Introduction
The English legal system is based on elements of the Christian Bible and its tradition. This comes with some moral concepts like lying about other persons and spreading false information. Defamation is made up of libel and slander. Whereas libel is a false and damaging comment written down, slander refers to such a statement spoken orally. The purpose of this paper is to conduct a critical analysis of the concept of defamation and how it relates to media law.
Basically, every human being has a right to a reputation. Reputation is a kind of personal right that embodies a person’s honour, credit and good name. Rights to reputation is sometimes viewed as an interest in reputation because it refers to a series of goodwill elements that has economic and other social worth. If the right to a reputation is violated in a wrongful manner, an affected person can take action in court to seek restitution of some form.
Defamation is defined as “The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him”. Defamation refers to the public presentation of information that dents the reputation of another person.
There are three fundamental elements of defamation:
It is untrue;
It affects a claimant’s reputation;
Causes or is likely to cause serious harm to the claimant’s reputation
A claimant can bring an action for defamation if a statement was made which is false and damaging to his or her reputation. This means that a statement that is true is not considered a defamation because the essence of the law is to prevent a deliberate and malicious denting of the image of another person. Hence, defamation only applies where a statement is false. If it is written in a permanent form or captured by a system that can repeat it, this action is known as libel. If it is in the form of words or gestures, it will be considered slander.
The claimant must prove there was a serious harm that occurred. This could include a reduction in the reputation of the person or hurting the individual’s feelings or emotions. In cases where a quick apology is issued after making such a statement.
Pursuing a Defamation Case
Defamation in the UK and many other countries are civil cases – in other words they are considered as tort cases and involve persons against persons. In other jurisdictions like Australia, defamation against certain persons are considered a criminal issue, so the state prosecutes a person who is involved in defamation.
Therefore, a journalist will have to be weary of lawsuits in relation to defamation. These cases are brought up by people who believe their reputation has been hurt by a false information that was damaging to their reputation. In the case of libel (written or retrievable publication that is untrue), there is no need to prove financial damage due to the statement. However, in the case of slander (which are spoken words or gestures made in passing), there is the need to prove financial damage unless the statement in question suggests a person has committed an imprisonable offence or is unfit for a profession or trade.
In McManus v Beckham Mrs Beckham was in a shop where she found pictures with autographs from her husband, David Beckham. She stated that the pictures with autographs were fake and the signatures on them are not from her husband. She went further to state that the shop in question was known for selling fake products presented as genuine. The comments of Mrs Beckham was collected and relayed by many newspapers in the UK and around the world. The shop sued for defamation.
In the court of first instance, McManus, the claimant proved that the pictures and autographs were authentic. He went on to claim that the shop had a system of ensuring that every relic they had in their shop was authentic and they took reasonable care to verify them. With that established, Mrs Beckham argued that the slander was a private affair but was relayed by newspapers. The court upheld the claim for damages because it was clear and apparent to the reasonable person that the statement of a person like Mrs. Beckham could be relayed across the media. So she had a duty of care to avoid making negligent statements that are not properly thought of.
The practice of suing for libel indicates that jurisdictions of claims for foreign defamation can be brought to the UK and tried in British courts if only the articles were translated to English and circulated in the UK. This means that defamation claims transcend national jurisdictions. And in this period of globalisation, the boundaries are fast disappearing and there are many new and innovative systems and processes which are put together in claims.
The claim and damages could be reduced in proportion to the promptness of withdrawing a libellous claim and/or apologising for it. Although in most cases in the past, it was alright to present an apology without any claims. However, in the Bowman V MGN case, it was established that when an article is quickly withdrawn and an apology is rendered, there is still some kind of demand that could be made in a claim. This could include various reductions on the basis of the people who heard or saw it in the first place as well as damages for the brief period for which a defamatory claim or story was presented on an electronic outlet.
Applicable Laws in Journalism
In cases of published materials, the claimant will have to prove that the relevant material is defamatory as per the rules of defamation. This means that the claimant must identify that the published material is false, and affects the claimant’s reputation. This means that the claimant will have to be identified in person and this must be apparent to the reasonable person as appropriate.
The material in question should be published by the accused party (defendant) and/or his agent. This is because the suing process must be specific. And the defendant must be identifiable and it must be reasonable to trace the false and defaming statement to the accused party.
In most cases, the defaming statement would be words. And these words must be presented as a basis for the proceeding. The words form the basis for the claim for defamation. This include the specific statement and identification of issues and problems that are necessary and applicable to the situation. However, in other situations, a gesture or image could be presented as evidence for a given form of defamation. A notable example is something like a Nazi salute or gesture that has a popular meaning that the reasonable person might identify to be destructive to a specific person or a specific group of people.
Aside the facts of an event, there are several laws relating to mass media and broadcasting that can be applied and utilised in these cases of defamation. Section 166 of the Broadcasting Act, 1990 shows that information that is defamatory issued in a broadcasting programme could be considered permanent information for the purposes of defamatory claims. The permanent information is considered libellous and this makes publication something to be monitored and controlled. This confirms Section 4(1) of Theatres Act, 1968 which also defines what permanent form of libel exists. These two acts sought to modernise and formalise the laws relating to the publication of libellous information.
The Defamation Act, 2013 streamlines defamation and makes it relevant to the 21st Century and our own time. This include the requirement that a person presenting a claim for defamation must show proof of actual and serious harm. The Defamation Act also formalizes the UK as a place for making foreign defamation claims. However, in the advent of the European Union and the growth in civil liberties, the Defamation Act draws the line between the right to freedom of speech/expression and the right to reputation. This includes the expansion to cover information that is in public interest which are not seen to be defamatory. It also provides information about how to deal with defamation online (section 5).
Defences
The first defence for defamation claims is consent. Consent refers to the ability to provide proof that the claimant provided an approval or authorisation for the defamation. This could be express or implied. Express consent is to be presented with evidence – either by a witness or in writing. It could be implied where the conduct of the claimant meant that in some time in the past, s/he failed to actively prevent the form of defamation that is being sued at the moment.
Another form of defence for defamation is truth. This was known as justification in the past. This refers to a situation where the situation in question is actually true. This means that there is no reduction in the dignity or reputation of the claimant. Therefore, the claim for defamation is not grounded as there is no destruction in the reputation of a person. The right to reputation cannot be granted by the courts where there is no reputation to protect.
There is a defence of honest opinion which refers to a statement that could be implied or inferred to be an honest view on the matter. This is about the presentation of a view that might be critical, but provides an honest or fair comment. This process provides for the protection of critics and other people who stay within a logical framework of analysis and review of information.
There is also the defence of privilege which refers to some kind of protection from action in a case where there is protection in certain situations and contexts. This includes absolute privilege which covers comments made in Parliament. Qualified privilege refers to some kind of privilege but with limited implications and elements or features.
There is a defence of innocent dissemination which refers to a situation where a person unknowingly made by a person who passes on information that was false. This could refer to the parameters of the McManus V Beckham case where press houses published a false accusation made by Victoria Beckham without knowing that it was false. This is known as mechanical defamation.
Also, responsible publication on a matter of public interest is generally accepted as a defence. This defence is from the case of Reynolds v Times Newspapers Ltd where the House of Lords held that a person who published a defamatory information that was in public interest could be excused from prosecution.
Remedies
Defamation claims are under the law of tort. Therefore, the remedy that is given is usually damages and an injunction. The damages are compensatory and could include general and special damages meant to restore a person and cover the losses incurred. There could be nominal damages that are given when the loss of reputation is not serious. However, the damages could be substantial.
Also, in the process of taking action for defamation, a person might seek an injunction. This could either be interim where there is a freeze on publication until certain things are met like the final judgment is made. Or a permanent injunction where there is substantial evidence that a person’s reputation is strongly linked to the facts of a given publication.
Conclusion
Defamation is a statement or gesture which has a negative impact on the reputation of a given person. Defamation is an untrue statement which harms the reputation of person. If it is an oral statement, it is construed as a slander but if it is written or stored in a retrievable form, it is considered a libel. Defamation could lead to the presentation of action by the aggrieved person and this could lead to remedies like injunction or damages.
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