1. A daily newspaper reporter is attending a trial. By his deadline time, only the prosecution case has been heard. In the law of libel, can his newspaper publish a report at this stage? Give your reasons.
Answer:
The newspaper cannot publish the report at this stage.
The daily newspaper reporter is attending a trial, that means the reporter is reporting court cases. So automatically the journalist enjoys absolute privilege.
For Absolute privilege to apply, according to the Defamation Act 1996, a court case report must be “fair and accurate”. This does not mean that the proceedings must be reported verbatim; a report will still be “fair and accurate” if:
(I)it presents a summary of both side
(ii)it contains no substantial inaccuracies;
(iii) it avoids giving disproportionate weight to one side or the other
Provided it complies other requirement of absolute privilege defence:
(I)accurate (especially charge, names, plea and case continuing)
(II) published contemporaneously (first available edition); and
(III) the report is of judicial proceedings (do not publish defamatory outbursts – they are not protected. Non – defamatory parts of outbursts may be published);
(IV) held in public in the UK (or in European Courts of Justice and Human Rights).
As by the reporter's deadline, only the prosecution case has been heard, he/she is unable to write a balanced copy.
In a case in 2006, (Bennett v Newsquest, see Media Lawyer newsletter, No 64), Mr Justice Eady pointed out that a newspaper story which reported a criminal case and which reported a criminal case and which was the subject of a libel action. He said:
“The report must be fair overall and not give a misleading impression. Inaccuracies in themselves will not defeat privilege. Omissions will deprive a report of privilege if they create a false impression of what took place or if they result in the suppression of the case of part of the case of one side, while giving the other.”
If the report is held to be unfair or inaccurate in any important respect, the media organisation publishing it loses the protection of privilege.
(b). When a defendant charged with a summary offence in a magistrates court takes his place in the dock a man in the public gallery shouts: “He is innocent. The policeman beat him up”. Discuss whether this comment can be used safely in the light of the laws of defamation.
Answer:
The answer's safety depends on the content itself is defamatory or not.
The comment is made during the court proceedings, according to the Defamation Act 1996, it states for absolute privilege to apply, the report is:
of judicial proceedings (not outbursts or interruptions [if people making them are not involved in the case] or reports not read out in court – so do not publish defamatory outbursts – they are not protected. Non – defamatory parts of outbursts may be published);
In general, absolute privilege extends only to the actual report of proceedings held in open court.
It does not protect, for example, defamatory matter shouted out in the court, e.g. from the public gallery by someone who is not part of the proceedings. However, if shouted comment is not defamatory, it can in libel law be reported safely whoever made it.
So in this case, if the shouted content is not defamatory, the paper can publish it safely; but if the content is defamatory, then the paper cannot publish it safely.
2. A reader threatens to sue a newspaper for defamation. The reporter who wrote the feature which contained the alleged defamation says to the Editor. “We've noting to fear. I showed the full feature to the reader before publication because it was a complicated story, he agreed with it and had the chance to reply to the allegations in it about him”.
In the law of defamation, is the reporter correct? The answer must indicate how conclusions are reached.
Answer:
The reporter is incorrect.
The defence in his case is justification. It states:
Justification means truth and applies to statements of fact. To establish this the defendant must prove, on the balance of probabilities, the truth of the words both in substance and in fact, in their natural and ordinary meaning and of every innuendo, inference and imputation that can be reasonably drawn from the words.
The danger of justification defence in this case is though the reporter said he showed the reader before publication (plus the reporter himself/herself even admit it was a complicated story), and it seems the reader agreed with it and had the chance to reply to the allegations in it about him.
However, there is no indication to say the reporter persuaded the witness to sign a written statement at the time and date it. Or such testimony could be an audio-recording of any witness willing to testify against the claimant.
Apart from the danger relevant with the case said above, other dangers of justification defence are (which might apply if the paper is sued on a later stage):
(I)credibility/reliability/availability of witnesses e.g. where there is a time gap.
(II)If stick to defence all the way to trial - greater damages likely to be awarded for aggravation and substantial costs.
(III)Difficult to prove, especially where meaning created by inference or innuendo.
(IV)Sometime may be best financially to settle out of court because of large awards of damages and substantial costs in going to trial.
(V)Uncertainty of outcome – what meaning will the jury find?
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