This is the second of two chapters on the main legal danger to journalists: defamation. In the last chapter we looked at what defamation is and what most defamation laws say you must not do. In this chapter we consider the various defences which you might be able to use if you are sued for defamation; and we see how defamation is punished.
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Defences against defamation
If you have worked through the previous Chapter 69: Defamation - what you cannot do, it may seem that the laws of defamation are heavily against the journalist. You might be wondering at this moment just what you can say legally which is critical of a person or group. Don't worry. There are several defences which you can use to keep out of court or, if you are taken to court, to keep you from losing the case.
We will discuss these defences now, not so that you can prepare for court, but so that you can understand under what circumstances you can say something critical of someone and not be taken to court.
Truth
Truth (which is also called justification) is probably the most common reason why journalists can get away with writing bad things about people. This is the defence that the words complained about are true.
In many countries with either common law or defamation acts, if you can show that the words were true, you do not need any other defence. However, in some other countries, truth is only a defence when used with another defence, such as public interest (see below). You must find out how the defence of justification or truth works in your country.
If you claim that your words were true, your defence will not fail just because there are some errors elsewhere in the story. However, the specific words complained about must be accurate for the defence of justification.
The problem for journalists often comes in trying to prove the truth of things they write. Witnesses may die or be unwilling to appear in court in your defence, especially if they gave you the information in confidence, off the record. Also, if a case takes a long time to come to court, memories will not be reliable.
The danger in trying to use the defence of justification is that, if you are not successful, the judge or jury may decide that you have made matters worse by not admitting your mistake straight away. The longer you support a defamatory statement, the worse will be the punishment if it is found to be untrue.
Convictions
If someone has been convicted or cleared by a court of law, that is accepted as proof of his guilt or innocence on that particular charge or charges. For example, if you state that "Elias Olman is a thief", you will probably be safe if Olman has been convicted of more than one case of theft. However, one conviction does not necessarily make a man a thief. In the case of one offence, it is safer to be specific and say: "Elias Olman was convicted of theft in 1999".
A word of warning here: some countries have laws which say that the media cannot mention a person's convictions after a certain number of years have passed following sentencing. The convictions are then said to be spent. The length of time before a person's convictions are spent usually depends on the seriousness of the crime. A shoplifting conviction might be spent after two years, a robbery conviction might not be spent for many years. Convictions for murder or treason may never be spent. You should check whether your country has such laws and what limits they put on publishing a person's previous convictions.
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Fair comment
In countries where there is freedom of speech and expression, it is accepted that people have the right to make fair comments about things. Journalists often rely on the defence of fair comment.
In this case, you do not need to prove the truth of your comment. In some cases this is not possible, especially if it is an opinion rather than a fact. You only need to convince the judge or jury that your comments were your honestly-held opinion, and that this opinion was a reasonable one, based on the facts available to you.
Your words might be harsh or exaggerated, but you only have to satisfy the judge or jury that it was a comment that a fair-minded man or woman might have made on the same facts.
The defence of fair comment is most often used by people analysing some issue or event. This can range from political or economic analysis to reviews of plays, films, books or music.
The comment does not have to be a provable fact, but it must be based on provable facts. For example, a restaurant reviewer might describe the service as "poor" - a word which means different things to different people. It is an opinion, not a fact, so the reviewer cannot use the defence of truth for this comment. However, if the reviewer also wrote that the waiters took half-an-hour to take the order then another hour to fetch the meal, which was the wrong order anyway, these are provable facts. From these facts, any reasonable person would also describe the service as "poor".
Public interest
In some countries, the defence of fair comment (and sometimes the defence of truth) is often tied to one condition - that the topic you are writing about is a matter of public interest. This means that the subject is one in which the public has a reasonable interest - in other words, a right to know.
This right to know includes matters which are in the public arena, but it does not cover matters which are the purely private concerns of an individual. For example, you can comment on the way a politician was elected, how he does his job or how he treats his staff. But the courts have ruled that the way he treats his wife in the privacy of their home is not in the public arena. (You can, of course, report that he beats his wife, but you must use another defence, such as truth, against any possible action for defamation.)
A word of warning: in some countries, the law states that fair comment can be used as a defence only on "matters in the public interest". This means that the public must also benefit from knowing your comment. This is very difficult to prove and therefore very limiting to journalists. You should check the exact wording of your country's defamation laws.
Malice
To use the defence of fair comment, you must show that publication was made "in good faith, without ill-will".
This idea of ill-will is usually referred to in law as malice, and includes any dishonest or improper motive. For example, if you publish a critical comment to get revenge on someone you dislike, that might be seen as malice. If the court decides that you acted with malice, you will lose your defence.
Letters to the editor
Many people express their personal opinions on public issues in letters to the editor columns. The same rules apply to comments from readers as to any news story, feature article, comment column or review.
In letters to the editor, the newspaper is often at the mercy of the letter writers, as there is no way of telling whether or not their comments are made with malice. If you have the slightest reason to suspect malice, it is best not to use the letter at all, or to remove the dangerous phrases.
It was a letter to the editor which resulted in one of the few successful claims for defamation in a Papua New Guinea court in the early years of independence.
A boutique owner was awarded $6,000 damages after a paper published a letter making reference to her shop. It read:
I walked into the shop one day last week and the most odious, revolting creature greeted me, but it was with sarcastic criticism from behind the counter. When I realised I was trying to be fed, I realised that the creature was the owner itself.
This was a clear case of defamation. Although the paper did publish a brief apology three weeks later, the judge said it should have published a full apology immediately if it had wanted to make the damages less. As it was, the paper was fortunate that the boutique owner did not ask for more damages, as these could have been very large. It is interesting to note that the letter was published by a junior reporter who was left in charge while both the editor and editor-in-chief were absent.
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Privilege
The law recognises that there are times when there has to be complete freedom of speech without any risk of claims for defamation. The two main examples are in parliaments and courts.
For example, courts could not operate if witnesses were afraid of giving evidence in case they were sued for defamation. They must be allowed to speak absolutely freely. This protection from the law is called privilege.
Although English common law does not protect freedom of speech in other situations, many countries have made their own laws to extend the protection of privilege. In some countries, privilege also covers such events as public meetings, local councils, tribunals, commissions of inquiry, even official documents kept as public records, such as land titles.
The importance of privilege to journalists is that you too are protected in what you write about such meetings, as long as your report is fair and accurate. Some defamation laws also say that your report must be published contemporaneously, which means "as soon as possible after the event".
Your report does not have to be a record of every word spoken in the meeting or in court. Your story can be a summary of what went on or what was said. Neither will you lose the defence of privilege if there are some minor errors, although the main parts (including any quotes) must be accurate.
Defamation laws usually judge fairness and accuracy from the viewpoint of your ordinary readers or listeners. One way of looking at fairness and accuracy is to ask: "Am I being fair and accurate to my audience?" If a court decides that you are not, you will lose the defence of privilege. (For more details, see Chapter 67: Privilege.)
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Unintentional defamation
It is possible to defame someone without knowing that you are doing it. Although journalists are supposed to check their facts and know their subjects well, they cannot know everything. Even if you have researched your story properly, checked all the facts and taken care with the writing, you may still defame someone without knowing or intending it.
In such a situation, you might be able to use the defence of unintentional defamation (sometimes called innocent publication).
The most common use of this defence is when you publish some quite innocent words which take on a different, defamatory meaning because of special circumstances which you were not aware of at the time of writing.
For example, in a story about film star Mr X, you might mention that he is married. At the same time, photographs of Mr X are published showing Mr X "with his girlfriend Miss Y". Without you knowing it, Mr X had just got a divorce. Mr X claims that your story makes people think he is committing adultery with Miss Y, when in fact he is free to date anyone after his divorce. You might be able to use the defence of unintentional defamation if you can prove that you took every reasonable precaution to make sure your story was accurate.
It is also possible to defame someone you did not know exists. The classic English case was that of Artemus Jones. A journalist wrote an article about a factual event but invented a character he called "Artemus Jones", to add human interest. The journalist probably chose that name because it was so unusual. Unfortunately, there was someone with this name in real life, a London lawyer, and he sued the paper for a lot of money claiming that his friends had made fun of him believing that the article had been about him.
There is always this danger, so a journalist should always be extra careful in inventing fictional names or pseudonyms for people who do not want their real name used. Remember, there are hundreds of thousands of people in the world called John Smith or Hussein Mohammed.
To use the defence of unintentional defamation, you must also try to correct your mistake immediately by:
offering to publish a suitable correction and apology and
taking action to tell people to whom copies of your story have been distributed that the words are alleged to be defamatory. This usually means telling newsagents to stop selling that issue of your newspaper or magazine.
Because publishing a correction and apology is admitting that you did defame the person concerned, you must always get advice from your organisation's lawyer before doing it.
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The plaintiff agreed to publication
You cannot defame someone if they have given their consent for you to publish the defamatory material. Consent usually means that they said: "Yes, you can publish those words." This law stops people tricking journalists into publishing defamatory material so they can later sue.
However, you may also have a defence if, having been told exactly what was to be published, the plaintiff made a statement explaining his side, and that statement was included in your report. A court might accept this as agreeing to publication. A reply such as "No comment" certainly would not be seen as giving consent.
The matter has already been judged
It is a principle of common law that courts will not hear a second case based on the same complaint against the same defendant. If you have been cleared already, the plaintiff cannot have a second try using the same imputation. However, if you repeat the words again in issues or broadcasts after court proceedings have started, this would be a separate publication and could result in another action.
The plaintiff has died
As we mentioned in Chapter 69, an action for defamation is a personal action. Just as there can be no defamation of the dead, so an action begun by a plaintiff cannot be continued by his children or family if he dies before the case comes to court. The action dies with him.
However, remember that you can defame a person by publishing defamatory matter about a member of his family, whether living or dead.
There are a few jurisdictions in which it is defamatory to "blacken the memory of one who is dead", but these are relatively rare and usually apply to defaming a dead ruler. Check the law in your country or state.
In more than a dozen European countries there are laws against denying the Holocaust (the mass murder of millions of Jews by the Nazis and their allies in World War II). While many of these laws refer to "defaming the dead", Holocaust denial legislation is often more similar to the laws against vilification of members of a racial or religious group than defamation. You can find out more on vilification, especially in the Australian context, here.
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The statute of limitations has expired
Many countries have a law which sets a limit on how long a person can delay before starting legal action for defamation. This is called a Statute of Limitations on Defamation. It is normally set as a number of years from the date of last publication of the material.
If a case for defamation is not started before the end of this period, then it cannot be brought at all. However, the full case does not have to be heard within that period. Most laws require only that the first complaint is taken to a court in that time.
For example, if the Statute of Limitations on Defamation for your country is five years, the plaintiff has to start court action within five years of publication. The court may take longer than five years to hear the case in full.
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A correction and apology have been made
This is not, strictly speaking, a defence. In fact, publication of an apology is an admission that a mistake has been made and that it was defamatory. However, if a judge or jury later finds that the matter was defamatory, the fact that your organisation quickly apologised and corrected the mistake will count in your favour.
Extreme care should be taken in writing a correction and apology. It is possible, when correcting one defamatory statement, to make another. For example, to say that allegations contained in a speech by Mr Alfa about Mr Beta were untrue could be calling Mr Alfa a liar. Get a lawyer to draft the correction, or at least to look at what you write.
Never try to get out of your own error without referring it to your editor. You may have been approached directly by the person making a complaint and try to hide the matter. Or you may try to write what you think is a correction (without an apology) in a follow-up story.
Such actions are highly dangerous. They will only make the situation worse and annoy the person concerned. If there is a complaint, you must immediately tell your editor so that he or she can deal with the matter.
In fact, you must be very careful about everything you say to someone who complains that a story about them (or their client) was defamatory. You must not say anything to them which will make it difficult for your lawyers to defend you later. Even a simple sentence on the telephone such as "Yes, I think we made a mistake" could destroy your defence in court. It is better to say only that you will "investigate their complaint".
In any conversation with (or letter to) a complainant, you should make it clear that what you say or write is "without prejudice"; that means without pre-judging the outcome of any legal action.
Serious harm
For many years, all a plaintiff had to prove was that the imputation against them had harmed their reputation, injured their livelihood or ridiculed them. More recently, however, various legal jurisdictions have inserted a requirement that the plaintiff must demonstrate it was “serious harm”. UK courts have been using this provision since 2013, while in Australia courts in New South Wales and Victoria since 1 July 2021 have required the plaintiff’s case to pass the “serious harm” test. This was demonstrated in respect to a defamation on social media when an Australian minister Peter Dutton was awarded relatively small damages for a Tweet accusing him of being a “rape apologist”. While the judge acknowledged the words were defamatory, he also said they were not read by many people and could have been dealt with in a lower court. Commentators said that if the case had been brought after 1 July 2021 when the “serious harm” provision became effective, Dutton might not have won at all.
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How is defamation punished?
Defamation is usually a civil offence, although it can be a criminal matter under special circumstances.
Civil defamation
Most complaints of defamation are dealt with under civil law. That means that cases go to a civil court and are punished by awarding money (called damages) against the person found to have committed the offence, usually called the defendant. If someone takes you to court for defamation, they will be the plaintiff, you will be the defendant.
In civil defamation, the principle is the same as for someone who has been physically injured as a result of someone else's actions, either through carelessness or a planned attack. The injured person may take the other person (or people) to court. If successful, the injured person will be awarded a sum of money as compensation. This money will be paid by the person who did the damage.
The judge or jury will decide how much harm has been done and express that in the amount of damages they award.
Assessing damages for defamation is not an easy job for a judge or jury. In many countries, civil courts deal with a large number of cases involving claims for physical injury, so judges and juries get a lot of guidance on how much to award. They have lots of examples to follow in deciding how much to award for the loss of a working man's leg or a schoolgirl's life. Defamation cases are much rarer, so there are fewer examples to judge by.
Also, if a man's physical injuries mean that he will never work again, the court can estimate how much he could have earned over a lifetime and award enough money to compensate for the rest of his life. It is a lot harder to judge how badly harmed a person's reputation has been and how lasting that harm might be.
Damages
There are several kinds of damages a court can award, either separately or together.
There are general or compensatory damages, which a court may award for a person's loss of reputation, shame or hurt feelings. Under common law, once the court has found that he has been defamed, the plaintiff does not have to prove that actual harm has been done.
General damages do not have to be large sums of money. If a judge or jury finds that you have defamed the plaintiff but that no real harm has been done, the plaintiff may be awarded nominal damages. These are usually expressed in the smallest coin of your country, so a court may award the plaintiff one dollar, for example.
Nominal damages may also be awarded if the court feels that you have been only slightly at fault or that the plaintiff was in some way responsible for the defamation in the first place.
Special damages compensate for any loss of business or earnings the plaintiff may have suffered as a result of the defamation. These could also include any money the plaintiff has spent as a result of the defamation, for example in sending letters to clients denying the allegations.
Aggravated damages can be awarded if the court thinks that the defamation was deliberate, possibly out of ill-will or any other improper motive (usually referred to as malice, which we discussed earlier). For example, if you knew that what you were publishing was false and defamatory, but went ahead with the story to stir up a scandal and boost newspaper sales, the court would probably award aggravated damages against you. They may also award aggravated damages if the defamation was said in a particularly nasty way.
Punitive or exemplary damages, which may sometimes be awarded if the defamation is so extreme that the court feels the need to punish you or warn other journalists against similar conduct.
Damages are usually large in the case of media organisations because the courts think that they can pay more for their mistakes than individuals can.
As in any court case, the judge or jury may also award costs against you if you lose (or against the plaintiff if they lose), or simply say that each side should pay their own costs of the case. In legal systems where lawyers are highly paid, costs can be very expensive.
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Criminal defamation
So far we have looked at defamation as a civil matter, with the courts awarding monetary damages against the publisher. Defamation can also be a criminal offence, which means that those found guilty could be fined or sent to prison or both. This is much less common than civil defamation.
A charge of criminal defamation can be brought against you if the words, pictures or gestures you use provoke riots, mob violence or other breaches of the public peace. For this reason, the prosecution does not have to prove publication to a third party. It is enough that the person you are referring to hears the words (or sees the gestures) and reacts violently. However, unlike civil defamation, the prosecution will have to prove that the words complained of were malicious. In civil defamation the words may be malicious, but in criminal defamation they must be.
In the specific case of the media, criminal defamation charges are usually brought against a journalist or publisher accused of using the power of the media for some illegal or improper purpose, such as revenge or blackmail.
There are some safeguards for publishers, printers and newspaper sellers under both civil and criminal defamation laws. It is a defence for a proprietor or publisher to prove that the matter complained of was put in without his knowledge and without negligence on his part. Newspaper sellers can also often defend themselves on the grounds that they did not know the content of the newspaper - they cannot be expected to know everything which is in every paper or magazine on their shelves.
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Investigative reporting
So far, we have mainly been talking about defamation in day-to-day reporting. This usually happens when mistakes have been made in either fact or judgment.
However, there are times when journalists risk defamation because they believe that they cannot do their duty otherwise. This happens in the case of investigative or in-depth reporting, when you try to expose activities which are against the interests of the public. This could be exposing mismanagement, corruption or the abuse of public trust. (For more details see Chapters 39 to 41 on investigative reporting.)
Although the laws do not usually favour journalists over any other members of society, this role of the media as a watchdog has been recognised by the courts. That does not mean that journalists can ignore the laws of defamation just because they are doing a public service. However, judges will take such acts of public service into account in defamation cases. Beyond that, each editor must decide whether to risk defamation in the public interest.
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Silencing or SLAPP writs
This is a small but important area of the laws on defamation. A writ is a legal order from a judge telling somebody to do something or to stop doing something. Silencing writs (officially a kind of injunction) are often used by people to stop public debate on an issue which would have a bad affect on their interests.
Silencing writs usually work like this: The plaintiff may ask the court for a writ alleging defamation after the first story about him has appeared. He will also ask the court to issue an injunction naming you and ordering you to stop further publication on the issue, otherwise you may be in contempt of court. Having silenced you, the plaintiff usually does not push the defamation claim through the courts.
Often they are called a form of SLAPP writ, which means something like “Strategic Litigation Against Public Participation”. There are several explanations of what SLAPP stands for but there is general agreement that they are writs which are used, often by powerful companies or individuals, to frighten opponents with the threat of very expensive legal action.
Fortunately for the media, the Court of Appeal in England has decided that injunctions should not be used to stop debate on important issues. So a silencing writ does not halt the publication of any further criticism, it merely puts the newspaper or broadcaster at greater risk of being sued for defamation if it does repeat the criticism.
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TO SUMMARISE:
Defamation is to spread bad reports about someone which could cause them harm
If the plaintiff can prove that the words had a defamatory meaning, identified him and were published, that is defamation
The main defences against defamation are truth, fair comment and privilege
To use the defence of truth, you must prove that the imputation was true
A fair comment must be reasonable, based on the facts available to you
If you are motivated by malice or any other improper motive, you can be charged with criminal defamation
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For a more detailed look at how defamation works in Australia, go to: Defamation in Australia.
Also, Professor Mark Pearson of Bond University in Queensland has produced The Australian Journalist's Defamation Checklist, an excellent guide to defamation together with an interactive online checklist to use when writing a story.
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