Media Law - Defamation and Libel

Defamation is something that can be caused by journalists through words used to describe a person, company or organisation. Defamatory statements are known 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; or
• Disparage the person in his/business, trade, office, or profession.

From a journalist’s point of view, if what you write or broadcast about someone, a company or an organisation lowers them in the estimation of right-thinking people then you have defamed someone and they are within their rights to sue you.

Reputation is precious, especially if you are in the public eye, have money or both.

An inference is a statement with a secondary meaning which can be understood by someone without special knowledge, who ‘reads between the lines in the light of his general knowledge and experience of worldly affairs’.

Within defamation cases, the burden of proof lies with the claimant. The claimant has to prove:

• The publication is defamatory;
• It may be reasonably understood to refer to him/her, i.e. identification;
• It has been published to a third person.

The claimant does not have to prove that the statement is false; if a statement is defamatory, it is assumed that the statement is false. If the statement is true and the journalist can prove that it is true, there is a defence.

Identification:

The claimant needs to prove that the published matter identifies him/her as the person defamed.

The test in defamation law of whether the published matter identified the person suing is whether it would reasonably lead people acquainted with him/her to believe that they were the person referred to.

Publication:

The claimant must also prove that the statement has been published. The matter must have been communicated to a third person in order for there to be publication.

Defences:

The main defences to do with Defamation are;

• Justification
• Fair Comment
• Absolute Privilege
• Qualified Privilege

Justification:

In defamation law, the burden of proof is not on the claimant to prove that the statement is true, it is the responsibility of the defendant to prove the truth of the statement. ‘The matter must be proved true ‘on the balance of probabilities’.’

Fair Comment:

The defence of fair comment protects published opinions. The requirements are:

• The published comment must be the honestly held opinion of the person making it;
• The comment should be recognisable as opinion;
• The comment must be based on provably true facts/privileged matter;
• Those facts/that matter must be recognisably alluded to or stated in what is published with the comment, unless so widely known that this is not necessary;
• The subject commented on must be a matter of public interest.

All these requirements must be met in order for the defence to succeed.

Privilege occurs when the public interest demands that there is complete freedom of speech without any risks of proceedings for defamation, even if the statements are defamatory or untrue.

Absolute Privilege is a complete answer and bar to any action for defamation.

Qualified Privilege is available as a defence where it is considered important that the facts should be freely known in the public interest.

No defences are available:

• When you have not checked your facts;
• When you have not ‘referred up;
• When you have not put yourself in the shoes of the person or company you write about;
• Got carried away by an intriguing story; or
• Have not bothered to wait for a lawyer’s opinion.