Section 6, defamation act 1952 gives journalists the defence of fair comment. As the name suggests this defence is based on comment so a journalist could not use it to defend defamatory facts made on a person. Therefore the facts the journalist is basing the comment on must be true and stated clearly. For example to say ‘her behaviour was disgraceful’ is defamatory, but if that comment is fair and based on the persons actions, which are outlined in the offending article, a plea of fair comment is likely to be considered. Unlike Justification the law does not require the truth of the comment to be proved, this would be impossible. All the law does require is that the comment is made honestly and without malice. Malice has different meanings depending on what it is referring to but in this context malice means; the comment was made dishonestly and the defendant does not really think what they have written, it was a pretence.
Parliamentary or judicial proceedings are usually absolutely privileged events. This means any statements made on these occasions cannot be subject to defamation action. This privilege comes from article 9 of the human rights bill 1689 and means that journalists have the right to report on anything, defamatory or otherwise if absolute privilege is attached to the event in which it occurred ie. Judicial proceedings. For example if a MP were to say something defamatory about the Prime Minister in the House of Commons during parliamentary proceedings he could do so without fear of defamation action. But journalists will not be able to use absolute privilege as a defence when publishing parliamentary proceedings, although qualified privilege may be available. Journalists do however have absolute privilege in judicial proceedings but under section 14 of the defamation act 1996 absolute privilege can only be used as a defence if the report is fair, accurate and published contemporaneously. There are many mistakes journalists can make which will forfeit their defence of absolute privilege, eg. Wrongly reporting what was said in court. Monthly magazines and even weekly newspapers sometimes have difficulty with contemporaneous reports as they often carry stories over, again this can forfeit their defence of absolute privilege.
Qualified privilege offers the journalist a defence which enables them to publish matters which are thought to be in the public interest. Therefore qualified privilege will not protect an article published which is not for the benefit of the public. Like absolute privilege the report must be fair and accurate but it differs because it must be published without malice. Malice in this context means the article is written maliciously, with bad feeling towards the person. There are a number of occasions when the press want to leak a story on a persons conduct but they will be prevented because they fear defamation action being brought against them. If the information is issued by: a legislature in any member state or the European parliament; The government of any member state, or any authority performing governmental functions in any member state or part of a member state or the European Commission; an international organisation or international conference. The information is privileged leaving the journalist to report on the matter safe in the knowledge that no legal action will be brought upon them.
A prime example of a case involving qualified privilege is the Renyolds v Times Newspaper Ltd [1998] 3 All ER 961. The case was centred around the resignation of Mr Reynolds, Prime Minister of Ireland and leader of the Fianna Fail party. He resigned because of his personal identification with the Northern Ireland peace process as Mr Reynolds was the chief architect in that process. His resignation was announced on 17th November 1994 in Dail, the Houses of Representatives of the Irish Parliament. The Sunday Times published an article, headlined ‘goodbye gobmen’. Mr Reynolds said that this article defamed him and made him out to of deliberately and dishonestly misled his coalition and cabinet colleagues. The jury decided that Mr Reynolds allegation of defamation was untrue and that the two journalists were not acting maliciously when they wrote the article. The jury said if the occasion was privileged then a defence of qualified privilege would succeed. The judge said that the article was not privileged but because Mr Reynolds’ defence of justification failed the judge substituted an award of a penny. Mr Reynolds appealed but The Lord Chief Justice, Lord Bingham, in the court of appeal said:
‘As it is the task of the news media to inform the public and engage in public discussion and matters of public interest, so is that to be recognised as its duty.’ (McNae, 2003, page 272)
It is often the case that the papers publish corrections and apologies, in this instance a journalist can make the plea of accord and satisfaction. This simply means that the matter has been disposed of and the apology/correction has been accepted by the claimant. The complaint will usually be made to the editor. In this instance the journalist should be careful not to do anything to prejudice the outcome of any legal action that may be taken. Therefore all letters and conversations should be written ‘without prejudice.’ This should be included at the top of letters and mentioned in telephone conversations. This means that everything written/said is legally off the record and cannot be used as evidence if legal proceedings should follow.
It is important that the correction and apology published are accepted by the claimant otherwise the defendant will not succeed with a plea of accord and satisfaction. Making an apology and correction not accepted by the claimant could make matters a lot worse and damage their reputation further. If the jury do find for the claimant the fact that the newspaper took action to correct the original statement should reduce the amount of money in damages awarded to the claimant. Another option is payment into court. This means the newspaper will lodge a sum of money into the court and the claimant can accept this money at any time, when they do so litigation will end. If they do not accept the money legal proceedings will continue.
The last but probably most simple defence is offer of amends, section 2 of defamation act 1996. This can only be used if the journalist has defamed somebody unintentionally. A good example of how unintentional defamation can occur is the case between Newstead v London Express Newspapers Ltd. [1940] 1 KB 377 The Daily Express reported that ‘Harold Newstead, 30-year-old Camberwell man’ had been found guilty of bigamy and sent to prison for nine months. Another Harold Newstead successfully sued the paper as he also worked in Camberwell and claimed that the article had been referred to him. In a case such as this the defendant must make a written offer to make an apology and to publish a correction in a reasonable manner. For example the correction cannot be published in small print at the back of the paper. The defendant must also pay damages.
In conclusion, it is usually clear what is and what isn’t defamatory but in cases where the journalist slips up there are defences available. This mean that journalists get away with a lot more than they would without the defences. They are less concerned about pushing boundaries and publishing articles which may defame people. Just by looking through the daily paper and celebrity magazines one can see a huge amount of defamatory material. Celebrities are more of a threat to journalists than those of modest means eg. A journalist may not hesitate in defaming a person on income support as there is little they could do with their limited funds. Newspapers often have to consider whether they can afford not to publish a story, a scoop on a celebrity may sell millions of papers so they stand to make money even if they are taken to court and have to pay damages. Sometimes the story is worth facing a defamation case.
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Bibliography
McNae, Essential Law for Journalists, 2003, 17th edition
Peter Carey, Media Law, 1999, 2nd edition
Tom Crone, Law and the Media, 1998, 3rd edition
www.parliament.the-stationery-office.co.uk