The following document concerns the legal aspects and issues, which will arise through Mr Fawcett's claim of defamation against your newspaper and Catherine Bennett.

    There is an actionable wrong of defamation, as the words were communicated to at least one person other than the claimant, through the national circulation and publication of the newspaper. The latter fact denotes the possibility that the claimant might attract larger damages due to the mass commercial nature of the your business. There is publication to the printer, when you handed the literature in question to them, and there can be no reservations that this was an intentional act. It must be forewarned that common law spreads the net of liability very wide on this issue, so not only will Catherine Bennett, the author, be treated as the publisher, but also the editor,  printer, proprietor and others who participated in the publication. It must be noted there may be many separate publications, technically every reader, upon which the claimant will sue and is particularly significant if a true innuendo is relied on. In determining whether The Guardian took reasonable care to the publication of a defamatory statement, the court will take into regard the extent of the responsibility in the decision to publish the statement, the nature and circumstances of the publication, and the previous conduct of the author, editor or publisher. Consequently, The Guardian, having received notice on the possible defamatory nature of the article, will be liable for further publications of the same article. To continue in this vein could be extremely costly to The Guardian, in terms of loss of distributors and, resultantly, the possibility of loss of readers. This has been highlighted in previous cases, where, for example, a claimant brought a criminal and civil actions against the Private Eye magazine in respect of one article, along with 37 of its distributors. Similar to this situation, the

claimant believed the magazine was carrying out a defamatory campaign against him and his reputation, with the result many distributors settled not to distribute the Private Eye again. Hence, there exists a possible serious allegation in the nature of the information, with obviously limited steps taken in verification, an absence of the claimant’s side to the story, the timing of its release (in the midst of all these royal scandals) and the inquiring tone of the article.

Possible Defences to the claim.

    Through the factual analysis above, it must have been drawn to your notice how Mr Fawcett’s claim certainly fills the criteria required for defamation, that of communication to be published, defamatory and referred to the plaintiff; on the other hand, there exists a number of possible defences. The utilisation of Article 10 of the European Convention on Human Rights is one method, and has already been referred to in previous cases which would have fallen into the liability of unintentional defamation, but that would have been incompatible with article 10. Following this, it would have been an impossible burden for the publisher to check up on every name related to the royal scandals; each could possibly sue for the current claim. Also, participators in the publication can escape liability if it is proved they were innocent of the libel contained, nothing in the work disseminated by them led them to suppose it contained libel and it was not by any negligence on their part that they did not know it contained the libel.

    If the statement has an underlying truth in the way Mr Fawcett assumes, The Guardian can plead justification. This cannot be the only plea that can be taken for, at the risk of it being unsuccessful, the jury is likely to find the conduct of the newspaper wanton and will return the verdict for higher charges. Further, if the matter of public interest is introduced, the creation of a liability for invasion of privacy could occur. To justify the “repetition” of this possible defamatory statement the newspaper must show the content was true, and make clear and explicit the meaning they seek to justify. However, if it is optimistic that the jury will accept the ‘broader’ meaning of the justification claim, and hence Mr Fawcett was not ‘bad’ in point 1, then you can try to show he was ‘bad’ in point 2, for example an indication of his character and conduct in concerns over selling Prince Charles’ unwanted gifts, to reduce the damages. So the answer “possibly not” to explain media interest in the claimant could be expressed in a wider meaning to impute a more general wrongdoing, and the words are reasonably capable of bearing this due to their extreme vagueness.

    In addition, the use of fair comment, an element of free speech, will protect honest expressions of opinion based on true facts made in good faith on matters of public interest. Although this notion of

public interest seems limited at the first instance, it has been interpreted widely, so that the defence is available for comments made on public figures, which Mr Fawcett certainly was in his close role with Prince Charles. The statement must be one based on true facts, but it is not necessary that all the facts upon which the comment is based should be assessed in the alleged libel. Consequently, the words could be used to imply certain conduct and commented on that conduct, based on the possible illegitimate dealings in unwanted gifts. Also, in deciding whether the statement is one of fact or comment, the court will confine itself to the subject matter of the publication and will not regard the wider context of the material. Thus, if the article by Catherine Bennett is considered by itself and on its own merits, without considering the surrounding literature concerning separate stories of the palace rapist, then the statement can not be defamatory in the way claimed by Mr Fawcett. You can further be assured that the defence of fair comment will not fail merely because the truth of every allegation of fact is not proved. However, this defence of fair comment may be defeated, by proving that the statement was made with malice and evil motive, according to the facts provided, this seems not so.

    Absolute Privilege is a defence, which cannot be applied to this claim, due to the nature of what it protects; parliamentary, judicial and official proceedings. Qualified privilege, radically extended over certain media publications, protects statements made without malice or indirect motive, which, again, has not been established from the factual information provided. This defence can be provided to the newspaper if it can be seen to be in the “discharge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion…affords a qualified defence…” which would mean the article is privileged. Both the author and the editor and all those who participated in the publishment had a common interest, and duty, in distributing news they felt the public would be interested in, namely all to do with the colourful lives of the Royals and associates; the same would have been done by any “right-minded men” in their position and occupation. This is a legitimate interest, which is protected by law through the freedom of expression, article 10 of the ECHR, although both this issue and that of duty is a matter for the judge. Unlike previous cases, the content in the article was “logically relevant” in the purpose

intended, an article which reflected a humorous discussion on the Royal scandals. This topic is reflected in not only this national newspaper but many others also, which rules out the idea of a

conspiracy campaign against the claimant. This publication to the world at large can rely upon the Human Rights Act 1998, which gives direct effect to the Convention by means of provision requiring

public authorities not to act in a way inconsistent with it. Thus, modern conceptions of democracy require that the role of the media in informing the public of matters of controversy be more recognised than in the past. With the application of Renyolds v. Times Newspapers Ltd, the court may be flexible to give appropriate weight to the importance of freedom of expression by the media on all matters of public concern, the significance of which was recognised by its decision.

Appropriate steps to take.

 

    If certain steps are followed, an apology, settled out of court and incorporated in a statement in open court approved by the judge, may constitute a defence in an indirect manner. This means an admittance of wrongdoing, and a suitable correction, such as compensation, should suffice. However, since defamatory words are often capable of more than one interpretation, it is open to you to make a qualified offer in relation to a specific defamatory meaning. Alternatively, you may want to go to court where either the court may dismiss the claimant’s claim “if it appears that it has no realistic prospect of success”, or direct you to provide suitable correction through compensation. It must be noted that changes in this area have arisen due to concern about the seemingly endless rise in levels of awards, thus, any possible damages will not be as heavy as previous cases. In the light of this, the greater effects of Human Rights Act 1998, the possible defences outlined above and the possibility of increasing the circulation of your newspaper by being able to write about your involvement in such a high status case, I conclude you should fight the claim, a course of action which will be extremely beneficial on the balance of the analysis.                                             1,998 words

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BIBLIOGRAPHY.

Bermingham V, Nutcases: Tort (3rd edition), 2002: Sweet & Maxwell (LONDON).

McBride N.J., and Bagshaw R., Tort Law (1st edition), 2001: Longman (LONDON).

Rogers W.V.H., Winfield & Jolowicz on Tort (16th edition), 2002: Sweet & Maxwell (LONDON).

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