In this chapter and the next we consider the main legal danger to journalists

:
defamation. In this chapter we look at what defamation is and what most
defamation laws say you must not do. In the next chapter we consider the
various defences which you might be able to use if you are sued for
defamation; and we see how defamation is punished.

______________________________________________________

Words are very powerful. Journalists use them to inform, entertain and
educate their readers and listeners. Words can be used to expose faults or
abuses in society and to identify people who are to blame.

However, used wrongly or unwisely, they can do harm. Words can misinform
the public and they can hurt people with false accusations. At one stroke
words can destroy a reputation which someone has spent a lifetime building.
So people must be protected from the wrongful use of words.

Most countries do this with the help of laws, the most important of which are
laws of defamation.

There is no need to fear the laws of defamation if you take the time to
understand them and then take care over what you write. Laws of defamation
apply to everyone in society and they exist to protect people from abuse. In
democratic societies they are not there to stop journalists doing their job.

They should not be a problem if you do your job properly by taking care over
how you gather information, how you check that it is true and how you write
accurately, sticking to facts.

What is defamation?

Very simply, defamation is to spread bad reports about someone which could
do them harm.

. Before the mass media became so important. You can defame someone if you write or say something about them which spoils their good reputation.. by . see Chapter 63 Introduction to the law. Today. when people take court action. the laws of defamation say more than that. Laws of defamation vary from society to society. If you write something defamatory.Of course. even those based on English common law. it is not the responsibility of the victim to prove it is false. they are said to sue for defamation. along with your editor. they are called the plaintiff. even the newspaper seller. often by rumour or gossip. many cases of defamation relate to the media. some systems have passed laws (statutes) that truth alone is not a complete defence. In common law. you could be taken to court. And even in common law systems it is the responsibility of the person making the accusation to prove it is true. for example an interviewee. After reading this chapter and the next. It is no defence to claim that you were only quoting someone else. one of the problems with describing how defamation laws can affect you is that they differ from country to country. defamation was usually done by word of mouth.) This is especially so on the issue of truth. You can defame a person by repeating words spoken by someone else. a matter normally has to be false to be defamatory. the person who said the words in the first place . To defame someone. which makes people want to avoid them or which hurts them in their work or their profession. your publisher and printer or your broadcasting authority. If someone complains to the court that you have defamed them. The verb is to defame and the words used are said to be defamatory. This is an important distinction for journalists and we will speak more of it later in this chapter and in the following chapter. Because defamation is usually a civil wrong. As already mentioned. you will need to do some research of your own. However. but it is a good place to start. journalists do not have to make up false things themselves. (For more on common law.

The British Defamation Act was updated in 1996 and since 1952 many countries have passed their own defamation laws. Those countries which gained independence after World War II usually follow the rules laid down in the United Kingdom Defamation Act of 1952. it has become such a specialist area of the law that some lawyers are expert in it. Libel and slander Before we move on. There will probably also be laws of defamation to protect people from false accusations. ^^back to the top A definition of defamation Your country may have laws protecting freedom of speech and publication. These may be part of your Constitution. Find an expert to ask. the defamation laws are based on English law. When broadcasting was introduced. most legal systems decided to treat radio and television like the press and apply the laws of libel to them. the difference between libel and slander was that libel was the written word. These are words for different kinds of defamation. we will use only the single term defamation. libel became the most widespread form of defamation. a word about libel and slander. while slander was the spoken word. even though their words are spoken. Although all lawyers should know something about defamation. For the purposes of these chapters. while others are not.asking local lawyers for advice. . With the development of the press. Your news organisation may have a special lawyer who advises on matters such as defamation. In most Commonwealth countries. Years ago.

they lay down in broad terms what you may not do. and must be done to a person other than the person defamed. gestures or visible representations. you can only see how they work in practice by looking at court cases. ridicule or despise him. signals. you may have to look at court decisions in other countries which have a similar legal system to your own. for general guidance on how laws on defamation are applied. In many developing countries. whether living or dead.Although some defamation laws are clear in theory.if there is any fear in your mind that you might be committing defamation. Although English decisions are not binding in independent countries. One problem with any laws on defamation is that they do not tell you what you may do. very few defamation cases have been taken to court so. or a member of his family. avoid. a basic definition can be found in the British Defamation Act of 1952 which says defamation is: The publication of any false imputation concerning a person. There are three main parts: . Most news organisations have lawyers they can call on for advice. While the laws of defamation even in common law systems vary from country to country. One thing you should always remember . Publication of defamatory matter can be by (a) spoken words or audible sound or (b) words intended to be read by sight or touch or (c) signs. by which (a) the reputation of that person is likely to be injured or (b) he is likely to be injured in his profession or trade or (c) other persons are likely to be induced to shun. they may provide guidance for courts in your country on how to judge allegations of defamation. ask for professional legal advice before publishing. so we shall split it into easy parts and speak about each part in more detail. This is rather a complicated definition.

though it includes broadcasting. If a person thinks that you have defamed them and takes you to court. they have to prove that all three of these things have happened. and must be done to a person other than the person defamed." In simple English.First." This is usually shortened to publication. avoid. Third. gestures or visible representations.." . this covers the identity of the person defamed. ridicule or despise him. by which (a) the reputation of that person is likely to be injured or (b) he is likely to be injured in his profession or trade or (c) other persons are likely to be induced to shun. this means the words that were used. or a member of his family. Second. there is "Publication of defamatory matter can be by (a) spoken words or audible sound or (b) words intended to be read by sight or touch or (c) signs. whether living or dead." In simple terms. there is "concerning a person.. signals. there is "any false imputation ... Let us look at them one by one: ^^back to the top The words "Any false imputation . and their effect.

you might say a man "spent a year living in Bomana.An imputation means suggesting something bad or dishonest about someone. we will stick to words. so the innuendo is that the man was a prisoner. it is possible to defame someone by other methods. this might seem innocent. one is a direct imputation. This statement. Irony is using words to imply the opposite of what they appear to say. is just as defamatory as the two above: . as in the following example about Mr Hevi. as we shall see later. But people from Papua New Guinea know that the country's main prison is at Bomana. Making a joke of an accusation does not prevent it being defamatory. this will be done using words although. if false. You can suggest something directly . Either could be defamatory: DIRECT: Police Minister Mr Grissim Hevi has acted dishonestly while in office.or indirectly. the other indirect. Innuendo is a special meaning behind ordinary words. Words which seem innocent used in one way could have a special meaning in another. such as cartoons. For the moment. Here are two statements. For example. INDIRECT: The Police Ministry is an office for honest men. It is also possible to impute something in a joking manner. Mr Grissim Hevi is obviously in the wrong post." To people outside Papua New Guinea. either by innuendo or by irony. In most cases of defamation.by stating it as a fact .

the imputation is that he is a crook. Although the imputation is normally done through the spoken or written word." The law is there to protect a person's reputation in the community or society. it is the journalist who has to prove the truth of the statement. implying that the newsreader does not believe Mr Hevi's denials. "(a) The reputation of that person is likely to be injured . If your television newsreader finishes a statement from Mr Hevi denying any misconduct. . That could be defamatory. It is the job of the person who made the statement to prove that what was stated or implied was true. that a person is innocent until proven guilty.. a gesture or even a cleverly composed picture." You have to prove it.. and therefore the guilt of the plaintiff. Unless you can. in most English-based legal systems. Police Minister Mr Grissim Hevi would not be a main contender. As mentioned earlier. you can also injure a person through a cartoon. but it is not the job of the injured person to prove that the statement is false. In a defamation case. that too could be defamatory. then looks up to the ceiling in disbelief. If your paper uses a cartoon depicting Mr Hevi secretly stuffing lots of money into his back pocket while looking guilty.If prizes were being given for honesty in office. the court assumes that Mr Hevi is innocent. It is a foundation of English criminal law. It is not good enough for you as a journalist to say in court: "But I know that what I wrote about Mr Hevi is true. the words are defamatory only if the imputation is false. A reputation is the general opinions of his personality and character shared by people in his community or society.

The judge or jury will put themselves in the position of right-thinking members of society generally and to decide the effect the words would have on them. you may write a story about a man who has previously been convicted of assault. Try to imagine an aunt or an uncle you admire. Although courts will not try to make a person seem better than he really is. it is possible to defame someone who already has a bad reputation. It is someone who usually obeys the rules and laws laid down by your society and who would agree with the majority of people about what is good and what is bad. it might actually improve his reputation in a criminal gang or an army unit. the reputation which the law tries to defend has to be one which is held by "right-thinking members of society generally". but it is difficult to imagine a court deciding that the word had damaged his reputation. The courts will judge what kind of reputation the plaintiff actually has. but it would hurt his reputation among right- thinking members of society. If this new allegation is false (or you cannot prove it to be true) he could successfully sue for defamation. For example. To describe a man as "honest" may not be true. On a similar theme. arguing that the little bit of good reputation he had left has now been damaged. . If you called someone "unfeeling". This definition is important because it is quite easy to say bad things about a person which might improve his reputation among certain people. they are probably a "right-thinking member of society". Your new story alleges that he has now stolen money from a church. A false statement is not defamatory unless it discredits the person to whom it refers. It is not easy to define what a right-thinking member of society is. and whether it has been damaged.The law is not there to protect the reputation that he would like to have.

In the following example. ridicule or despise him . claiming that the company's ships were overcrowded and unsafe. the first version is probably safe. avoid. be extremely careful in your use of words. therefore.. the law does not say that the plaintiff must show actual proof of loss of earnings. It is enough that the false statement could have led to a fall in business or the plaintiff losing his job. WRONG: More than 30 protesting sailors claim that shipowners Ron and Wesley Hunglo are trying to kill them in overcrowded and unsafe ships. This does not mean that a journalist should avoid criticising the way in which people do their job.. it also tries to protect their livelihood against damage by false claims. "(c) Other persons are likely to be induced to shun. they can sue for defamation. It is always safest to stick to specific claims and not to generalise about a person's skills or professional conduct. because of a false statement." Where part (a) above deals with a person's reputation. you must be careful exactly how you describe a person's professional faults. far from it." The law not only tries to protect a person's good name or reputation. However. and part (b) deals with . Ask yourself what they would mean to right-thinking members of society generally.. an accountant loses clients or a policeman loses his job.. It is a journalist's duty to expose faults in any area. In fact. "(b) He is likely to be injured in his profession or trade .You must. the second is probably not: RIGHT: More than 30 sailors protested outside the Hunglo Shipping offices. a shopkeeper loses customers. If.

either on a personal or a business level. people show their low opinion by avoiding him. because of what you have written about him. but people will still shun lepers. . The cartoonist who shows a public figure acting as a criminal is in danger. He does not have to prove that everybody reacts in these ways. he will have a much stronger case in court. To shun means to keep away from someone. To make fun of a person can be as dangerous as to accuse him of some wrong-doing. If a person’s reputation was injured by a false statement but he was unaware of it. Of course. If you falsely state that someone has leprosy. In this case. some people are likely to do it. In fact. Once again. and so is the editor who publishes his work. if the plaintiff can prove that. For example. Here there is particular danger for the cartoonist. but you will almost certainly affect the way people behave towards him. ridicule or despise him because of what you wrote. the judge or jury will put themselves in the place of right-thinking members of society and decide whether they would be likely to avoid or shun the plaintiff. because of what you wrote. However. shun. there is no social shame about the way people can catch leprosy (as there is in some countries to AIDS or venereal disease). the plaintiff only has to show that some people avoid. refusing to answer him or laughing at him.his ability to make a living. you may not damage his reputation. then people will tend to avoid or shun them. if a person's reputation (either personal or professional) is damaged. the law does not even demand solid proof that people are avoiding or ridiculing him at all. All it usually demands is that. this section deals with the damage that can be done by changing people's personal behaviour towards the plaintiff. to ridicule means to make fun of someone. you might argue that no damage had been done.

Words which might have been defamatory at one time may later become acceptable." The plaintiff must be able to prove that the words identify him as the person defamed. there are times when they will feel angry enough to sue for defamation. In some countries homosexuality is still illegal and therefore the word "gay" there has negative connotations.000 in damages at London's High Court after false claims about him being gay and a liar were posted on the Facebook social networking website. Today it is more commonly understood to mean homosexual. It is not necessary that he should have been specifically named. Until the late Twentieth Century.. a homosexual). the word "gay" usually meant bright and lively and was used as a compliment. If . they could get angry and sue for defamation. When a case goes to court.likely to shun him Words that change As an added complication. you have to take into account changing standards. and vice versa. Even in countries where homosexuality is legal and widely accepted.Although many public figures who are made fun of in cartoons choose to ignore them..e. the judge or jury will not care whether the word once meant "bright". ^^back to the top Identity "A person . In July 2008. They will judge it on its current use and imputation. a British businessman won a defamation case and £22. if you falsely describe someone as being "gay" (i.

or a member of his family whether living or dead ... the statement: "I know of at least one senior member of cabinet who has made money by pushing contracts to his friends". he will probably have a good case. Although we usually think of "person" as an individual. it is safer to be specific by naming the person." It is usual to defame people by writing or broadcasting about things that they have allegedly said or done themselves.. for example. For example. you have defamed him by injuring his reputation. is clearly defamatory of some cabinet member. instead of aiming your words at one person. but his cabinet colleagues could. Once you lose accuracy and fairness in your story. you are aiming them at a whole group of people. Sometimes you increase the risk because. It is wrong to think that you will be safe by making generalisations. Although the law varies from country to country.. it is possible to defame a group. (Under Australian media law. with occasional exceptions.can sue for defamation if you have harmed their business. the minister concerned may not try to sue you for defamation. common law usually holds that a dead . arguing that people now believe that they are the guilty one.) Loose associations of people. you falsely accuse the Rev Milo Milord of having had sex with prostitutes. a council or a trade union . If your allegations are true. Once you are sure of your facts.he can show the court that a reasonable person would take the words to refer to him. this is only true for non-profit organisations and companies employing 10 or more people. If. you ruin any defence against a possible claim of defamation. generally any group which has a legal identity . are not usually able to sue for defamation. " .such as a company. However. such as people who meet regularly but casually.

there is a small problem. Publication in legal terms means that the words or pictures must have been heard or seen by a third person. In this case. the living relatives can sue for defamation on the grounds that they themselves have been injured. Let us be clear. People may stop coming to his church or may avoid him in the street. children or other living relatives by what you write about him.. However. nor can living relatives on his behalf. the second person is the person being talked or written about (the plaintiff). So you can say what you like about them without the need to prove your statements. If a person is dead. himself a church minister. ^^back to the top Publication "Publication . Marcus. you may be able to harm the reputation of his widow. He would do it to clear his own name. The Rev Milord's son. The first person is the one talking or writing (you). the plaintiff must prove publication.person cannot take legal action. Marcus would take action because he thinks what you said about his father causes him (Marcus) harm. though: Marcus Milord cannot take action on his father's behalf to clear his father's name. could sue for defamation on the grounds that his own reputation has been damaged by what you wrote about his dead father.. the third person is anyone else who may hear or read the offending matter." To be successful in a claim for defamation. . Even though the Rev Milord is now dead. to a person other than the person defamed. the law assumes that no further harm can be done to them.

signals. "(a) By spoken words or audible sounds .There is no civil defamation if the words.. a language for blind people which they read by running their fingertips over raised symbols on a page. the contents of the paper are published to everyone who receives a copy. Some broadcasters may try to deny that they ever said the words complained of. yet end it with a sound which suggests that he doesn't believe them: Police Minister Mr Grissim Hevi today denied that he had been corrupt while in office . however bad or untrue. there is no difficulty in proving this. For example." It is easy to see how words can be defamatory.. must be done to a person other than the person defamed. "(c) Signs. are spoken or written only to the person about whom they are made.." .. gestures or pictures) was communicated to at least one other person.." This applies to print journalists and also to television when captions or parts of text are shown on the screen.. Be warned: a judge will probably order the broadcaster to get a transcript or tape if the case ever comes to court. uhm? "(b) Words intended to be read by sight or touch .. In the case of radio or television. The plaintiff must prove that the imputation (words. gestures or visible representations .. But it is also possible to defame someone with a grunt or other noise.. a tape or transcript of the program is evidence of publication. in the hope that the plaintiff will not have a transcript or tape of the program. a radio newsreader might read out a denial from someone. It also applies to Braille. As the law states: "Publication .." In the case of newspapers.

that is defamation. ^^back to the top A case to answer The plaintiff has a good case if he can prove that: the words were defamatory they referred to him and they were published to a third party. Such a gesture could be defamatory. TO SUMMARISE: Defamation is to spread bad reports about someone which could cause them harm If the plaintiff can prove that the words had a defamatory meaning. that they have a "screw loose" in their brain. identified him and were published. in many societies this suggests that the person you are referring to is mad. or by pulling a face or making a gesture. If you now want to read on. it is possible to defame someone in a drawing or cartoon. If you point your finger at your head making a circular movement. follow this link to the second section. It is enough to show that the words complained of are capable of causing him loss. Chapter 70: . This is the end of the first part of this two-part section on defamation.As we have already mentioned. The plaintiff does not have to prove that he has suffered actual loss.

• Truth – the communication was true. author.S. • Minor errors in reporting. celebrity. such as publishing a person’s age or title inaccurately or providing the wrong address. even if they are untrue and harmful. • Public records are exempt from claims of libel. • Governmental bodies due to the premise that a non-personal entity cannot have intent.a statement of opinion which was arrived at based on accurate facts. This was determined by the U.) are usually exempt. • Statements made about a public person (political candidates. dislike. Supreme Court and has been re- interpreted various times. which do not allege dishonorable motives by the person about whom the statements were made. . governmental officeholder. However. intent and/or desire to harm and with reckless disregard for the truth – the public person may have a cause of action.what you can do. if they were made with malice – with hate. sports hero. etc. ^^back to the top Exclusions/Exceptions/Defenses to ##### defamation: • “fair comment” . movie star.Defamation .