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NCTJ media law notes
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Some lecture notes on the main media law issues in the NCTJ media law exam.
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Law , ethics and regulationLecture 2 – defamation 2
Defences
If you are sued for libel, you need a defence
- Truth defence and honest opinion defence (S2 DA 2013 AND S3)
- Public interest defence (S4 DA 2013)
- Privilege – absolute and qualified (S13 AND 14 DA 1996)
- Amends
Truth defence
The published material complained of is substantially true.
Applies to statements of fact and not opinon.
Requires proof – only what you can prove in court
Standard of proof – on the balance of probabilities – enough to persuade a judge.
Must be proven to be more likely to be true than not.
Difficult to use.
May need witnesses, may need to rely on what courts believes innuendos or inferences to
mean.
Might need recordings , documents , records from official sources.
Is it worth it? Would you risk high damages and costs?
Many media organisations will not risk it , they will agree a settlement.
Settlement – a payment/amicable agreement between the parties to avoid a court case.
(Rory McIlroy case).
If there is more than one defamatory statement, only the most damaging needs to be
proved true - called the sting. Eg Robert Dee v Telegraph Media Group Ltd 2010 (worst
tennis player in the world), Guardian/Jonathan Aitken case.
Honest opinion defence
Covers comment pieces- reviews, columns – articles that are clearly opinion pieces
Does not cover factual statements and cant be used to defend news stories.
It does cover comment about court cases, such as criticism of judges’ decisions.
It is a relatively easy defence to use as long as the defamatory material is opinion.
Used a defence for strong criticism by columnists like Katie Hopkins and Jan Moir.
For the honest opinion defence to stand :
-the published content must be the honestly held opinion of the person making it
- It must be recognisable as opinion rather than fact
- it must be based on provably true or privileged material.
- must be explicitly or implicitly indicate the fact or information on which it is based.
(the defence will fail is a claimant can show the person expressing the opinion did not in fact
hold that opinion or, if it was by another author, that the publisher should have knwn that
author did not hold the opinion.
, Privilege
Common law (bill of rights 1689 – freedom of speech) – individuals have privilege where
there is a legal, social or moral duty to pass on defamatory information about someone.
Also covered in statute – defamation ac 1996 , sections 14 and 15 – the DA 2013 did not
change much.
Absolute privilege – who has it?
- MPs and peers (Lords) speaking in Parliamentary proceedings (Caroline Lucas/Peter
Hain) NOT REPORTERS
- Welsh Assembly members in National Assembly for Wales proceedings
- Journalists reporting court cases and inquests held in public in the UK
- Journalists reporting court cases held anywhere in the world
- Journalists reporting inquiries held under Inquiries Act 2005 and courts martial
AP protects a fair and accurate report of judicial proceedings held in public within the UK ,
published contemporaneously.
How to be fair and accurate:
- Present both sides of the case (or the case continues…)
- Avoid substantial mistakes
- Avoid giving disproportionate weight to one side of a case or the other
- In a trial make it clear when defendants deny charges (pleas NG)
- Write accurate quotes and properly attribute them
- Headlines need quotes to make it clear statements were said in court.
Contemporaneous – as soon as practicable
Ie. After a case that would be the first issue of a daily newspaper/same day reporting for
boradcasters.
If not reported contemporaneously court reports have qualified privilege.
AP is for reports of court proceedings only, not before, after , in corridor etc and no
background matter.
Outbursts from public gallery are not covered by privilege unless said by someone who is a
part of the proceedings , such as a witness, so if defamatory it could result in a law suit.
Qualified privilege –
Protects media reports (schedule 1 of defamation act 1996) that are:
- Fair
- Accurate
- Published without malice
- On a matter of public interest and
You may have to offer right of reply if asked by someone you have libelled.
Schedule 1 of DA 1996:
Part 1:
- Includes non-contemporaneous reports of court cases, parliamentary debats held in
public and matter published by them, public enquries.
Part 2:
- Includes press conferences, press releases , public meetings , council meetings,
tribunals, findings of disciplinary bodies of organisations like the FA.
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