Media Law lecture -- Jan. 31: Libel Law, cont'd

• Who can sue?

  • Individuals

    • Not the dead

      • However, complaint can be brought via PCC or Ofcom.
    • Groups of individuals

    • Who is reasonably identifiable?

      • Holton v. Jones 1910

        • Test is whether an allegation could reasonably lead to a person being identified
      • Group of non-English cricketers in 1995 sued Cricket Wisdom for saying “non-England born” players were less dedicated to the team.
    • O-Shay v. Mirror Group — Claimant claimed a risque call phoneline photo resembled her; case dismissed as being unreasonable (It would be impossible for newspapers to verify that nobody other than the subject looks like somebody in a photo
    • The “Tapas 7” weren’t referred to directly but sued due to false allegations.
    • Calling a group a “criminal family” a bad idea — even if there are a few who have records, everyone in that family could sue.

  • Companies

    • General damage: damages for loss of reputation

      • Ordinarily should not be substantial.

    • Special damages: damages that can be proven

      • If, say, a report comes out arguing a drug is dangerous, a company can sue for lost revenue.

      • Colins Stewart Tullett PLC v. Financial Times (2004)

        • Broking company criticized by FT. Company claimed for loss of their shares, £37m worth. Claim rejected; the loss of a share price is unforeseeable.

  • Not public authorities / political parties

    • Darbyshire County Council v. Times Newspapers (1993)

      • Public bodies should be open to uninhibited criticism.

    • Goldsmith v. Bhoyrul (1998)

      • Goldsmith could sue, but not the political party he was a member of.

• Who can be sued?

  • Publisher, journalist, editor

• What is the meaning of the report?

  • Express meanings:

    • What is the natural and ordinary meaning?

      • What is the meaning conveyed to an ordinary, reasonable viewer?

        • Can read between the lines but is not avid for scandal.

      • Charleston v. News Group (1995)

        • Report about pornographic computer game in which soap stars faces are pasted on top of porn star bodies. House of Lords came down on side of newspaper; claimants had to look at the article as a whole. Reading the headline and text would argue the soap stars were in no way affiliated with the game.
    • Look at the report as a whole

    • Tone of report/qualifications

      • Taking a middle line is important;

    • Stance of a report

      • Lewis v. Daily Telegraph (1964)

        • Report in Telegraph said that fraud squad were looking into affairs of company after criticism of the chairman’s statement

          • House of Lords came down on side of Daily Telegraph
          • Publication must be taken as a whole; suspicion of guilty is not proof of guilt.
          • Precise, clear account of the facts.

  • Implied meanings

    • Wallpaper

      • Don’t show a photo of a random officer if there’s a report of corruption; ONLY show the officer accused of corruption.

    • Innuendo

      • Private Eye-ese

        • “Tired and emotional” = drunk; “Ugandan discussions” = an affair; “Smoking an exotic charout” = pot use; “close friends”

• Libel and the Internet

  • Godfrey v. Demon Internet

    • A claimant can sue the publisher of a website, but not the ISP, unless it’s kept online?

  • Gutnick v. Wall St. Journal

    • You can be sued anywhere in the world — any jurisdiction it could be downloaded.

  • Chat boards

    • If not responsible for what’s being published, then should not be held responsible for what’s on the chat. (Innocent dissemination)
    • Chat boards at the end of controversial articles not a good idea.

  • Libel tourism

    • Forthcoming defamation act will decide whether somebody without much reputation here would be able to sue for libel
  • Substantial publication

• The defences

  • Justification

    • Burden of proof is on the broadcaster/publisher
    • How are you going to prove the truth?
    • What is the evidence you can rely on?

    • Assessing the evidence

      • If an individual has been paid, it’s less easy to rely on their defence.
      • Is the individual motivated by malice?
      • Source with a criminal record is less likely to be believed.

      • Is the individual within the jurisdiction, will they be able to testify?

        • If outside the UK you can’t make them testify.
      • Are there other sources or documents you can rely on?
      • Just because someone says something to you doesn’t necessarily make it the basis for a report
      • A note made contemporaneously is stronger than one made after the interview.

  • Fair comment

    • An opinion
    • Based on true facts

IMPORTANT: Look up Reynolds defence