in relation to civil legal claims against subscribers,” and “may consider operating a pilot scheme to test the fairness, effectiveness and sustainability of the arbitral process.”
It excludes Parliamentary power to block or approve future regulatory changes. Changes can only be made by the “unanimous support of the members of the recognition panel, the members of the board of the regulator and the members of the boards of all the trade associations.”
The recognition panel would be selected by an appointments committee chaired by a retired Supreme Court judge, should include someone who represents the publishers’ Industry Funding Body and would not exclude ex-editors.
Third party complaints would only be investigated if a breach of ethics was ‘significant’ and the public interest was ‘substantial.’ The regulator will have "discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby."
The power to ‘direct’ the nature, extent and placement of corrections and apologies would be changed to a ‘requirement.’
Public consultation will survey the opinions of newspaper and magazine readers.
A majority of serving editors will comprise the Editors' Code Committee but will include some independent members.
The regulator will operate a whistleblowers' hotline to enable journalists and media workers to complain about employer pressure to breach ethics or the law.
At this stage with the feathers and fur flying in a bitter political struggle, it is best to leave an analysis of the all party and Hacked Off Royal Charter and its accompanying legislation and update on any potential compromises, agreements if and when they occur.
An analysis of the "Hacked Off" and all party Royal Charter for regulating the press and associated legislation
The Leveson Inquiry and Parliament have not investigated in depth the modus operandi and impact of effectively making the press engage in legal arbitration for libel, privacy and other media civil wrong disputes, whereby failing to do so will result in having to pay all the legal costs of any High Court litigation and facing 'exemplary' (punitive) damages when they are unsuccessful. The draft Royal Charter appears to have copied and pasted most parts of the Defamation Bill amendment:
'The Board should provide an arbitral process for civil legal claims against subscribers which:
a) complies with the Arbitration Act 1996 (“the Act”);
b) provides suitable powers for the arbitrator to ensure the process operates fairly and quickly, and on an inquisitorial basis (so far as possible);
c) contains transparent arrangements for claims to be struck out, for legitimate reasons (including on frivolous or vexatious grounds);
d) directs appropriate pre-publication matters to the courts;
e) operates under the principle that arbitration should be free for complainants to use;
f) ensures that the parties should each bear their own costs, subject to a successful complainant’s costs being recoverable (having regard to section 601 of the Act and any applicable caps on recoverable costs); and
g) overall, is inexpensive for all parties.'
The new independent regulatory board is empowered by Royal Charter to:
'provide advice to the public in relation to issues concerning the press and the standards code, along with a service to warn the press, and other relevant parties such as broadcasters and press photographers, when an individual has made it clear that they do not welcome press intrusion.' [...] 'establish a whistleblowing hotline for those who feel that they are being asked to do things which are contrary to the standards code.' [...]
'require, of those who subscribe, appropriate internal governance processes (for dealing with complaints and compliance with the standards code), transparency on what governance processes they have in place, and notice of any failures in compliance, together with details of steps taken to deal with failures in compliance.' [...] 'require all those who subscribe to have an adequate and speedy complaint handling mechanism; it should encourage those who wish to complain to do so through that mechanism and should not receive complaints directly unless or until the internal complaints system has been engaged without the complaint being resolved in an appropriate time.' [...]
'have the power (but not necessarily the duty) to hear complaints:
a) from anyone personally and directly affected by the alleged breach of the standards code, or
b) where there is an alleged breach of the code and there is public interest in the Board giving consideration to the complaint from a representative group affected by the alleged breach, or
c) from a third party seeking to ensure accuracy of published information.'
[...] 'should have the power to direct appropriate remedial action for breach of standards and the publication of corrections and apologies. Although remedies are essentially about correcting the record for individuals, the power to direct a correction and an apology must apply equally in relation to: a. individual standards breaches; and b. groups of people as defined in criterion 11 where there is no single identifiable individual who has been affected; and c. matters of fact where there is no single identifiable individual who has been affected.' [...] 'have authority to examine issues on its own initiative and have sufficient powers to carry out investigations both into suspected serious or systemic breaches of the code and failures to comply with directions of the Board. The investigations process must be simple and credible and those who subscribe must be required to cooperate with any such investigation.' [...] 'should have the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body. The Board should have sufficient powers to require appropriate information from subscribers in order to ascertain the turnover that is attributable to a publication irrespective of any particular accounting arrangements of the publication or subscriber. The sanctions that should be available should include power to require publication of corrections, if the breaches relate to accuracy, or apologies if the breaches relate to other provisions of the code.' [...]
The problems arise with the penalties for not agreeing to be regulated and these are set out in the amendments to the Crime and Courts Bill:
'If the defendant was not a member of an approved regulator at the time [...]
the court must award costs against the defendant unless satisfied that when the claim was commenced (a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or (b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.'
Awards of exemplary damages (exemplary means punitive) will be possible against relevant publishers for 'news-related material' who decided not join an approved regulator and the measure is done by exculpatory legislative drafting: 'Exemplary damages may not be awarded against the defendant in respect of the claim if the defendant was a member of an approved regulator at the material time.'
If these measures of channeling low cost and quick arbitral resolution of media law disputes have human rights advantages, it might be argued that broadcasters are discriminated against by being excluded from the system.
If the new system proves to be claimant friendly and undermining of freedom of expression Article 10 rights, how may this come about? The 'chilling effect' on media publishers of not being prepared to defend libel, privacy and other actions may expand exponentially to the extent that surrendering and paying damages at the arbitral stage could become a default recommendation by media insurers. The arbitration system is free to claimants but paid for and funded by media defendants, thereby substantially increasing the cost burden for the print/online media in relation to primary and secondary media law. Not only could a new chilling effect ripple out into a scale of self-censorship never experienced in modern democratic Britain before, but there is also a serious risk that the media, like the motor insurance industry, may become prey to largely undefended and unquestioned whiplash injury style media harm/offence/injury claims. And under the new system of regulation this would include the imposition of remedies for mistakes in accuracy and arguments over fairness. Inquisitorial style arbitration in the past has generally been considered a potential option for resolving some media law disputes, but may not be the appropriate forum for the majority of media law disputes.
The Leveson Inquiry Report did not envisage that a new regime of press regulation would include non-print publishers such as online only businesses, but the Crime and Courts Bill amendment widens the net considerably; and only excludes the following categories: broadcasters such as the BBC and Ofcom licensees; special interest titles relating to a particular pastime, hobby, trade, business, industry or profession, and only containing news-related material on an incidental basis that is relevant to the main content of the title; scientific or academic journals; public bodies and charities; company news publications etc; book publishers and 'a person who publishes a small-scale blog.'
The cost penalties and exemplary damages will apply to the following spectrum of media law civil issues heard by arbitral regulation:
(c) breach of confidence;
(d) misuse of private information;
(e) malicious falsehood;
The last point to be made at this stage is the integrity of the terminology being used by judges, politicians, and campaigners about the true status and nature of the new regulatory regime. Much is being made about what is 'independent', 'statutory', 'voluntary', 'self-regulatory' and 'statutory underpinning' and indeed what is the constitutional status of regulation by 'Royal Charter.' Any analytical reading of the Draft Royal Charter and of the nuances and differences between 'Board of the Recognition Panel', 'Appointments Committee', 'Scheme of Recognition', 'Code Committee', 'Standards Code', 'independent self-regulatory body ... governed by an independent Board' and the legislative context of this system generates substantial argument, debate and disagreement on the issue of whether this is self-regulation, independent of government and the state, or a new and punitive form of 21st century licensing, supervision and control of press and online media content.
The government agreed an amendment to exempt small publishing businesses and 'bloggers' from the punitive incentives to participate in its Royal Charter regulation.
The government defined the excluded category as ‘micro-businesses’ - business with fewer than 10 employees and an annual turnover below £2 million.
Malicious Falsehood - a remedy for damaging falsity but not to reputation
This is an equivalent to the civil wrong known as 'False Light'- a remedy available in a fair number of United States' jurisdictions where a publication can be sued for publishing inaccurate information that is damaging but not defamatory.
The civil wrong of malicious falsehood operates on a basis that it is substantially different to libel, and some journalists would argue that freedom of expression would be improved by its criteria applying to libel.
Necessary ingredients for malicious falsehood include:
1) Burden of proof is on the claimant, not on the defendant in terms of establishing that the allegation is untrue;
2) Allegation must have been 'calculated to cause pecuniary damage'
to the claimant's 'office, profession, calling, trade or business.'
3) Allegation must have been published maliciously.
In many respects malicious falsehood mirrors the position of libel in the USA in terms of public interest claimants: it can only succeed when the claimant proves financial damage, falsity and either reckless disregard for the truth, or actuation by malice.
Useful precedents: Spring v Guardian Assurance  UKHL 7 (07 July 1994)
The key legal issue related to 'is whether one who supplies a defamatory reference about a person in response to a request from a concern with which that person is seeking employment is liable in negligence to the subject of the reference if it has been compiled without reasonable care.' Effect of the House of Lords ruling is that it would not be legally malicious to be negligent without an intention to cause harm, but it would be legally malicious to combine negligence with an intention to injure.
Kaye v Robertson from the English Court of Appeal in 1991 is probably the most famous malicious falsehood action of modern times; largely for reasons beyond malicious falsehood and being the seed for media respect for the right to privacy. The remedy allowed by the courts was the damage to the actor Gordon Kaye's commercial/professional office in it being posited by the Sunday Sport that he would have agreed to an interview with a tabloid reporter while recovering from a catastrophic brain injury in his hospital bed. Short summary of the precedent from 5RB.
Important case on status of libel parties in terms of nature of a 'public body' and striking out when High Court decides it would be more appropriate for libel action to be taken by individuals rather than corporate legal personality.
This involves a libel action taken by The University of Salford against a blogger and academic Dr. Gary Duke. Duke v The University of Salford  EWHC 196 (QB) (06 February 2013)
Mr Justice Eady:
'The argument which Dr Duke wishes to resurrect is that the decision of the House of Lords in Derbyshire County Council v Times Newspapers  AC 534 has the effect of preventing universities from suing for libel on the basis that they are to be regarded as public or governmental bodies providing higher education on behalf of central government which has delegated the task to them. This is simply not correct. Mr Rushbrooke, appearing for the University, pointed out that it is not the function of government to administer or provide higher education. He described that as an "Orwellian" prospect. Of course, it is true that universities receive large sums of public money and that they have to comply with various statutory provisions, but that is not to say that they are to be equated with central or local government.' [...]
'From time to time, it has been emphasised how important it is for the court to be wary, in cases where a corporate entity is suing for libel, to ensure that it is not being "put up" or used as a protective shield when the real gravamen of the defamatory words is to reflect upon the reputation of an individual or individuals: see e.g. Gatley on Libel and Slander (11th edn) at para 28.4, n.16; Carter-Ruck on Libel and Privacy (6th edn) at para 8.7, n.1; and Duncan & Neill on Defamation (3rd edn) at para 10.05, n.1. Considerations of this kind have a particular resonance in the present case.'
Court ruled Dr. Duke succeeded in his application for abuse of process: 'I have come to my conclusion that, in substance and reality, this is an action about allegations against individuals rather than against the University itself.'
Ruling by Mr Justice Tugendhat
'The Claimant ("Mrs Thompson") sues Carmarthenshire County Council ("the Council") and its Chief Executive ("Mr James") for a libel in a letter which he wrote on 28 July 2011, and which he published to the Councillors, and to the readers of a blog maintained by a Mr Milan under the name "madaxeman". Mr James alone has counterclaimed (under CPR r20) for libel in respect of five postings which Mrs Thompson has put on the blog she maintains, and which she first put on her blog on 28 February, 22 March, 6 April, 1 June and 14 July 2011. The words complained of in respect of 6 April have been removed, but the other words complained of have remained there. Mrs Thompson is a 50 year old housewife who looks after the youngest of her four children who is still living at home, and a smallholding in Llanwrda, Carmarthen. She became a community councillor in Llandwra in 2010, and is vice chair of the community council and chair of the Community Association. She stood unsuccessfully for the County Council in 2012, against the incumbent Mr Theophilus. The circumstances out of which this dispute arose include eight planning applications.' [...]
The judge observed 'Her blog was nominated in 2010 as a finalist in the Media Wales "Wales Blog Awards" for the Best Community Blog Award, and in 2011 for the Best Political Blog. This suggests that the blog has a significant readership. [..] Mrs Thompson's campaign of harassment and libel is the most recent of a number of cases which have recently come before the courts. Many such campaigns are not aimed at officials of public authorities, but some are. In Mrs Thompson's case the motive is revenge. [...] There is nothing new about such campaigns of vilification: they have existed throughout history where one or more persons have wished to demonise another. But the internet has made them easier for individuals to conduct. In the nineteenth century campaigns of vilification were so commonly used in election campaigns that Parliament enacted in 1895 what has now become the Representation of the People Act 1983 s.106. That section makes a person guilty of an illegal practice if, before or during an election, for the purpose of affecting the return of any candidate at the election, he makes or publishes "any false statement of fact in relation to the candidate's personal character or conduct", unless the person can show that he had reasonable grounds for believing and did believe the statement to be true.'
Mrs Thompson lost the libel action with an order against her to pay £25,000 in damages.
The Judge added in his conclusion:
'Since Mrs Thompson has attracted national publicity as a result of her arrest by the police on 8 June 2011, I draw attention to the following, all of which is explained in more detail in the judgment above (and which should be read in the light of the whole judgment, and not taken as inconsistent with any of it):
i) I have found that Mrs Thompson was engaged in an unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other Council officers;
ii) This campaign was conducted through letters and e-mails which Mrs Thompson circulated to large numbers of addressees and the media, starting in March 2006, and by her blog started in 2009, and continuing thereafter;
iii) What I have found to be the campaign of harassment does not, and I emphasise not, include the occasions in and between February and June 2011 when she was also conducting a protest against the ban on filming the Council's proceedings with her mobile phone, subject to one exception;
iv) The one exception is the occasion when on and after 13 April 2011, after she left the Council chamber, Mrs Thompson falsely accused Mr Davies of assaulting her and attempting to steal her phone;
v) Mrs Thompson has not complained to the Council that she was assaulted on 13 April 2011, nor, so far as I have been told, has she made a complaint to the police that she was wrongly arrested on 8 June 2011 (they arrested her to prevent a breach of the peace);
vi) The parties have asked that I make no ruling on whether the Council's ban on filming was lawful or not: I have not made a ruling on that, and there was not the material before me to enable me to make a ruling on that question.'
See also Thompson v James & Anor  EWHC 585 (QB) (15 March 2013)
How media lawyers engage in 'reputation management' during news gathering and researching/checking stories. A revealing on-line article by solicitor Tony Jaffa of media law specialists Foot Anstey in Hold The Front Page article. Pre-emptive strikes against regional dailies