IBI Academy
  Libel for journalists
Joss Saunders and Elaine Heywood
          15 June 2009
Agenda

   Libel: what, who, where, when, how much?
   Defences: how to deal with libel
   Related issues: malicious false...
What is libel?

   Publication
   To a third party
   Of a defamatory statement
   Which refers to the claimant
   In perm...
What is defamatory? Some examples

   Guilty of criminal offence
   Insolvency
   Dishonesty/sharp practice
   Cartels
   ...
Some tips

   Say when, not because
   Check dates, don’t imply the present when you mean
   the past
   Don’t say what a ...
Common mistakes

   But that’s not what I meant… Simon Singh and the
   British Chiropractic Association
   But I didn’t n...
Liability for publication: who

   Primary liability of author/editor/publisher
   Secondary liability: printer, distribut...
When can you be sued?

   Usual limitation period one year
   But court has discretion to extend (not often
   exercised)
...
Where is publication? Libel tourism

   Place of publication
   Is newspaper distributed here?
   Barclays Brothers sue in...
Who can sue

   Anyone with a reputation (but some surprises here)
   Not government
   But people in government can sue
 ...
Offer of amends

   s2 Defamation Act 1996 enables publishers to make
   offer of amends, admitting liability
   Court the...
How much damages?
   Usual ceiling £200,000 since Elton John
   Galloway gets £150,000 from Telegraph “being in the pay of...
Damages for fall in share price?




© Blake Lapthorn 2009
Damages for fall in share price?

   Stockbroker Collins Stewart Tullett claims £230m for
   share price drop following li...
Defences

   Limitation: when can you not be sued? See above
   Justification
   Fair Comment
   Privilege
     – absolute...
Justification

   Truth is only a defence if you can prove it
   Do you hold the primary evidence?
   Have you got signed ...
Fair comment? Is that a fact?

   Hamilton & Hamilton -v- Clifford
   Max Clifford’s defence of fair comment struck out, a...
Fair comment

1.   Words are comment (not fact)
2.   Comment is an honest expression of commentator’s
     opinion
3.   Co...
Fair comment

Bad Science Case
  Ben Goldacre’s “Bad Science” column in The
  Guardian
  Rath is a “vitamin salesman who a...
Privilege

   In Parliament
   Fair and accurate reporting of statements of
   government, the courts, and official bodies...
Qualified privilege

   Were you under a duty to publish?
   Is it a reply to an attack?
   Is it in the public interest? ...
The public interest defence

   The Reynolds -v- Sunday Times test
   Now a three stage test: Jameel -v- Wall Street
   Jo...
Reportage (fair and neutral reporting)

   Roberts -v- Gable (2007] EWCA Civ 721
   Is the information in public interest?...
Related problems

   Malicious falsehood
   Privacy
   Data Protection




© Blake Lapthorn 2009
Malicious falsehood

   False statements
   Claimant suffers financial loss
   Defendant malicious
     – eg BMJ gets sued...
Privacy – the test

   Mosley -v- News Group Newspapers Ltd (July 2008)
   The test:
     – 1. is it private information?
...
Data Protection Act 1998

   Is the information you hold about individuals (not
   limited companies) accurate, relevant a...
The Internet and Web 2.0

   When and where is the work published?
   What defences apply?
   What other issues do I need ...
Tomorrow - the world

   When and where is the work published?
   Gutnick -v- Dow Jones [2002]




© Blake Lapthorn 2009
The clock doesn’t stop

   Indefinite liability for libel - Loutchansky




© Blake Lapthorn 2009
Archives – help!

   Loutchansky -v- The Times Newspapers [2002]
   A real risk for online publishers
   need not inhibit ...
The Google effect

   News clustering and the long tail




© Blake Lapthorn 2009
Am I responsible for what others say?

   Blogs, social media and wiki
   The lack of legal control




© Blake Lapthorn 2...
What about linking?

     Hyperlinks – akin to footnotes or is there editorial
     control?




© Blake Lapthorn 2009
What can you do to limit liability?

   Take action as soon as you are put on notice that online
   material may be defama...
What can you do to limit liability (2)?

   Libel read material – especially contentious material
   If you intend to publ...
If you have questions on this or other related topics, please contact:
   joss.saunders@bllaw.co.uk
   Blake Lapthorn is a...
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Libel for journalists seminar

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Blake Lapthorn solicitors' Publishing sector group held a seminar on libel for journalists during June 2009.

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Libel for journalists seminar

  1. 1. IBI Academy Libel for journalists Joss Saunders and Elaine Heywood 15 June 2009
  2. 2. Agenda Libel: what, who, where, when, how much? Defences: how to deal with libel Related issues: malicious falsehood, privacy, data protection The Internet and Web 2.0 This presentation is on libel law in England and Wales. © Blake Lapthorn 2009
  3. 3. What is libel? Publication To a third party Of a defamatory statement Which refers to the claimant In permanent form (slander is spoken defamation) NB this talk is based on English law (but see Internet section below) © Blake Lapthorn 2009
  4. 4. What is defamatory? Some examples Guilty of criminal offence Insolvency Dishonesty/sharp practice Cartels Immorality/hypocrisy Holding claimant up for ridicule © Blake Lapthorn 2009
  5. 5. Some tips Say when, not because Check dates, don’t imply the present when you mean the past Don’t say what a person thought (only they know), but draw an inference using fair comment If this is true, then… © Blake Lapthorn 2009
  6. 6. Common mistakes But that’s not what I meant… Simon Singh and the British Chiropractic Association But I didn’t name them… But it’s true… He’s not the John Smith/ Fatima Patel I meant © Blake Lapthorn 2009
  7. 7. Liability for publication: who Primary liability of author/editor/publisher Secondary liability: printer, distributor, ISP Anyone who repeats or republishes a defamatory statement © Blake Lapthorn 2009
  8. 8. When can you be sued? Usual limitation period one year But court has discretion to extend (not often exercised) Online there is no limitation in UK Privacy limitation is longer (usually six years) © Blake Lapthorn 2009
  9. 9. Where is publication? Libel tourism Place of publication Is newspaper distributed here? Barclays Brothers sue in France where different libel rules apply But see online later in presentation © Blake Lapthorn 2009
  10. 10. Who can sue Anyone with a reputation (but some surprises here) Not government But people in government can sue Individuals, companies Not the dead ….. (though in France it can happen) © Blake Lapthorn 2009
  11. 11. Offer of amends s2 Defamation Act 1996 enables publishers to make offer of amends, admitting liability Court then gives discount against damages Judge gives 50% discount in award to Jimmy Nail, awarding £7,500 from Harper Collins book and £22,500 for News of the World article Public interest is encouraging offer of amends, damages to be “healthily discounted” © Blake Lapthorn 2009
  12. 12. How much damages? Usual ceiling £200,000 since Elton John Galloway gets £150,000 from Telegraph “being in the pay of Saddam Hussein” - January 2006 Jameel gets £30,000 and his company £10,000 from Wall Street Journal over allegations of terrorist links – decision appealed October 2006 Sir Martin Sorrell, CEO of advertising group WPP settles for £120,000 for defamatory blog - March 2007 Morrisons gets £100,000 from OFT - April 2008 Ricky Warren gets £115,000 from Random House -September 2008 Cardinal’s former spokesman gets £30,000 from Associated Newspapers over abortion allegations -January 2009 © Blake Lapthorn 2009
  13. 13. Damages for fall in share price? © Blake Lapthorn 2009
  14. 14. Damages for fall in share price? Stockbroker Collins Stewart Tullett claims £230m for share price drop following libel FT had reported allegations of insider dealing, based on document sent by ex employee to Financial Services Authority Judge said share price special damages claim was “untriable and a waste of the resources of the court” £37m damages claim for lost business but settled out of court for much less © Blake Lapthorn 2009
  15. 15. Defences Limitation: when can you not be sued? See above Justification Fair Comment Privilege – absolute privilege – qualified privilege – the Reynolds defence - reportage Secondary responsibility – s1 Defamation Act 1996 for innocent secondary publishers © Blake Lapthorn 2009
  16. 16. Justification Truth is only a defence if you can prove it Do you hold the primary evidence? Have you got signed witness statements? © Blake Lapthorn 2009
  17. 17. Fair comment? Is that a fact? Hamilton & Hamilton -v- Clifford Max Clifford’s defence of fair comment struck out, as allegation was one of fact (rape), fair comment defence not available Rule of thumb: can it be proved or not Tip: make it impossible to say true or false © Blake Lapthorn 2009
  18. 18. Fair comment 1. Words are comment (not fact) 2. Comment is an honest expression of commentator’s opinion 3. Comment is based on facts © Blake Lapthorn 2009
  19. 19. Fair comment Bad Science Case Ben Goldacre’s “Bad Science” column in The Guardian Rath is a “vitamin salesman who aggressively sells his message to AIDS victims in South Africa” Defendant doesn’t have to prove every fact on which comment is founded is true © Blake Lapthorn 2009
  20. 20. Privilege In Parliament Fair and accurate reporting of statements of government, the courts, and official bodies © Blake Lapthorn 2009
  21. 21. Qualified privilege Were you under a duty to publish? Is it a reply to an attack? Is it in the public interest? (or Reynolds defence) © Blake Lapthorn 2009
  22. 22. The public interest defence The Reynolds -v- Sunday Times test Now a three stage test: Jameel -v- Wall Street Journal [2006] 1. Is publication in the public interest? 2. Is it necessary to include the defamatory statement? 3. Is the publication responsible and fair? Always offer an opportunity to comment before publishing © Blake Lapthorn 2009
  23. 23. Reportage (fair and neutral reporting) Roberts -v- Gable (2007] EWCA Civ 721 Is the information in public interest? Is the report about the fact not the truth of statements? Protection lost if statements are adopted or fail to report a story in a fair and neutral way Standards of responsible journalism must be met © Blake Lapthorn 2009
  24. 24. Related problems Malicious falsehood Privacy Data Protection © Blake Lapthorn 2009
  25. 25. Malicious falsehood False statements Claimant suffers financial loss Defendant malicious – eg BMJ gets sued for news story about a doctor who was struck off for professional misconduct © Blake Lapthorn 2009
  26. 26. Privacy – the test Mosley -v- News Group Newspapers Ltd (July 2008) The test: – 1. is it private information? – 2. is there a reasonable expectation of privacy? – 3. does the public interest justify an invasion of privacy? (the balancing of Article 8 and Article 10)? Where does this leave publishers now? © Blake Lapthorn 2009
  27. 27. Data Protection Act 1998 Is the information you hold about individuals (not limited companies) accurate, relevant and up to date? Individual may have right of access to the information Qualified exemption for journalism: Section 32 Do you reasonably believe publication is in the public interest? PCC Code of Practice relevant, but not exhaustive Caution if data obtained unlawfully: take advice © Blake Lapthorn 2009
  28. 28. The Internet and Web 2.0 When and where is the work published? What defences apply? What other issues do I need to think about? © Blake Lapthorn 2009
  29. 29. Tomorrow - the world When and where is the work published? Gutnick -v- Dow Jones [2002] © Blake Lapthorn 2009
  30. 30. The clock doesn’t stop Indefinite liability for libel - Loutchansky © Blake Lapthorn 2009
  31. 31. Archives – help! Loutchansky -v- The Times Newspapers [2002] A real risk for online publishers need not inhibit the responsible maintenance of archives offending article did not have to be removed but appropriate warning notices should have been placed © Blake Lapthorn 2009
  32. 32. The Google effect News clustering and the long tail © Blake Lapthorn 2009
  33. 33. Am I responsible for what others say? Blogs, social media and wiki The lack of legal control © Blake Lapthorn 2009
  34. 34. What about linking? Hyperlinks – akin to footnotes or is there editorial control? © Blake Lapthorn 2009
  35. 35. What can you do to limit liability? Take action as soon as you are put on notice that online material may be defamatory (reasonable care and knowledge) Place a warning notice if a legal challenge has been made in respect of material on a website or in online archives Try to identify the defamation law to which a person may resort before publishing and try to comply with it Try to comply with the libel laws of the least defendant friendly jurisdiction, ie England, which sets a benchmark as to what is acceptable Put in place a system for dealing with complaints quickly © Blake Lapthorn 2009
  36. 36. What can you do to limit liability (2)? Libel read material – especially contentious material If you intend to publish, be forearmed with your defence Verify the accuracy of reported material, report fairly and don’t embellish or adopt allegations Publish responsibly and fairly Blogs – have a clear policy and stick to it © Blake Lapthorn 2009
  37. 37. If you have questions on this or other related topics, please contact: joss.saunders@bllaw.co.uk Blake Lapthorn is an English law firm regulated by the Solicitors Regulation Authority under SRA number 448793 whose rules can be accessed via www.sra.org.uk This presentation is protected by copyright and is not a substitute for detailed advice on specific transactions and problems and should not be taken as providing legal advice on any of the topics discussed. A full list of our partners is available on our website at http://www.bllaw.co.uk/about_us/a_to_z_of_partners.aspx or at any one of our offices http://www.bllaw.co.uk/offices. © Blake Lapthorn 2009

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