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welcome to Newsdesk's free overview of the rules of libel.
and the right of reply
to make amends
1996 Defamation Act
Libel is the publication of a statement which exposes a
Hatred, ridicule or contempt
or which causes him to be
shunned or avoided
or which has a tendency to injure him in his
office, trade or profession
in the estimation of right-thinking members of society
Libel is all about words that damage a person's
in the eyes of reasonable people.
The first question when you consider a libel action: "Is
what I have written basically true?
If it is not true in substance and in fact then you will be
deprived of the two classic defences:
* Justification - you are justified in damaging a
reputation because what you are saying is true.
* Fair Comment - the comment complained of has to be
based firmly on fact.
The other great defence is Privilege - the
recognition by the state that sometimes a person's
reputation must be allowed to be wrongly defamed in the
greater interests of free speech and open justice.
Until recently Privilege, as far as the Press was concerned,
was largely confined to foreseeable occasions
where the need for free speech is paramount. These
occasions are listed in the 1996 Defamation Act.
In 1999 a judgment of the House of Lords in the case of
Reynolds v Times Newspapers afforded the Press the chance to
gain Privilege outside those occasions for public
interest stories about events which no one could possibly
Most libels occur through carelessness or ignorance or the
Press going out on a limb with a story that is not 100 per
If the journalists and their lawyers do their jobs properly
there should be little danger. It is when assumptions are
made or people get careless that the writs start to fly.
AND BLOOMERS THAT LEAD TO WRITS
"It's not us saying it - we're just quoting him."
One of the most common causes of libel actions is repeating
statements made by people you interview and not being able
to prove the truth of what they told you. In the early 90s
newspapers had to pay damages to the Birmingham Six after
they quoted former members of the West Midlands police as
saying: "In our eyes their guilt is beyond doubt."
"We're only denying a rumour." It is dangerous to
repeat a defamatory rumour in any circumstances unless the
newspaper is in a position to prove it is true. It is even
dangerous to repeat the rumour for the bona fide purposes of
"We gave a fair show to both sides." Not enough - you
still printed a libelous statement even if you let the
person give his side of the affair.. The only safe way is
not to print the libel unless you can prove it is true.
People add 2+2 and make 5: Example: An IRA
terrorist blows himself up on a bus. Another badly injured
Irishman is lifted from the wreckage and rushed to hospital
and placed in a small ward guarded by armed detectives. The
police give the press those bare facts. The press draw
conclusions and report:
"Bus bomber under police guard. IRA man dies and accomplice
The unfortunate Irishman had nothing at all to do with the
bomber. He was totally innocent. He sued a number of papers
before he died.
Careless Adjectives: Rumours had been circulating
that 'tycoon' Owen Oyston was being investigated by the
police. A junior reporter, having listened to the gossip,
wrote the caption: Disgraced tycoon
Owen Oyston. At that time Oyston did not have a stain on his
character. He had never been officially 'disgraced'. He sued
and the paper settled out of court. Shortly afterwards
Oyston went down for six years for sex offences. The paper
can't get its money back - it's the person's reputation at
the time of publication that matters.
One assumption that used to be wrong but now has a
grain of truth to it because of the Reynolds case: "It's in
the public interest." (Details later)
Libel is all about words.
When weighing up a story think of words as
Words must be taken in the context in which they are
The test of what the words mean is the test of the
reasonable man - not the meaning intended by the person who
wrote the words
Example: Radio City in Liverpool were sued for
calling a travel agent a con-man.
They said it meant the agent deceived "some at least of his
The travel agent said the words meant he was habitually
dishonest or cynical.
Radio City produced 19 witnesses who said they had had lousy
holidays. The travel agent produced 21 who said their
holidays were fine. The travel agent won £350,000
damages plus costs.
Stage One: The literal meaning. Be careful not to
rely solely on proving the defamatory description was
literally true. If you call a man a thief in
screaming headlines and his conviction was for stealing a
packet of biscuits a couple of years ago you could be in
trouble. The words have to be commensurate with the offence.
A Liar has to be a serial liar, a mega-liar, not a fibber
like you or me. Beware of raking up a long buried
past which may suggest that a stain on the person's
character still exists. What is at stake is the person's
reputation today and not the reputation he has since lived
down as in the case of John Profumo.
Stage Two: The inference a reasonable person would
draw from the word.
Example: 'Tory boss Archer pays off vice girl.'
Literally true and the News of the World could prove it. But
they couldn't prove the inference that Archer had had a
sexual relationship with the prostitute. It cost the paper
Stage Three: Innuendo the words may not be defamatory
to everyone but they are to a smaller group of people who
are aware of additional facts or circumstances.
Example: To say Mr Smith is a socialist is not
obviously defamatory but if readers know that he is member
of the Conservative Party it might be defamatory because it
imputes he is politically dishonest.
To win a case for libel the plaintiff must prove:
1. The words complained of are defamatory.
2. The words complained of refer to him.
3. The words complained of have been published to a third
The test for identity: "Are the words such as would
reasonably lead persons
acquainted with the plaintiff to believe that he was the
person referred to."
"We're safe if we don't name them."
Not always. All a claimant has to demonstrate to the
court is that his family and friends understood the
offending article to refer to him. Therefore if , say, you
allege that an unnamed police constable, aged 30, working
out of the town's central police station, had mistreated a
prisoner in the cells, there is the chance of all the
constables in their 30s at the station suing. During the
1980s and 90s the Police Federation made good use of this
aspect of libel law.
The more detailed the description the better. Get the
constable named in an official police statement - that way
it's privileged. (see Privilege later)
The law allows groups of people, rather than
individuals, to sue as a body but the courts keep the
numbers as low as possible.
Example: If you wrote "All lawyers are crooks" then
plainly all the members of the legal profession could not
sue because the reasonable man would know that many lawyers
could not be crooks. But when a former policeman alleged
that he had been forced out of a police dog-handling team
because of anti-semitism, all 12 members of the team sued
for libel and won. Watch out for similar small groups like
trustees, school governors, etc.
(we are justified in printing this because it is true)
When a case comes to court the law starts with the
presumption that the words complained of in the newspaper
are false. It is up to the newspaper to prove they are true.
It has always been a complete answer for a civil action for
defamation to prove that the words complained of are true in
substance and in fact.
The plea of justification must be broad enough to cover
every libelous imputation in the statements. Where the words
complained of give rise to an inferential meaning ( as in
Archer above) it is not sufficient to prove they are
Justification is theoretically the simplest form of defence
but at the same time it is certainly the most dangerous. An
unsuccessful plea of justification could increase the
The jury is entitled to take into account in assessing the
damages everything that takes place right up to the moment
when they retire to consider the verdict and compensate the
plaintiff - not only for the actual defamation but for the
insult to him , with all the attendant publicity of the
newspaper arguing in court that what they wrote was
Getting just a bit of it wrong.
The position of a defendant faced with justifying
several distinct charges is eased to some extent by the
Defamation Act which says you do not necessarily have to
prove them all.
If, for instance, you call a man a murderer, rapist,
arsonist, thief and liar and can prove the first four
but not the fifth then the defence is probably OK because
wrongly adding the label liar to a man you can prove
to be a murderer, rapist, arsonist and thief is hardly
likely to damage his reputation.
One drawback with this defence is that it is the plaintiff
can cherry pick. In the example above he may choose to sue
only on the allegation that he is a liar. The
newspaper would not then be free to advance evidence about
him being a murderer and so on.
(the facts are true and the comment on those facts is
Fair comment defends opinions which by their nature
cannot be true or false.
To be covered by the defence of Fair Comment these opinions
1. Based on fact
2. In good faith
3. Without malice
4. On a matter of public concern
a. You may accurately report what some public person has
done and then say: "Such conduct is disgraceful" or
b. Without reporting what the man has done identify
the conduct with a reference the reader can understand.
The important thing is that you enable your readers to judge
for themselves how far your opinion is well founded.
There are two exceptions
1. Where the comment is based on privileged
material such as a report of a court case and the facts
mentioned in the report later turn out to be untrue.
2. A plea of Fair Comment will not fail because of some
unimportant inaccuracy in the facts on which the opinion
is based - a wrong date or place or a slight
misrepresentation of an incident.
2. Good Faith: The defence will not succeed unless
the jury is satisfied that the comment is one that an
honest-minded man could make on the facts.
The one question that does not have to be answered is
whether the comment is fair in the generally accepted sense
of reasonable, just or moderate.
The test is: "Would any honest man, however prejudiced he
may be, however exaggerated or obstinate his views, have
said what this criticism has said? Is the comment relevant
to the facts"?
The jury may think the comment is entirely wrong but if
they are satisfied it is honest the defence will work.
What then would be classed as dishonest? One example was
the judge's assessment of comments made by the controversial
historian David Irving.
The judge said Irving was ..." motivated by a desire to
present events in a manner consistent with his own
ideological beliefs even if that involved distortion and
manipulation of historical evidence."
3. No malice: Evidence of lack of honesty on the part of
the newspaper is called express malice - spite or ill
will or some other wrong or improper motive. Apart from a
history of ill-will the best evidence of express malice is
that the newspaper knew that some of the facts upon which
the comment was based were untrue. (But now see Malice in
Statutory Privilege notes below)
(Readers Letters: If the paper prints a letter and
both the letter writer and the paper are sued both may plead
fair comment but the letter writer's defence may fail
because of malice. The question of whether the writer's
malice carries on to the newspaper has not been definitely
resolved - but the indications are that the newspaper would
not lose the defence because of malice.)
4. Public Interest: The person about whom the newspaper
is passing an opinion must be in the public arena - he could
be a local councillor, a sports star, a government minister,
a judge, a local chef, an author, a newspaper editor etc etc
- anyone who has placed himself or herself in the public
The private conduct of such people is off-limits unless it
has a bearing on their ability or qualifications for public
office (for example Jonathan Aitken or MPs taking cash or
People who are not in the public arena, who hold no public
office and have done nothing to bring themselves into the
public eye are off-limits - for example, a lottery winner
who has asked that he be kept anonymous but has been
unveiled by the Press and labelled Scrooge in a story that
he refused to give money to charity.
Fair Comment Update
The libel action by Richard Branson against journalist
Tom Bowers has resulted in a major change in the law
affecting Fair Comment. For the first time an allegation
concerning the state of a person's mind can be defended as a
Bowers wrote of Richard Branson: " Sceptics will
inevitably whisper that Branson's motive (for his bid for
the national lottery) is self glorification".
Branson claimed that this imputation of his motive was
one of fact rather than comment and was untrue.
Previously it had long been held that defamatory
statements concerning a person's motivation could only be
defended by proving that the imputation was true, something
that Bowers plainly could not do.
But the Court of Appeal held that Bower's statement could
be defended by Fair Comment since it was " something which
is or can reasonably be inferred to be a deduction,
inference, conclusion, criticism, remark or
Judges now will be able to rule whether words are capable
of being comment (the jury decides if they are).
Fair Comment Update 2.
NO NEED TO BE MEALY-MOUTHED
Lord Nichols said in the Court of Appeal (Cheng v Paul)
that malice in the shape of spite or ill-will by the writer
need not 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
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
The defence of Privilege is an acknowledgement that on
certain occasions it is necessary that a person be allowed
to speak freely even if, when doing so, he falsely damages
another person's reputation.
The occasions on which Privilege exist have been
determined by Parliament (Statutory Privilege) or, over the
years, by judicial precedents (Common Law Privilege)
There are two grades of Statutory
1. Absolute Privilege which gives absolute immunity
from an action for libel even if what was said was motivated
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.
These conditions for qualified privilege are
that the reports must be:
* Fair and accurate
* Published without malice
* On a matter of public concern
* And the publication must be for the public benefit -
this is important. An MP can stand up in Parliament
and, under the protection of Absolute privilege, label a
man a killer. He cannot be sued for libel even if he
knows, and it can be demonstrated that he knows, that he
is making a false accusation. The reporter in the Press
Gallery, however, has only qualified privilege for his
report of what the MP said. If he checked the allegation
and found that it was wrong and went ahead and printed it
then he would lose the defence because it would plainly
not be for the public benefit to label an innocent man a
murderer even if the actual murder was a matter of public
Explanatory note on Malice: In an action
for libel being defended by a plea of qualified privilege
the plaintiff is the one who has to prove there was malice
behind the publication.
An example of the defence of qualified privilege being
defeated by malice was seen in the case of the Newcastle
council nursery workers who were suspended and sacked
following allegations of child abuse.
They were later acquitted at Newcastle Crown Court after the
judge said there was no evidence upon which a reasonable
jury would convict.
Newcastle Council was unhappy with this verdict and set up
an independent review team to investigate what had happened
at the nursery. The review team was told it could not make
any findings on matters which had been dealt with by the
But the resulting report three years later was a public
pronouncement on the guilt of the nursery nurses, Chris
Lillie and Dawn Reed. Hundreds of copies of the report were
published and received massive publicity in the local
Lillie and Reed sued the council and the Newcastle Evening
Chronicle for libel. The council and the newspaper pleaded
truth and qualified privilege in their defence.
The libel judge had concluded the allegations of child abuse
were not true so the only realistic defence open to the
council and review team was qualified privilege for a report
by a team appointed by a local authority to hold a local
Qualified privilege can only be defeated by malice which is
notoriously difficult for claimants to prove. Malice is
established where it is shown that the defendant had no
honest belief in the statement or was indifferent to its
truth or falsity.
The qualified privilege succeeded for the council but not
for the review team.
The libel trial judge decided that the team's conclusions
were based on 'gossip' and prejudice' and noted that they
had included in their report a number of fundamental claims
which they must have known to be untrue and could not be
explained on the basis of incompetence or mere carelessness.
This met the malice test.
The review team was ordered to pay £200, 000 to both
Lillie and Reed, the highest level of damages permitted for
Parliament has listed the occasions when anything
said can be safely reported under the protection of
qualified privilege. The two area of statutory privilege
which most affect journalists are those covering the
reporting of courts and the reporting of various
These are the main changes in those areas introduced by the
1996 Defamation Act:
A fair and accurate report, published contemporaneously of
UK court proceedings held in public attracts Absolute
privilege and is immune from an action for libel.
This not only applies to UK courts but also certain other
European courts and international tribunals listed in S3 of
the '96 Act.
Qualified privilege now extends to fair and accurate
reports of proceedings of any court (or legislature)
anywhere else in the world.
Fair and accurate: If the report is unfair or
inaccurate it forfeits both Absolute or Qualified
Example: In 1993 The Sunday Sport paid substantial out
of court damages to a police officer who had been found
not guilty of indecent assault.
The paper had reported the opening statement by the
prosecution and the main evidence of the alleged victim but
did not include her cross-examination by the defence which
began the same day. During the cross-examination the alleged
victim made a number of admissions which weakened the
evidence she had given earlier and which the paper had
reported. The Sunday Sport then briefly reported the
policeman's acquittal. They should also have reported the
admissions which effectively negated much of the adverse
publicity the policeman had received.
Contemporaneous: If the court report is not published
contemporaneously - roughly the next reasonably available
edition of the paper - it loses Absolute privilege but is
still protected by Satutory Qualified privilege if all the
conditions attaching to that defence are met.
The 1996 Defamation Act lists the various occasions
which are covered by Qualified Privilege and divides them
into two categories..
In Category One there is no requirement to give a right of
reply to a person who has been defamed. In Category Two
Reports which remain privileged without the need to allow
the person defamed to explain or contradict the contents of
Fair and accurate reports of proceedings in public
* A legislature anywhere in the world
* A court anywhere in the world
* A public inquiry by a government or legislature
anywhere in the world
* Proceedings anywhere in the world of an international
organisation or an international conference.
Fair and accurate copies or extracts of written
* A copy or extract from any register or other
document required by law to be open to public
* A notice or advertisement published on the authority of
a court, or of a judge or official of a court, anywhere
in the world.
* A copy or extract or extract from matter published on
the authority of a government or legislature anywhere in
* A copy or extract from matter published anywhere in the
world by an international organisation or an
Reports which remain privileged subject to a right of
Written matter: A fair and accurate copy of or
extract from a notice or other matter issued for the
information of the public by:
* a legislature in any member state of the
European Union or the European Parliament
* The government of any member state of the EU or any
authority performing governmental functions in any member
state or part of a member state or the European
Commission. ('Governmental functions' embraces, for
instance, an officer of state, chief officer of police,
* An international organisation or international
* A court in any member state or the European Court of
Justice or by a judge or officer of any such court.
Reports of the entire Proceedings of:
* Any lawful public meeting
( a public meeting is defined as a meeting, in good
faith and lawfully held for lawful purposes and for the
furtherance or discussion of any matter of public concern
whether admission to the meeting is general or
* Any meeting of county council or district council
committees or sub committees (not parish councils)
* Magistrates acting otherwise than a court exercising
judicial authority (eg. a licensing bench)
* Any commission, tribunal, committee or person
conducting an inquiry authorised by an Act of Parliament,
by the Crown or by a minister of the Crown.
* A person authorised by a local authority to hold a
* Any other tribunal, board, committee or body authorised
by an Act of Parliament as long as the public and Press
are not denied admission.
* General meeting of any company or association
constituted, registered or certified by or under an Act
of Parliament or incorporated by Royal Charter - not
being a private company as defined by the Companies Act
Reports of the findings or decisions only of
any of the following associations or any of their committees
or governing bodies:
* A UK ( or EU member state) association which
promotes or encourages exercise in or interest in any:
Art, Charity, Science, Religion, or Learning.
* A UK ( or EU member state) association which
promotes or safeguards the interests of any: Trade,
Business, Industry or Profession
* A UK ( or EU member state) association which
promotes or safeguards the interest of any Game,
Sport, Pastime, to the playing of which members of the
public are invited or admitted.
NB. In all cases the association must be empowered by
its constitution to exercise control over its members and
to adjudicate on the conduct of its members and on
matters of concern to the association
Press Conferences: A House of Lords ruling means
that a press conference and the written press release which
might be distributed at the press conference (even if not
read out) are protected by qualified privilege on the basis
that they are public meetings as defined by the 1996
Defamation Act. Take care, though, that the press conference
is 'lawfully held, for a lawful purpose' as the Act
QUALIFIED PRIVILEGE AS APPLIED TO FOREIGN
"ANYWHERE IN THE WORLD"
These categories do NOT require a right of
Fair and accurate reports of PROCEEDINGS IN PUBLIC of any
LEGISLATURE - (Just the same as reporting debates in UK
Parliament or reporting evidence given to select committees
but would not extend to lobby briefings or anything of that
sort because they are not proceedings to which the public is
COURT - (criminal and civil at any level.)
PUBLIC INQUIRY - (as long as the person conducting the
inquiry has been appointed by a government or a
INTERNATIONAL ORGANISATION OR CONFERENCE - (The United
Nations is an obvious on-going example. Amnesty
International's annual meeting....a World Health
Organisation conference.... that kind of thing.)
NOTICE OR ADVERTISEMENT published on the authority of a
court, or of a judge or court official.
A fair and accurate copy or extracts from:
MATTER PUBLISHED ON THE AUTHORITY OF A GOVERNMENT OR
(This could be something dramatic like the FBI's OE10
Most Wanted' More mundanely it covers the myriad reports
issued by governments every day.)
MATTER PUBLISHED BY AN INTERNATIONAL ORGANISATION OR
CONFERENCE. (Back to the UN, Amnesty International, W.H.O.
EUROPEAN UNION MEMBER STATES
The following categories are subject to a right of
E.U. MEMBER STATES
Belgium, Germany, France, Italy, Luxembourg, The
Netherlands, Denmark, Ireland, UK., Greece, Spain, Portugal,
Austria, Finland, Sweden, Cyprus, Czech Republic, Estonia,
Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic,
Fair and accurate reports of THE ENTIRE PROCEEDINGS of:
ANY LAWFUL PUBLIC MEETING - this has to be a meeting
lawfully held for a lawful purpose, and for the furtherance
or discussion of a matter of public concern. (A meeting at
which speakers urged people to burn down the houses of
alleged paedophiles would not be covered because it was
called to encourage something unlawful.)
A GENERAL MEETING OF A PUBLIC COMPANY formed under the
law of a member state.
REPORTS OF THE FINDINGS OR DECISIONS ONLY of the
following type of associations or of any committee or
governing body of such an association.
1. The 'findings or decisions' could be a one-line
sentence or 100 pages of why the association decided to take
a certain decision: the important distinction is that
privilege does not attach to the actual proceedings which
led to the finding or decision but only to the authorised
statement issued afterwards.
2. What links all the associations is that they must be
empowered by their constitutions to:
A. exercise control over or adjudicate on matters of
concern to the association eg the Football Association
changing the offside rule and B. exercise control on the
actions of any person subject to such control , eg the
Football Association banning a player for taking drugs.
* An association formed to promote or encourage interest
ART ,SCIENCE, RELIGION, LEARNING.
An association formed to promote or safeguard the
interests of any:
TRADE, BUSINESS, INDUSTRY, PROFESSION
An association formed to promote or safeguard the
interests of any:
GAME, SPORT, PASTIME, to the playing of which the public
are invited or admitted.
An association formed to promote:
CHARITABLE OBJECTS or other OBJECTS BENEFICIAL TO THE
A fair and accurate copy of or extract from a notice or
other matter issued
for the information of the public by:
A LEGISLATURE in any member state or the European
THE GOVERNMENT of any member state or
ANY AUTHORITY PERFORMING GOVERNMENTAL FUNCTIONS in any
member state or the
( 'Performing governmental functions' is a very wide
area. It certainly covers a statement by a chief officer
police, an officer of state, the chief executive of a
local authority etc)
AN INTERNATIONAL ORGANISATION OR INTERNATIONAL
A COURT in any member state or the European Court of
Justice or by a judge or officer of any such court.
A fair and accurate copy or extract from any document
circulated to members of a PUBLIC COMPANY:
* by or with the authority of the board of directors
* or by the auditors of the company.
* or which related to the appointment, resignation,
retirement or dismissal of directors of the company.
NB: The defence of Qualified Privilege can lost if you fail
to give the aggrieved person a right to explain or
contradict the allegations made in the piece. This does NOT
mean that you have to give his side of things in the
original story. It means that subsequently you have to give
him a reasonable right of reply if he asks for one. If you
refuse to do so you lose the defence if he sues for libel.
The occasions of privilege listed under " anywhere in the
world' do NOT require a right of reply. Those listed under
EU member states DO.
( or the 'Public Interest' or ' The Reynolds'
While Parliament periodically reviews the ' public interest
' occasions which it feels necessary to list in Defamation
Acts as protected by Qualified Privilege there are other
public interest issues which are just as important but which
could never be anticipated. Some newspaper investigations
contain allegations which journalists might not necessarily
be able to prove but which should be revealed in the public
interest. In these cases Common Law qualified privilege
could be their only defence against a writ for libel.
To understand the concept of common law privilege think
of a character reference.
The man who asks for it has a serious interest in
finding out the truth about the man to whom he's about to
offer a job.
The man who has to write the reference has a duty to
tell the truth about the applicant, warts and all.
If, when writing that reference, he defames the applicant's
reputation he would, without privilege, be vulnerable to an
action for libel. But, if he writes the reference without
malice, he is immune because of the privilege afforded by
the Common Law.
Common Law privilege is based on the principle that a
person who has a moral, legal or social duty to inform
another person about a third party should be able to write
freely without the fear of a writ for defamation hanging
over every word.
Historically, the principle was difficult to extend to
First there was the issue of whether newspapers had a moral,
legal or social duty to inform readers of matters of public
Second, did each and every reader of the newspaper have a
corresponding duty or interest in receiving the information?
Was the story of such concern to each individual reader that
a wrongful allegation about a person whose life or conduct
might never affect them should be protected by
The 1999 landmark decision of the House of Lords in
Reynolds v Times Newspapers clarified the
The Law Lords decided that, in certain circumstances:
* The media did have a DUTY to impart information to its
* There was certain information that the public at large had
a legitimate INTEREST in receiving.
The Law Lords laid down the criteria by which a judge
presiding over a libel trial would decide whether the story
was protected by common law privilege. So, if a newspaper
prints an allegation against a person which is untrue and
the newspaper is sued and pleads qualified privilege as a
defence, the court will take into account the following
before granting or withholding the defence of qualified
1. The seriousness of the allegation. The more
serious the charge the more the public was misinformed
and the individual harmed if the allegation was not true.
The better the journalism, the more chance of
getting the defence.
2. The nature of the information and the extent to
which the subject matter was a matter of public
3. The source of the information. Some informants had
no direct knowledge of the events. Some had their own
axes to grind or were being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation might
already have been the subject of an investigation which
6. The urgency of the matter. News was often a
7. Whether comment was sought from the plaintiff. He
might have information others did not possess or had not
disclosed. An approach to the plaintiff would not always
8. Whether the article contained the gist of the
plaintiff's side of the story.
9. The tone of the article. A newspaper could raise
queries or call for an investigation. It need not adopt
allegations as statements of fact.
10. The circumstances of the publication, including
Lord Nichols, giving the leading judgment in Reynolds
said a paper's unwillingness to reveal its sources
should not be held against it when it claimed privilege.
"Above all," he said, " the court should have
particular regard to the importance of freedom of
expression. The press discharges vital functions as a
bloodhound as well as a watchdog.
"The court should be slow to conclude that a publication
was not in the public interest and therefore the public
had no right to know, especially when the information is
in the field of political discussion.
"Any lingering doubts should be resolved in favour of
An example of the way in which judges apply the Reynolds'
criteria is contained in the Court of Appeal's judgement
when The Sun appealed against a High Court libel victory by
the former Liverpool goalkeeper Bruce Grobelaar who had been
accused by the paper of throwing matches.
The Court accepted the Sun's claim that the High Court
jury's verdict was perverse and stripped Grobbelaar of the
£85,000 he had been awarded.
But it rejected the Sun's second point that the paper's
coverage, anyway, was entitled to the protection of
qualified privilege following Reynolds.
The paper's handling of the Grobbelaar story, said one
law lord in the Court of Appeal , was a sustained and
mocking campaign of vilification.
Whether or not a newspaper report gets qualified
privilege under Reynolds is based on an assessment of
specific considerations relating to the way in which the
paper covered the story.
Lord Justice Simon Brown said there was much to criticise
about the the tone of the stories (Reynolds: A newspaper
could raise queries or call for an investigation. It need
not adopt allegations as statements of fact) and the
circumstances of the publication..
" Here we are concerned not with a single article but
with massive and relentless coverage of the story over seven
separate daily issues of the Sun, generally spread across
several pages and under prominent headlines," he said.
" Moreover, so far from these publications "raising
questions or calling for an investigation", they asserted Mr
Grobbelaar's guilt in the most unequivocal of terms: he was,
the Sun proclaimed, a self-confessed cheat, who "must never
be allowed to play again".
"Certain aspects of the coverage demonstrably went beyond
what Mr Grobbelaar had in fact admitted on tape.
"By its headline reading 'I let in three goals and picked
up £40,000', the Sun was plainly implying that those
goals had been deliberately let in whereas Mr Grobbelaar's
actual admission was that he had selected the Newcastle
match to be lost ' because I knew ... there's fuck all
chance of winning at Newcastle.'
" Other features of the coverage calculated to add
credence to the central allegation of corrupt match-fixing
were unsupported even by Mr Vincent's evidence.
" These included a banner headline 'Grob the liar does a
flyer' implying that Mr Grobbelaar was at Gatwick with a
view to evading justice rather than to play in an
" And the claim that Mr Vincent was a "close friend" who
"was appalled at [Mr Grobbelaar's] corruption", and
had "decided to speak out for the sake of the keeper's loyal
fans", rather than a paid informant in vengeful mood against
Mr Grobbelaar for having brought him to penury."
Lord Justice Brown said there was much to criticise about
the publications in question and those responsible for
"The language used was in the highest degree emotive:
'The ultimate betrayal'; 'He fouled the field of dreams';
'Secret code of Mr Fix-it'; 'Shame will haunt Grob for the
rest of his life'.
" These are just a sample of the many headlines used in this
sustained and mocking campaign of vilification. Having
paraded Mr Grobbelaar's guilt, the Sun revelled in his
"There was in addition a lamentable involvement of his
family. Whilst he was being confronted at Gatwick, other Sun
reporters repeatedly knocked on the door of the family home
where his wife and children were, asking for her comments
and taking photographs.
" Another headline read: 'Shameful secret has Deb in
tears.' Furthermore, in one of the editions complained of,
the Sun's published questions to Mr Grobbelaar included:
"How much of what's been happening have you told the
children about? Have they been getting a hard time at
" The articles, in short, were calculated to embarrass not
only Mr Grobbelaar but also his wife and children.
"There can be no doubt that considered as a whole this
newspaper campaign carried prejudgment of guilt to its
" It is difficult to dispute the criticism that the Sun took
upon themselves the roles of the police, prosecuting
authority, judge and jury.
" Can a succession of defamatory publications of this
nature attract the defence of qualified privilege? How is
the balance to be struck?
" The ultimate question, of course, is whether the
general public was entitled to receive the information
contained in these publications irrespective of whether in
the end it proved to be true or false.
" Who, in other words, is to bear the risk that
allegations of this sort, convincing though no doubt they
appear to the newspaper when published, may finally turn out
to be false?
" To my mind there can be only one answer to these
questions. If newspapers choose to publish exposés of
this character, unambiguously asserting the criminal guilt
of those they investigate, they must do so at their own
" Given the obvious commercial benefits attending this
style of journalism - the editor here ordered an increase in
the Sun's print run in advance of its Grobbelaar exclusive -
and the substantially reduced level of damages awards now
recoverable under modern libel law, it seems to me absurd to
suggest that the Sun will be discouraged from pursuing its
investigatory role unless protected by qualified
" On the contrary, the protection of publications of this
nature would in my judgment give rise to the altogether
greater risk that newspaper investigations would become less
thorough, and their exposés more sensational, (even)
than at present.
" Recognising though I do that we "should be slow to
conclude that a publication was not in the public interest
and, therefore, the public had no right to know, [and
that] any lingering doubts should be resolved in favour
of publication" (as per Lord Nicholls in Reynolds), I reach
the clear conclusion that these publications judged in the
round should not be held protected by qualified privilege. I
have, indeed, no "lingering doubts" whatever.
" Obviously the defence would have applied had the Sun
merely passed on their information to the police and the
" I would regard it as applying, too, had the Sun chosen
instead to publish a restrained piece couched in the
language of suspicion and allegation rather than, as here,
an unqualified assertion of guilt.
" With regard to these publications, however, I would
unhesitatingly rule that the defence is unavailable."
Update: Geraldine Proudler, a lawyer who acts
for The Guardian, analysed the way in which the courts
had so far applied the Reynolds factors. Of six cases only
two papers had been granted qualified privilege after the
courts, in effect, had examined the quality and seriousness
of the journalism behind the offending stories.
Ms Proudler's conclusions
1. The tone of the article is crucial - if the journalist
represents serious allegations as being facts this will
almost certainly cause a qualified privilege defence to
2. It is very important to give the individual a proper
opportunity to comment on the allegations and then report
fully what he says - however far-fetched his explanation
3. In a public interest case, qualified privilege can
provide a defence when the journalist has got his facts
wrong but ONLY when he properly applies the Reynolds
Alastair Brett, the Legal Manager for Times
Newspapers, provided a checklist for how the media
could bring a public interest story within the Reynolds
They must be able to demonstrate that:
1. The subject matter is of genuine public interest or
2. It has done its best to seek a response/comment from
the person attacked in the piece
3. The source of its information is honest, reliable and
knowledgeable i.e not driven by malice.
4. It has taken appropriate steps to verify the
5. It has adopted a suitable tone in the piece i.e
calling for a proper investigation rather than adopting what
we have been told as gospel.
In practical terms this means
a. We must set the scene and flag up the public interest
point (i.e exposing a crime, protection of public health and
safety, misleading statements and/or hypocrisy by those in
public office etc)
b. The article should not be written from a first-person
point of view but rather... " The Manchester Evening News
has learnt that there are serious concerns surrounding..."
with a finishing call for a further or fuller investigation
into the matters/allegations contained in the article.
c. We should not include material which is pure rumour
and suspicion and for which there is no basis of any kind
other than pure conjecture.
d. Most importantly we must be able to say we made every
effort to get a full response from the claimant and
e. We must obtain all or any supporting documents
(particularly from confidential sources) prior to
publication of the article.
1. Is the story unambiguous and clear in its meaning? Are
you saying precisely what you mean to say?
2. Can you prove what you have said is true? e.g
Is it actual "fraud" or really "financial
Did he really "lie" or was he making an innocent
Was it actual "corruption" or an "unusual payment"
possibly involving "financial irregularities"/
3. Is there a hidden or inferential meaning?
e.g the vicar was seen at 6 Shepherd's Market (a well
4. If no one is named, is someone still identifiable (and
therefore able to sue)?
e.g a number of people will know the claimant is the
person referred to.
5. Have we interviewed the subject of the story?
It is essential to get the subject's reaction to the
AND THE RIGHT OF REPLY
If a person is attacked in the columns of a newspaper he is
entitled to have his reply published in that newspaper and,
as far as he is concerned, that reply is
But if the person goes further than necessary to defend his
own reputation and uses the occasion to attack his adversary
he will lose the protection or at least provide evidence
that he is actuated by malice. His reply must be relevant to
the charge he professes to answer.
The newspaper could be privileged in three ways:
1. Privilege derived from the person defending his
reputation through its columns.
2. Privilege deriving from the 'right of reply' provisions
of the Defamation Act 1996. (see later)
3. Privilege deriving from the 'duty' and 'interest'
principle. The paper owes a duty (a) to the person who has
been attacked in its columns and (b) to its readers who have
a corresponding interest in receiving the person's
This barrier to a court action for libel is afforded by
Sections 2-4 of the 1996 Defamation Act.
It is specifically designed to settle the matter without
going to court. Any or all of the following might be
included in a settlement.
* Suitable correction
* Sufficient apology
* Publish correction and apology in a manner that is
reasonable and practicable in the circumstances.
* Pay to the aggrieved party such compensation (if any) and
such costs as may be agreed or determined to be payable
NB. The offer to make amends must be in writing and
expressed as an offer under the terms of S2. The court can
be called in to decide on any differences which arise
between the parties.
This in fact would mean that the court, for example, could
decide where the apology should go in the paper and how
prominently it should be displayed.
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 incompetence.The
imputation of improper motives is a common libel risk.
In the case of Walker Wingsails Systems v Yachting
World the magazine contrasted the manufacturer's
striking claims for a yacht's performance with those
achieved by the journalist who test-sailed her. The article
also revealed that the company's claims of impressive sales
'deals' were in fact returnable deposits rather than firm
The manufacturer sued and said the article meant he had
deliberately misled the public by his publicity
His wife, the sales director said that effectively the
article called her husband and herself 'charlatans and
Yachting World claimed Fair Comment and denied the article
meant the manufacturer had been dishonest but maintained the
firm had made its claims carelessly and irresponsibly. They
Lesson: The fact on which comment is based must be
correct. In the Yachting World case the manufacturer claimed
the magazine, when making its criticisms, had failed to
point out that the boat when tested by the magazine was far
heavier than it had been when the manufacturer's performance
claims were originally made and, in addition, its bottom had
become badly fouled.
Fair comment also fails if the plaintiff can show that the
defendant was motivated by malice. This did not necessarily
involve telling lies. If someone publishes defamatory
material by way of comment recklessly, without considering
or caring whether it be true or false, then they are treated
as if he or she knew it was false - ergo:no fair
Which? always sends the factual results of its tests to the
manufacturers but never the comments they are to make about
Justification a good defence in consumerism but be
careful you have the facts straight. Bovril, the meat
extract company, collected damages when a book said the
product contained sugar. The statement (which was incorrect)
implied the company was lying when stating the contents of
One of the aims of the Act was to make libel actions more
accessible to the public. Libel still remains the only civil
action for which you cannot get Legal Aid but if plaintiffs
are willing to accept damages of
£10,000 or less they can take advantage of the new
'fast track' procedure. This, of course, makes newspapers
much more liable to be sued.
S8-10: New summary procedure
The summary procedure under Ss 8-10 of the Act aims to
assist the ordinary litigant by controlling and reducing the
role of the jury without abolishing it - thus making libel
more predictable, more accessible and quicker and cheaper
for the ordinary litigant.
In a suitable case a plaintiff wanting a quick apology and
modest damages will not be forced to incur huge legal costs
in getting them.
Claims will be dealt with without a jury.
The court may dismiss plaintiff's case summarily if
satisfied it has no reasonable prospect of success and there
is no reason why it should be tried.
Equally, Court may give judgment for the plaintiff if
satisfied there is no defence which has a realistic chance
Summary relief consists of any or all of the following:
* Declaration that the statement was false and
* Order to publish suitable correction and apology
* Damages not exceeding £10,000
* Injunction restraining further publication
Newspapers can be sued for articles on their web sites as
well as in the paper itself. Each 'hit' is a new publication
of a defamatory statement. It is, therefore, essential to
remove an offending statement from the electronic archive as
quickly as possible.
If, afterwards, an offer of amends is made under S2 of
the Defamation Act 1996 it may be useful for your lawyers to
insert something on the lines of the following draft
paragraphs in their Offer of Amends letter:
"In addition to the above we will of course notify
various licensed data bases of the error/damaging section in
the article and ask that this be deleted in its entirety/the
relevant paragraph/sentence be deleted from the story.
Exactly the same will happen to the article as it appeared
on our website - the on-line edition of the newspaper.
"Should your client want us to write to any named
individuals or companies to say that the article was wrong
and how we have apologised; to your client, we are of course
happy to do so. Please could you let us have any such list
of people/companies as soon as possible".
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 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
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