Media Law - Defences

There are a few defences available to journalists – of which a couple will need to rely on another defence in order to be effective.

The defence of Fair Comment protects published opinion. However, if a media organisation is using this as their defence, it will need to be prepared to rely on another defence. This could be justification, qualified privilege or absolute privilege.

The requirements of this defence are as follows:

• 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/privilege matter.
• The subject commented on must be a matter of public interest.

The defence of justification will be effective if the words complained of were true. This defence can be misleading because there is no requirement that the words were published justly or with good reason.

Malice is being dishonest or improper but knowingly. You must have motive to be dishonest, this is therefore known as malice. Proof of malice can be used by a claimant in a libel action to deprive the defendant of the defences, fair comment or qualified privilege.

Privilege is being exempt from the law. Absolute privilege is available to judges in court. They are able to state their opinion regardless of how offensive it is, within the courtroom, and the defence is available to them. Qualified privilege is available as a defence to journalists where it is considered important that facts should be freely known in the public interest. Journalists are allowed to publish statements from within court – as long as they are published immediately – without the risk of being sued.

An example of both absolute and qualified privilege occurred in a recent case with Amanda Knox. During the trial it was stated that Amanda Knox was a ‘she-devil’. Absolute privilege was apparent here due to the statement being delivered by someone in the judiciary. Qualified privilege was available to those journalists who printed this within their report.

This can be seen in the Guardian’s report on this story.

http://www.guardian.co.uk/world/2009/dec/04/two-faces-of-amanda-knox

Absolute privilege will never be available to journalists. However if a report is free from error and it is published immediately then the qualified privilege offers a similar degree of protection.

Another defence, which is crucial to cases of defamation or libel is the Reynold's Defence.

This is a ten point test which protects a publication of defamatory material provided that it was a matter of public interest and that it was the product of ‘responsible journalism’.

Lord Nicholls established the 10 points:

1. Seriousness of the allegation – if the consequences are bad, the allegation is bad.
2. The nature of the information – is it in the public interest?
3. Source of the information – the source needs to be 100% reliable.
4. What were the steps taken to verify the information?
5. What is the status of the information?
6. Urgency of the matter.
7. Whether comment was sought by the claimant.
8. Whether the report contains the claimant’s side of the story.
9. The tone of the article.
10. The circumstances of the publication.

If a journalist has all of these 10 points as well as the public interest the defence of qualified privilege will be granted for them.