home is run by a pillar of the community - Marcus Bent OBE, senior social
worker, head church warden, president of a rotary club, captain of a
charity cricket team.
Mr Bent has a staff of six to help him deal with about 30 children,
many of whom are emotionally disturbed.
A young social worker calls the newsdesk and says she resigned from
the social services department last month after working at the children’s
home for six months.She claims that Marcus Bent physically and mentally
abuses children who dare disobey him or other members of the staff.
She says that she had seen him kick one boy repeatedly after knocking
him to the ground and had also seen him slap one girl so hard that her
face swelled up.
She claims that children who misbehaved were routinely locked up for
as long as 12 hours in a small, unlit, unheated room equipped with just
a mattress and a chamber pot.
The social worker says she protested to her superiors but got nowhere
so she decided to resign. She is too frightened to go to the police.
Social services confirm that the woman had worked at the home and had
resigned but decline to go any further. You are refused permission to
talk to the children.
Who might sue?
Bent: Libel is all about the protection of a person’s
reputation and Marcus Bent ‘ pillar of the community’ plainly
has a good reputation to protect and would be odds on to sue. He is
being accused directly of child abuse.
Unidentified staff of six: They are being accused,
by inference, of standing back and letting Marcus Bent abuse children
. It doesn't matter that they are not named. The test for identity only
demands that they would be recognised by people who knew them as being
on the staff of the home. They are six in number and this would be few
enough for them perhaps to claim defamation either as individuals or
as a group. The law tries, for public policy reasons, to restrict the
numbers in group defamation. The largest number so far is the 13 police
officers who sued as a group in the ‘dog handler’ case.
The woman’s “superiors” : Her superiors
where? Her superiors at the home or her superiors in the social services
department? To say that the woman “protested to her superiors
but got nowhere”: is dangerously woolly. Would it leave a reasonable
person with the impression that the people in the social services department
didn’t care? While a local authority itself can’t sue, officials
who work for it certainly can. Great care must be taken when writing
about people who might be said to be on the periphery of the main action.
Four Defences –
which of them apply?
– not applicable, all the allegations are matters of fact.
Statutory Privilege – not applicable
Justification: It is the newspaper’s duty to
prove the libellous allegations to be true on the balance of probabilities.
The paper’s main witness would be the young social worker and
ranged against her would be the estimable Marcus Bent and the other
six staff members. Who would the jury believe?
The paper also has first to worry about the integrity of their informant.
Does she have an axe to grind? Is there some ulterior motive? The paper
should at least have the woman swear an affidavit which must be confined
to those allegations which she is able of her own knowledge to prove.
This has a sobering effect on people who make wild allegations - and
on newspapers who rush to print them.
Secondly, there is an obvious danger in relying on the evidence of children
who are in the home in the first place because of their emotionally
disturbed condition. That is not to stop a newspaper (following correct
procedures when dealing with young people) from interviewing as many
former residents as possible to see if the allegations are correct.
Conclusion: Justification, while in theory possible, is in reality a
non-runner because of the imbalance of evidence.
privilege AKA The Reynolds ‘Public Interest’ Defence
This ‘public interest’ defence allows newspapers to print
allegations of genuine public concern even though it cannot prove them
to the hilt as would be the case here.
The Reynolds case
decided the criteria by which a trial judge would decide whether such
a story merited the protection of qualified privilege. It is worth remembering
that the Reynolds defence is not merely a get-out for good journalism
but is designed to determine if the media as “the watchdogs of
the public” had a DUTY to publish this information in the public
Below is how the 10-point Reynolds defence could be applied to the care
1. The seriousness of the allegation. In this case
it could not be more serious and the newspaper consequently has to be
sure of the quality of its journalism - as tested later on - and the
manner in which the allegations against Bent are presented.
2. The extent to which the story is a matter of public
interest : This is immense. The idea that children are being abused
in a council care home demands a newspaper’s attention as “watchdog
of the community”.
3. The source of the story: Did the social worker have
an axe to grind? Was she giving us information without having direct
knowledge of the events?
4. The steps we took to verify the woman’s information:
The problems in doing this have been set out but failure to act in a
professional manner in this area would destroy our claim for privilege.
5. The status of the information: If there was any
documentary evidence to back up the claims - conclusions of a confidential
official investigation etc or, even better in this case, a detention
or punishment record from the home itself. Documents like these are
6. The urgency of the matter: In this case the newspaper
could reasonably argue that to save the children from further cruelty,
they had to get the story out as soon as possible.
7. Was comment sought from Marcus Bent & co: This
is crucial. People whose reputation is about to be shredded should always
be given a proper opportunity to comment and the newspaper should report
fully what they say - however far-fetched their explanation seems.
8. Did the article at least contain the gist of Bent’s
side of the story: If he won’t comment we must take care to put
in everything we know that might go towards his side of the story.
9. The tone of the article: A headline such as “Bent
batters kids” is a statement of fact we are unable to prove and
is much too sweeping when dealing with a person’s reputation when
you’re not 100pc sure he does in fact batter children. The safer
- and more responsible - way is for the paper to call for an inquiry
into the allegations. We should print the allegations in a factual,
non-emotive manner in a style which has become known as neutral reportage.
10. The circumstances of the publication, including
the timing. This is a catch-all point that enable the judge to take
any other matters into account. It would have no real relevance in this
Other points to consider
seeking a ‘gagging’ order
Marcus Bent has threatened to sue if the allegations are printed but
in many cases like this people would take steps to prevent the newspaper
publishing the story in the first place.They would seek to obtain an
injunction from the courts. The process by which an injunction to stop
publication is either granted or refused is governed by Section 12 of
the Human Rights Act.
applies to the factors a court must take into account when considering
whether to grant an injunction stopping information being made public.
1. If the newspaper is not present or represented at
the hearing then an injunction can not be granted unless the court is
a. The person applying for the injunction has taken every practicable
step to notify the newspaper about the hearing
b. There are compelling reasons why the newspaper should not be notified.
2. No injunction should granted unless the court is
satisfied that the applicant is finally likely to be able to establish
that publication should not be allowed.
3. During it all the court must have regard to:
a. the importance of the newspaper's right to freedom of expression
b. the extent to which it is in the public interest for the material
to be published while at the same time keeping in mind any relevant
issue of privacy.
the children involved.
Guidance for this is contained in clause six of the Press Complaint’s
Commission’s code of conduct which states:
i) Young people should be free to complete their time at school without
ii) A child under 16 must not be interviewed or photographed on issues
involving their own or another child’s welfare unless a custodial
similarly responsible adult consents.
iii) Pupils must not be approached or photographed at school without
permission of the school authorities.
iv) Minors must not be paid for material involving children’s
parents or guardians for material about their children or wards, unless
is clearly in the child’s interest.
v) Editors must not use the fame, notoriety or position of a parent
Clause six is one of those in the code which may be circumvented in
the public interest.
1. The public interest includes, but is not confined
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement
of an individual or organisation.
2. There is a public interest in freedom of expression itself.
3. Whenever the public interest is invoked, the PCC
will require editors to demonstrate fully that they reasonably believed
that publication, or journalistic activity undertaken with a view to
publication, would be in the public interest.
4. The PCC will consider the extent to which material
is already in the public domain, or will become so.
5. In cases involving children under 16, editors must
demonstrate an exceptional public interest to over-ride the normally
interest of the child.
(previously known as fair comment)
Honest comment defends
opinions which by their nature cannot be true or false.To be covered
by the defence of honest comment these opinions must be:
1. Based on fact
2. In good faith
3. Without malice
4. On a matter of public concern
You are features editor of a listings magazine and are presented with
the following (the first of which is made up, the other – no kidding
– is genuine). Are these comments honest in the legal sense?
Your restaurant critic says of the Caprice restaurant: “ Beautifully
furnished, wonderful atmosphere but the food.........! How can the
owners boast of its ‘classical French cuisine’ when the
chef produces a soufflé
so flat that you wonder whether he knows his oeuf from his choux?”
2. Your theatre critic writes of Ronald McDonald’s
Adventure in Space:
“ Despicable excuse for kids theatre and possibly the most morally
shameless example of product placement EVER. Would you trust your kids
with Ronald McDonald? We hate you Ronald. We REALLY FUCKING hate you,
you dog-burger scoffing pervert."
Any statement in disparagement of goods or their quality is defamatory
if it reflects on the owner or manufacturer in his character as a person
or a trader. Imputations that give most cause for complaint are dishonesty,
carelessness or – as in the case of the sagging soufflé
It would be quite acceptable to lambast the chef for turning out a flat
soufflé but actionable if you suggest that the owners, who claim
to provide classical French cuisine, should choose to employ a chef
who did not, in fact, even know how to make a soufflé, that cornerstone
of the French classical cuisine.
2. The Ronald
Before you reach for the delete button take note that Lord Nicholls
said in the Court of Appeal (Cheng v Paul) that malice in the shape
of spite or ill-will by the writer need not necessarily negate the defence
of Fair Comment.
"Actuation by spite, animosity, intent to injure or other motivation,
whatever it may be, even if the dominant or sole motive, does not of
itself defeat the defence of Fair Comment though it may be evidence
from which a lack of genuine belief (thus making it dishonest) may be
He added: " Critics need no longer be mealy mouthed in denouncing
what they disagree with "provided the objective limits of fair
comment defence were established."
• The issue
was one of public interest,
• The comment was readily recognisable as such and based on
facts which were probably true or protected by privilege,
• The article explicitly indicated what were the relevant facts
• It was a comment which could have been made by an honest person,
no matter how prejudiced or obstinate."
So having said all that, the key issue seems to be whether "reasonable
people generally" would know enough about Ronald McDonald to decide
for themselves if the vehement criticism was justified. This paragraph
neglects to "explicitly indicate" the facts upon which the
rant is based. The reader must be able to make his/her own mind up as
to whether the criticism is justified.
Identity point: McDonalds as a trading corporation
are the obvious target for this rant and they have demonstrated in the
past that they are not averse to suing for libel (the two-year-long
vegans case is the longest libel trial in history) and this paragraph
would certainly lower their trading reputation. But, much nearer to
home, would the actor who portrayed Ronald in this show also have a
The defence of statutory
privilege is an acknowledgement that on certain occasions it is in the
public interest that a person be allowed to speak freely even if, when
doing so, he/she falsely damages another person's reputation.The occasions
on which Privilege exist have been determined by Parliament and are
clearly listed in the 1996 Defamation Act.
Here is the type
of question which explores the defence:
Paisley MP stands up in the House of Commons and names six people he
claims were responsible for a sectarian massacre in Northern Ireland.
a. Explain why he is able to do so without the danger
of an action for defamation.
b. What protection does the reporter in the press gallery
have when he writes his account of Paisley’s allegations?
There are two grades
of Statutory Privilege:
1. Absolute Privilege which gives immunity from an
action for libel even if what was said was motivated by malice.
2. Qualified Privilege which provides the same immunity
from an action for libel when reporting matters of public interest as
long as certain conditions are met.
To understand the difference between the two consider what happened
when Ian Paisley read out a list of names belonging to people he said
were responsible for 10 murders. This accusation was highly defamatory
of those people. If privilege did not exist Paisley would be left with
only the defence of Justification if he were sued. But Paisley was protected
by the Absolute Privilege which attaches to statements made by MPs during
the proceedings of Parliament. This means that he could make defamatory
statements even if the statements were made maliciously. Absolute Privilege
is a complete answer and barrier to any action for defamation. It does
not matter if the words are true or false.
The journalist in
the Press Gallery who was reporting what Paisley said was also protected
by privilege – but of a lesser kind. The reporter’s privilege
has strings attached – it is “qualified” – and
loses the protection of privilege if his report does not conform to
four requirements. The Telegraph editor had to consider the four requirements
before deciding whether or not to use the names which Paisley had read
1. The report has to be fair and accurate.
This means it must be balanced, giving both sides of the issue in
equal measure, and must be factually accurate. If for instance another
MP had stood up after Paisley and said that what Paisley had alleged
was incorrect then that would have had to be included. Equally there
must be no significant factual errors in the story.
2. The report must be published without malice.
Malice in the context of Privilege has a different meaning from malice
in the context of Fair Comment. Here it means ill-will or spite towards
the claimant or any indirect or improper motive in the defendant’s
mind. The purpose of Qualified Privilege is to provide a protection
when the provision of public interest information places the publisher
at risk of being sued. If the publisher’s dominant motive is
not to perform this duty but rather to vent his spite or ill-will
then he cannot use the defence. This would not affect the Telegraph
but it might be relevant, for instance, if a publication set up to
express violent sectarian views of Northern Ireland issues printed
the names of the 10.
3. The report must be on a matter of public concern.
Plainly the Kingsmill massacre was a matter of public concern.
4. The publication of the report must be for the public benefit.
While compiling the story the Telegraph consulted a ‘security
source’ who cast doubts on the allegations made by Paisley.
This led to two sentences in the story:
security source said last night that he recognised only one name,
which he had heard Mr Paisley read out. He added, however, that there
was no evidence that the man had been involved in the Kingsmill massacre.”
addition to taking on board the doubts raised by the security expert,
the Telegraph knew that it must be able to demonstrate that, if they
printed the names, they printed them for the public benefit. It would
not be for the public benefit, for instance, to print the names if there
was a likelihood of reprisal killings. The Telegraph decided not to
print the names.