Libel and slander laws

Describe and assess the impact of the operation of the law of libel in the UK through the use of two important examples from the last ten years.

Use these also to examine possible reforms of the libel law.

Libel is a defamatory statement written, or printed, about an existing person or corporation, which can cause public 'hatred, contempt or ridicule' (Pearson, 2004; pp.169) towards the individual or institution in question. Libel derived from the law of defamation; a very complex law to elucidate and understand. In the UK, the law of defamation is separated into two distinct parts; libel and slander. Slander is defamation in the spoken or transient form (with two exceptions involving the Defamation Act 1952 and the Theatre Act 1968) whereas libel is found in a permanent, i.e. printed or written, form such as newspaper articles or pictures or even waxwork (e.g. Monsoon Vs. Tussauds, 1894.) However, both forms can only be tried when published or communicated with a third party. The law does not apply to the deceased whether they are the claimant (through their relatives) or defendant within a case.

Libel and slander laws can be found almost worldwide and all appear to descend from early English defamation laws. They are believed to seek a 'fair balance' between freedom of speech against the protection of an individual and their reputation through an 'unjustified attack' (Sturcke; www.theguardian.co.uk) It is thought that the earliest evidence of libel or slander as common law was found within the reign of James I (1603-1625) although there was no distinct difference made between permanent or transient forms of defamation during this period. At this time, the crime was stated under the term 'scandalum magnatum', which is of roman origin (much like most modern UK laws.) This translates as spreading rumours or false truths about the leaders in society at the time. This has since developed to the law which we now know today which affects all people and all platforms of media that we know and use.

The law of libel has made an enormous impact on the UK media industry, in both a negative and positive way, with journalists now more aware of what and who they write about and celebrities now very wary of what is being written about them. For example, in 2008, Peaches Geldof was awarded a substantial but undisclosed monetary compensation after British 'red-top' tabloid, The Daily Star, made allegations that she was a £5,000 a night prostitute. After reporting her complaint to the Press Complaints Commission (PCC) Geldof's legal team confronted Express newspapers, the company that publish The Daily Star, regarding the article headlined, 'Peaches: Spend the night with me for £5k.' Peaches reputation was brought in to question through this allegation so she felt, and the courts agreed, that this was a defamatory statement that would be classed as libel hence Peaches Geldof's reward of compensation. Express Newspapers acknowledged and agreed that the words implied that 'Ms Geldof provided services of a personal sexual nature for the payment of a fee' (Anon; www.bbc.co.uk). As this example proves, the law allows an individual to protect themselves and their reputation whilst also enabling the writer or creator of the defamatory statement to defend themselves and their actions. The claimant within the case will never have to prove how they have been damaged by the allegations or statements and will never have to prove if the statements are true, that is the job of the defendant who must prove it is in the public interest to publish such content.

In many cases, journalists and 'faces of the media' believe they are losing their right to freedom of speech because of the law. Members of the Index on Censorshipare thought to believe that the laws regarding libel and slander in the UK, which is apparently known as the 'defamation capital of the world'(MacManus, www.opendemocracy.net),are "a malign force" and "the most significant daily chill on free speech in the UK" (cited by Engel; www.guardian.co.uk).

Another one of the major complaints regarding the law initially was the cost of taking a case to court. Anthony Buxton of George Davies Solicitors LLP (2009) is cited on the internet saying that, 'the cost of the case should not distort the ability to express honest criticism' (Brown; www.how-do.co.uk) Due to the law not being one of criminal conviction, the outcome of cases usually results in the claimant receiving monetary compensation. Prior to the addition of the law of defamation to the Conditional Fee Agreements Order in 1998, it was, more often than not, the wealthier person who was able to take libel cases to the civil courts. This being because they had the ability and resources to pay for their lawyers and solicitors. The Conditional Fee Agreements Order, however, saw that on a 'no win, no fee' basis any person gained the ability to be able to fight for their reputation in a libel case. In this, the claimant can take a case of libel to court, without a question about their financial status, and if they are successful, the legal fees and compensation should be paid by the defendant and if they are unsuccessful, there are no legal fees to pay. Clear to see, cases involving Conditional Fee Agreements (CFA's) are taken at a huge risk to the legal firms as they could face a huge loss if they are unsuccessful.

Due to the risk of costs being so high, with recorded cases resulting in costs of between £1 and up to reports of around £2.4million for publishers, newspapers are often reluctant to fight cases of defamation and many are known to employ legal workers or teams to overlook the editing process to ensure that no claims of libel can be made regarding the content.

Famously, in 2000, two TV reporters and the ITN Company received a total of £375,000 in damages forcing the former magazine known as LM or Living Marxism to go into liquidation and cease publication after they published an article claiming that the reporters had sensationalised an image of an ill-looking Muslim taken through the barbed wire of a detention camp in Bosnia. Such damages can be determined by the jury or sometimes even the judge of a case, though monetary compensation can often be reduced or increased by a court of appeal (since a change of law in 1990.)

Another complaint regarding the law is the ambiguity of the actual definition of defamation. It is fact that different people read texts differently due to their cultural competence, this meaning that 'the statement that seems tooneperson quiteinnocuousmay, equally clearly, bedefamatory to another' (Welsh, 2007, pp.223)

This relates back to the risk that legal firms are under when taking on a case as it is difficult for them to decide whether or not the judge or jury will see the statement as defamatory. Law lecturer, Ursula Smartt (2006), outlines the general rules to look for when trying to discover whether or not a statement is defamatory,

'A statement is defamatory if it:

  • Exposes a person to hatred, ridicule or contempt
  • Causes him to be shunned or avoided
  • Lowers him in the estimation of right-thinking members of society generally or,
  • Disparages him in the office, trade or profession.'

A good example of this is shown in Adam Porters, Basic UK Libel Law for Idiots, in which he explains that, 'For example, if you said Peter Sutcliffe had never paid his TV licence in his life that would not be defamatory - or it is very unlikely to be. However, if you said the same about TV boss Greg Dyke, that would be.' (Porter; www.urban75.org) This is easy to understand in that Peter Sutcliffe is a renowned serial killer so the statement would not lower his reputation any more whereas Greg Dyke's career when he worked for the BBC would have been in jeopardy if this statement was made about him.

The complexity of this definition and the idea that articles can be read and interpreted differently by differently puts a lot of pressure on the media to prevent cases being put forward.

Such problems within the law and the gap created due to the rapid advance in recent media technologies has brought about possible reforms to the law, following a consultation by the government in 2009. The introduction of the internet and the world wide web has brought about such innovations as social networking sites and blogs, both of which have come under much scrutiny recently regarding the laws of libel with solicitors claiming it has become 'an explosion of libel cases' (Lewis, 2009; www.how-do.co.uk.) It is believed that bloggers can claim what is known as innocent dissemination, i.e. that they were unaware of the defamatory nature of their comment or statement and also that "It's easy for social media organisations to hide behind the fact they're not publishers of the content, but ultimately they do have to take responsibility and moderate."(Brown; www.how-do.co.uk)

This being the case, the ministry of justice published a debate last year suggesting possible reforms to the law. Such possible reforms include the introduction of a single-publication rule, much like the US ruling, in which one edition of a newspaper or magazine counts as one cause of action no matter how many times it is published or where it is distributed. This would be to 'prevent open-ended liability' (anon; www.bbc.co.uk.) With regards to online publications, there are suggestions to extend the ruling of a defence through qualified privilege, i.e. without acting out of malice; they can claim fair reporting in the public interest, to publishers after the one year time limit. In this, claims can only be actionable if the publishers have failed to release a correction. Secretary for the state, Jack Straw, believes that the current law needs to be updated in order to be, 'fit for the modern age' (cited by anon; www.bbc.co.uk.) This has been met by heavy criticism from campaigners and devout bloggers who believe that these reforms and the law, in general, further reduce the UK's freedom of speech in what is supposed to be a democratic society.

From such prominent debates to be created about the law of libel, it is clear to see what a huge impact it has made in the UK, within the media industry. Although the United Kingdom is a democracy which encourages freedom of speech, it is also essential to respect an individual's reputation, something that many believe the libel law creates a fair balance of. However, in saying this, many characters within the media industry such as journalists and publishers, have clear opposite opinions to this in that they believe their right to freedom of speech is being prohibited by such laws. The possible reforms that the UK government has suggested, due to the rapid advance in technology and the instantaneous effect of the internet, seem viable if the UK is to bring the libel laws into the modern era and make the laws count for all publications i.e. making a 'fair balance'.

Bibliography

Books

  • Alberstat, P; 1996. Media Production Agreements. Routledge, London.
  • Barendt, E et al; 1997. Libel and the Media: The Chilling Effect. Oxford University Press, New York.
  • Hooper, D; 2000. Reputations Under Fire: Winners and Losers in the Libel Business. Warner, London.
  • Pearson, M; 2004. The Journalist's Guide to Media Law: Dealing with Legal and Ethical Issues. Allen & Unwin Academi, London.
  • Reville, N; 1991. Broadcasting: The New Law. Butterworth & Co Ltd, London.
  • Smartt, U; 2006. Media Law for Journalists. SAGE Publications, London.
  • Welsh, T et al; 2007. McNae's Essential Law for Journalists. Oxford University Press, Oxford.

Websites

  • Anon; 2009. British Libel Law and the Internet [online]. Available at: http://www.guardian.co.uk. (Accessed January 24th 2010)
  • Anon; 2010. National Petition for Libel Law Reform [online]. Available at: http://www.senseaboutscience.org.uk. (Accessed January 22nd 2010)
  • Anon; 2009. Plan to update libel law for web [online]. Available at: http://news.bbc.co.uk. (Accessed January 24th 2010)
  • Engel, D; 2009. Freedom of Speech is not an Unfettered Right [online]. Available at: http://www.guardian.co.uk. (Accessed January 22nd 2010)
  • MacManus, E; 2009. Will British Libel Law kill net free speech? [online]. Available at: http://www.opendemocracy.net. (Accessed January 22nd 2010)
  • Ponsford, D; 2009. Libel law can kill- Reform it now [online]. Available at: http://www.pressgazette.co.uk. (Accessed January 24th 2010)
  • Porter, A; 2009. Basic UK Libel Law for Idiots [online]. Available at: http://www.urban75.com. (Accessed January 21st 2010)
  • Sturcke, J; 2006. Libel Law Explained [online]. Available at: http://www.guardian.co.uk. (Accessed January 24th 2010)
  • Tench, D; 2009. Libel Law Analysis [online]. Available at: http://www.guardian.co.uk. (Accessed January 22nd 2010)

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