Defamation in Journalism: A guide to legalities.
What are the costs of not understanding the legalities concerning Journalism?
Legalities are put in place to defend all parties of a story. A common misconception is that a law is in place simply to defend the defendant. This assumption is not without logic, given the similarity of the words if nothing else. However, a law is there is deter the perpetrator also; in journalistic law, from damage to reputation and damage in the form of monetary reparations. With this in mind, what exactly is the law behind defamation, and how is it implemented? Whilst several of my blogs have focussed solely on the world of political journalism, I am going to craft this one such that it is more open to examples and case studies outside of this world, since the issue is such a far reaching topic that it would seem illogical to limit it’s scope to one particular sector.
“It is extraordinary that in the dialectic of the law the tension between liberty of speech and the reputation of men, which was largely responsible for the guarantee of speech and press in the First Amendment, should have been so long in reaching the Supreme Court for resolution” — Paul. A. Freund. Full journal article available here.
As the late Paul. A. Freund discusses in the above journal article, which coincidentally formed the origin of my research on the legal topic, defamation is defined as:
“…the publication to a third party of a statement about you which has caused or is likely to cause serious harm to your reputation. The defamatory publication will either be a libel or a slander” — Carter Ruck
As indicated by Carter Ruck — a “groundbreaking” law firm (The Guardian) — defamation can be broken down into two constituent offences: Libel and Slander. It is worth noting down what exactly these two terms mean, since various cases of defamation centre around either offence.
LIBEL
“Libel relates to a defamatory publication which is permanent. Most obviously this includes written material (books, newspaper and magazine articles or material published online), as well as allegations appearing on TV or radio” — Carter Ruck
Concerns itself namely with the written word
SLANDER
“Slander relates to more transient publications, principally spoken words or even physical gestures” —Carter Ruck
Concerns itself namely with the spoken word and/or kinesics
The law surrounding defamation makes for perhaps the salient set of rules by which journalists must abide. As indicated by Paul. A. Freund in his quote aforementioned, defamation toils between the liberty of speech and the reputation of men. Whilst he concerns his article with the US, in which freedom of speech has a specific amendment, here in the UK we still must grapple between our freedom to express our opinion, and the potential adverse impact this may have on our peers. These are the grounds that the defamation law patrols.
Examples
Breaking the defamation law can and does incur serious reprimands as a recent defamation case in Australia illustrates. Actor Geoffrey Rush has been awarded the largest payout for a defamation appeal ever paid to a single party — a whopping $2.9m (Australian dollars) — equivalent to about £1.57m. The case was against Nationwide News which publishes Australia’s Daily Telegraph. The original accusations against Mr. Rush detailed prolonged inappropriate behaviour towards co-actor Eryn Jean Norvill. The case was eventually dismissed as it was deemed prone to exaggeration without sufficient proof and Mr. Rush has since sought an injunction to prevent the re-publishing of the accusations. This case struck a chord within me illustrating the profound negative effect that defamation can inflict. I did not choose the example — surprising as it may be — because of it’s title as the biggest single payout case ever, I was originally going to focus on a more local story in which a pro-independance blogger lost his defamation case and was ordered to pay legal fees Kezia Dugdale since a) it was local and b) it was focussed on politics. However, I chose the story of Mr. Rush because my partner is Australian, she lives in a place called Campbelltown (~30 mins away from Sydney, NSW), the place that the Daily Telegraph originates and is most read. I remember her and her family telling me just how much people there had believed the accusations when they were first published. Hearing members of the public — members of the public that I am close to — admit to believing what eventually turned out to be fake news really highlighted to me the real life impact that such defamation cases can have. This impact on future reputation was even taken into consideration in the payout itself, as a reported $919,678 (Australian dollars) is set to cover future financial impact costs of the accusations. Judge Michael Wigney describing the original article further as:
“recklessly irresponsible piece of sensationalist journalism of … the very worst kind” — Judge Michael Wigney. Original quote here.
I have written a blog discussing the positive and negative aspects of sensationalism as a tactic of journalists. That blog can be read here.
Breaking down the case to identify the various aspects of defamation follows:
Libel or Slander?
The article was written and published by the Daily Telegraph, this would be enough to categorise it as “permanent”, as per the Carter Ruck definition, therefore it is Libel.
Damage to Reputation?
In short, yes. The vicious nature of the accusations were — and rightly so — easily able to damage reputation. This would be perfectly fair if they were proven to be accurate, given their despicable nature. However, since they were proven to be false, there was undue damage to the reputation of Mr. Rush, no doubt contributing to the extent of the payout.
Truthful or Untruthful?
This, again, is important in all defamation cases but especially given the nature of the accusations. The behavioural accusation put against Mr. Rush was not only inappropriate, it was illegal, and as such the truthfulness of the accusation was paramount to the case. It was eventually proven to be untrue.
Libel — Damaging to Reputation — Untrue
These attributes explain why this a serious defamation case.
Further Examples.
As mentioned in one of my previous blogs with the example of Nick Sandmann from the Covington Catholic High school, misrepresentation in the media has caused a perhaps unwarranted negative reaction. The negative perception of the students is epitomised in this video from VOA News.
“The reaction was so strong, in fact, that upon exposure of the further evidence, Nick, as well as other students, were approved to file a $250m lawsuit against NBC on defamation charges” — Alex Bowes. Original blog here.
The efficacy of this lawsuit will be proved in time, however I thought it would be interesting to apply the same three defamation factors used to analyse the case of Mr. Rush, to Nick Sandmann’s case:
Libel or Slander?
The article was printed in several paper newspapers and online newspapers. This would be enough to constitute permanency, therefore it is Libel.
Damage to Reputation?
Again, yes. The school which Nick attends had to issue a formal apology on his behalf and on behalf of the other students involved. This, coupled with the original narrative for the event is enough to damage his reputation.
Truthful or Untruthful?
This is likely to be the point of contention at court. With regards to the criteria for suing a media outlet for defamation, the burden of proof falls upon Nick to prove these three things:
— A journalist or media outlet published something false about you.
— That person acted deliberately and negligently.
— The false statement caused you harm.
The second and third criteria are easy to prove. However, whether Nick and his friends acted in aggression to Nathan Phillips, whether it was the other way around, or whether it was a convoluted mixture of the two, will likely be the cause for debate. If it is proved that in fact Nick did not act in aggression and that the news outlets stories were incorrect, then the three criteria are as follows:
Libel — Damaging to Reputation — Untrue
Further Thoughts
If defamation is such a serious offence — and it is — how can it be avoided? This stems back to the origins of characteristics of journalism. I have spoken about this in several of my blogs already, but the principles of journalism as per the International Federation of Journalists are:
“truthfulness, accuracy, objectivity, impartiality, fairness, and public accountability” — International Federation of Journalists.
Accuracy and truthfulness are the salient two with regards to defamation, since failure to adhere to these two could leave an article lacking the relevant criteria with which to defend itself from prosecution. Perhaps simply a “back to basics” approach with regard to vetting the accuracy of information is enough for a substantial step in the right direction.
Defamation is a problem in all sectors of journalism. Yes, it does affect political journalism, which is my main area of interest, but it is larger than just that. We are talking about the ability to ruin somebody’s life. Ultimately, there may be no way to completely eradicate defamation from our media, since false information, ulterior motives and biases will always exist. However, it is critical that we seek to make our work more and more accurate, not only in the interest of the public parties who’s reputations are often needlessly subjected to false scrutiny, but also for the rest of the journalistic community, helping them to avoid financial burdens and damages to reputations such as those discussed in this article.
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