4. What are the defamation dangers in publication of the following story about a TV soap opera in a TV critic's column? (The critic usually features Sailing Down the River Ox at least once a week in his column and has never had a positive thing to say about the award winning soap).
“Frank Wood, not usually known as a gifted actor at the best of times, gave an exceptionally unconvincing performance playing David Roberts in last night's dramatic episode of Sailing when an argument turned into a fight, resulting in David's arrest and Jim Jamieson being admitted to St. Mary's Hospital, Oxdown, with knife wounds. Perhaps Frank was reminded of the nine months he spend in Oxdown Prison twelve years ago, after being convicted of an assault following a similar pub brawl.”
Your answer should explain how your conclusions are reached.
Answer:
According to the defamation defence fair comment, the defence must prove:
The comment is recognisable as comment;
it is based on provably true facts or privileged matter;
sufficiently referred/alluded to, indicated or stated in what is published with the comment – usually set out in the article unless already well-known;
it is an honestly held opinion (ie. What the writer genuinely believe); and
it was on a matter of public interest (including TV, film or restaurant reviews).
The defence can succeed no matter how prejudiced the writer is nor how exaggerated the way in which he expresses his opinion.
The defamation dangers are the following two issues:
Firstly, in the review, the TV critic writes: perhaps Frank was reminded of the nine months he spend in Oxdown Prison twelve years ago, after being convicted of an assault following a similar pub brawl.
The above sentence will confuse readers if this is the true facts or just mocking comment. It is not recognisable as comment.
Secondly, the case indicates that the TV soap is an award-winning programme, which obviously is a good soap that audience enjoy it.
However, the TV critic has never written anything good about it, in this case, the review is not based on provably true facts.
6. After a man is sentenced to life imprisonment for the murder of his step-daughter, the local authority sets up, under an Act of Parliament, a public inquiry into the handling of the case by its social services department. Its report is severely critical of some social workers.
Discuss he local newspaper's legal position when:
(a) reporting the evidence of the inquiry;
(b) reporting the inquiry's findings
(c ) commenting on the case after publication of the report
The answer must indicate how conclusions are reached in the light of the defamation.
Answer:
(a) reporting the evidence of the inquiry:
According to The Defamation Act 1996, under Qualified Privilege Defence Schedule I Part II, proceedings of public inquiry, local inquiry or tribunal set up under statutory powers and held in public are covered by the qualified privilege defence.
Reporting the evidence of the inquiry is part of reporting the proceeding, therefore, if provided all the defence's requirements were met – fair; accurate; published without malice; and on a matter of public concern or benefit. Then the local newspaper is safe to publish the story.
(b) reporting the inquiry's findings:
According to the same Act and under Qualified Privilege Defence Schedule I Part II, the inquiry's findings are not covered by it, it is the proceedings to be covered.
Therefore, even if provided all the defence's requirements were met – fair; accurate; published without malice; and on a matter of public concern or benefit, the paper is not safe to publish the findings.
(c) commenting on the case after publication of the report:
The comment can be defended by the fair comment defence, which applies to comments/opinions only. The defendant must prove:
(I)the comment is recognisable as comment;
(II)it is based on provably true facts or privileged matter;
(III)sufficiently referred/alluded to, indicated or stated in what is published with the comment – usually set out in the article unless already well-known;
(IV)it is an honestly held opinion (ie. What the writer genuinely believe); and
(V)it was on a matter of public interest (including TV, film or restaurant reviews).
The defence can succeed no matter how prejudiced the writer is nor how exaggerated the way in which he expresses his opinion.
Therefore, as long as the comment meets above requirements, then it will be published safely.
It is the fair comment defence which protects the expression of opinion contained in reviews of, among other things, performances, books, holidays, and restaurants.
In the Irish News restaurant review case, the defence was dealt a blow when a libel jury in Northern Ireland awarded £25,000 damages to the owner of a restaurant called Goodfellas over an unfavourable review in the Irish News. But the award was quashed on appeal in 2008, with the Northern Ireland Chief Justice, Sir Brian Kerr, saying:
Only if the jury has a clear understanding of what is capable of constituting comment, can it address the thorny issue of whether the facts on which comment is based are capable of justifying the comment made.
He said that the jury had been misdirected, but that the court's task had been made more difficult by the confusion generated by the Irish News in portraying statements of comment in the article as facts.
Showing posts with label Defence. Show all posts
Showing posts with label Defence. Show all posts
Tuesday, 6 July 2010
Monday, 5 July 2010
Defamation defence part II (draft)
3. A local council's health department investigating an outbreak of food poisoning traces the source to turkeys sold at a supermarket. A press statement issued by the department warns anyone who has bought a turkey from the store not to eat it.
Through a clerical error, the statement gives the name of another supermarket which has nothing to do with the matter. Explain whether the press are liable to this store for defamation.
Answer:
The press are liable to this store for defamation.
According to the Defamation Act 1996, under qualified privilege defence, reports of numerous occasions receive Statutory Qualified Privilege, providing they are:
(a) fair; (b) accurate; (c) published without malice; (d) on a matter of public concern or benefit, and (e) subjected to publication if requested of a reasonable letter or statement by way of explanation or contradiction. Ethically, under the PCC Code, paper should correct significant inaccuracy anyway, even if not to blame.
From the case said above, the press statement issued by the department, it is covered by the qualified privilege defence Schedule 1 Part 2 paragraph 9:
Notice, reports or statements from government departments and bodies performing governmental functions (e.g. local authorities and the police)
However, the statement itself is inaccurate, therefore it is not subject to the requirement of fair and accurate copy and the press are liable to this store of defamation.
5. An MP has fought (both inside and outside parliament) for compensation in cases where former employees at steelworks have contracted cancer since the works closed. The MP issues a brief press statement following an inquest into the death of one of the former steelworkers. In the statement the MP criticises the coroner and says: “The inquest was just a whitewash”.
Is it safe to use the above extract from the statement? Give your reasons in the light of defamation.
Answer:
No, it is not safe to use the above extract from the statement.
According to The Defamation Act 1996 Qualified Privilege Defence Schedule I Part II, public meetings are protected by the part II: bona fide meetings lawfully held for a lawful purpose for the furtherance of discussion of matters of public concern whether admission to the meeting was general or restricted.
If “public meeting” comes within this definition, press conferences are covered, including handouts not read out.
However, press statements are not press conferences, so not covered by qualified privilege, unless the press statements are issued by government department and bodies performing governmental functions. e.g. local authorities and the police.
In this case, the MP is not qualified to issue the press statement according to the requirement, even though what the MP said might be fair, accurate, and without malice.
Therefore, it is not safe to the extract from the statement.
In the case of McCartan Turkington Breen v Times Newspaper Ltd, 2001. The Times had been sued over its report of a press conference called by a group of people (the Clegg Committee) campaigning for the release of a soldier Lee Clegg convicted of murdering a joyrider.
Then during the press conference, defamatory statements were made concerning the solicitors' defence of Private Clegg. On the next day, The Times reported those statements. This led to the libel proceeding by the solicitors of Private Clegg against The Times.
A jury awarded £145,000 damages. But on the appeal, Lord Bingham said that press representatives could be regarded either as member of the public themselves or as 'the eyes and ears of the public to whom they report.'
The court also ruled that a written press release, handed out at the meeting but not read aloud, and reported by the paper, was in effect part of the press conference proceeding.
Through a clerical error, the statement gives the name of another supermarket which has nothing to do with the matter. Explain whether the press are liable to this store for defamation.
Answer:
The press are liable to this store for defamation.
According to the Defamation Act 1996, under qualified privilege defence, reports of numerous occasions receive Statutory Qualified Privilege, providing they are:
(a) fair; (b) accurate; (c) published without malice; (d) on a matter of public concern or benefit, and (e) subjected to publication if requested of a reasonable letter or statement by way of explanation or contradiction. Ethically, under the PCC Code, paper should correct significant inaccuracy anyway, even if not to blame.
From the case said above, the press statement issued by the department, it is covered by the qualified privilege defence Schedule 1 Part 2 paragraph 9:
Notice, reports or statements from government departments and bodies performing governmental functions (e.g. local authorities and the police)
However, the statement itself is inaccurate, therefore it is not subject to the requirement of fair and accurate copy and the press are liable to this store of defamation.
5. An MP has fought (both inside and outside parliament) for compensation in cases where former employees at steelworks have contracted cancer since the works closed. The MP issues a brief press statement following an inquest into the death of one of the former steelworkers. In the statement the MP criticises the coroner and says: “The inquest was just a whitewash”.
Is it safe to use the above extract from the statement? Give your reasons in the light of defamation.
Answer:
No, it is not safe to use the above extract from the statement.
According to The Defamation Act 1996 Qualified Privilege Defence Schedule I Part II, public meetings are protected by the part II: bona fide meetings lawfully held for a lawful purpose for the furtherance of discussion of matters of public concern whether admission to the meeting was general or restricted.
If “public meeting” comes within this definition, press conferences are covered, including handouts not read out.
However, press statements are not press conferences, so not covered by qualified privilege, unless the press statements are issued by government department and bodies performing governmental functions. e.g. local authorities and the police.
In this case, the MP is not qualified to issue the press statement according to the requirement, even though what the MP said might be fair, accurate, and without malice.
Therefore, it is not safe to the extract from the statement.
In the case of McCartan Turkington Breen v Times Newspaper Ltd, 2001. The Times had been sued over its report of a press conference called by a group of people (the Clegg Committee) campaigning for the release of a soldier Lee Clegg convicted of murdering a joyrider.
Then during the press conference, defamatory statements were made concerning the solicitors' defence of Private Clegg. On the next day, The Times reported those statements. This led to the libel proceeding by the solicitors of Private Clegg against The Times.
A jury awarded £145,000 damages. But on the appeal, Lord Bingham said that press representatives could be regarded either as member of the public themselves or as 'the eyes and ears of the public to whom they report.'
The court also ruled that a written press release, handed out at the meeting but not read aloud, and reported by the paper, was in effect part of the press conference proceeding.
Sunday, 4 July 2010
Defamation defence part I (draft)
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?
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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