'What defences does the law provide for journalists facing defamation cases?'

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Juliet Perry         Law and Ethics        02/04/03

‘What defences does the law provide for journalists facing defamation cases?’

The law of defamation exists to protect both the moral and professional reputation of the individual from unjustified attacks. The law tries to strike a balance between freedom of speech and a free press with the protection of an individual’s reputation.

        

Should journalists face defamation cases there are defences available. Justification is one of these defences, to use this defence the journalist must prove that what they have written is substantially true. Before the defamation act of 1952 was passed, to succeed with a defence of justification you had to prove the exact truth of every defamatory statement made in the article in question. But now under section 5 of the act, the law states that the defence will not fail merely because the article contains some minor inaccuracies.   However difficulties still arise as it is not the task of the claimant to show the article is untrue, but the task of the defendant ie. The journalist to prove the words written are true. The name ‘justification’ is misleading because the defendant does not need to show he had a moral or social reason for publishing the words, the fact they are true is satisfactory. The journalist has to prove the article in question is ‘on balance of probabilities’ which is a lower requirement than ‘beyond reasonable doubt’. An example of this is the 1994 case between television actress, Gillian Taylforth and the Sun. The Sun used the defence of justification successfully after they published a front page splash entitled ‘TV Kathy’s sex romp’. The article stated Gillian and her boyfriend were having sex in a parked car. The Sun used the police press office for confirmation that Gillians boyfriend had been cautioned for indecency. The police officer used as a witness claimed he had seen the couple. This example also demonstrates another point that journalists should be aware of, to ensure their witnesses are prepared to give evidence. It is often the case that their account of events stands for more than the defendants ie. the journalist.  

A plea of justification can also be difficult when reporting on investigations. It is obviously defamatory to report that somebody is guilty of an offence, or to report an accusation made by a third party. The only way a journalist can defend themselves is to prove the person committed the offence (exception to this are reporting a court case, a police statement, or the report is covered by privilege). If the journalist has reported that a person is suspected of being guilty then they need to prove there are ‘reasonable grounds’ for suspicion. An example of this is the Elaine Chase v News Group Newspapers Ltd [2002] EWCA case. The Sun Newspaper tried to show there were reasonable grounds for suspicion after publishing a story headlined ‘Nurse is probed over 18 deaths’. The police had been investigating the fact that a number of terminally ill children treated by one particular nurse had died. The police concluded there were no grounds to suspect the nurse but this was after The Sun had published their report. They paid £100,000 damages.

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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 ...

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