Newsdesk Law revision: libel


*1. A quick reminder of the basic rules of libel

2. A series of questions and examples to show how the rules apply


A children’s 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?

Marcus 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?

Fair Comment – 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.


Common Law 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 interest.

Below is how the 10-point Reynolds defence could be applied to the care home story.
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 gold dust.
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 particular case.


Other points to consider

Marcus Bent 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.

S12 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 satisfied:
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.

Interviewing 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
unnecessary intrusion.
ii) A child under 16 must not be interviewed or photographed on issues
involving their own or another child’s welfare unless a custodial parent or
similarly responsible adult consents.
iii) Pupils must not be approached or photographed at school without the
permission of the school authorities.
iv) Minors must not be paid for material involving children’s welfare, nor
parents or guardians for material about their children or wards, unless it
is clearly in the child’s interest.
v) Editors must not use the fame, notoriety or position of a parent or guardian.

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 to:

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 paramount
interest of the child.


Honest Comment
(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?

1. 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."

1. The sad soufflé
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 - incompetence.
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 rant
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 inferred."
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."
That is:

• 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 and
• 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 case?

Statutory Privilege

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:

Ian 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 out.

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:

“A 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.”
In 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.



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