Social networking, libel and defences

Defamation occurs in two different forms:

*Libel - which is the written form of defamation

*Slander - which is the spoken form of defamation

When a claimant is suing for libel he or she has to show three things

1) the publication is defamatory
2) it refers to him/her – he/she is identified
3) it has been published

DEFAMATION + IDENTIFICATION + PUBLICATION = LIBEL

So, once a journalist publishes an article that defames Mr. X, who is clearly identified in the publication – the journalist has libelled Mr. X and the outcome is that not only the journalist who has written this article, but also everyone else involved (from journalist, to editor, to publisher and so on) is responsible and can be sued.

This means that the claimant does not have to prove that the statement is actually false or any proof of damage – only that the statement tends to discredit and harm the reputation of him/her.

What is defamation then?
• Lowering someone in the estimation of right thinking people
• Cause them to be shunned or avoided
• Disparage them in their business, trade or profession
• Expose them to hatred, ridicule or contempt

Don’t forget that defamation doesn’t only take place in written format – defamation with pictures, juxtaposition, is just as common. It is important that the journalist pays attention to what he/she includes in their publication so that individuals and companies aren’t identified in the wrong context. Also cropping and altering pictures so they change their meaning falls under the defamation category, and this is quite a common problem today with the new technology that people all over the world use to share their pictures over the Internet - see this Facebook case.

Innuendo - a published statement that might seem perfectly innocent for people who does not have special knowledge about the subject published but will be seen defamatory by people with this special knowledge.

But there must surely be some sort of defence?

Justification – this defence applies to the statement of facts and the matter must be proved true ‘on the balance of probabilities’

Fair comment – an honest held opinion that is clearly recognised as an opinion where the subject commented on is in the public’s interest

Absolute privilege – exists under law and statute and to report this the journalist must be fair (balance) and accurate (no substantial inaccuracies)

Qualified privilege – a defence where the material and the facts are thought to be freely known in the public interest (for example police quotes)

Accord and Satisfaction – an apology or a correction that has been accepted by the claimant – no defence just to publish an apology or correction though – the claimant must prove that he/she is satisfied with it

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Further Reading:

What is defamation?

BBC College Defamation

McNae's Essential Law for Journalists Chapter 17-21