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.
Of course, the laws of defamation say more than that, but it is a good place
to start. The verb is to defame and the words used are said to be defamatory.
You can defame someone if you write or say something about them which
spoils their good reputation, which makes people want to avoid them or
which hurts them in their work or their profession.

Laws of defamation vary from society to society, even those based on English
common law. (For more on common law, see Chapter 63 Introduction to the
law.) This is especially so on the issue of truth. In common law, a matter
normally has to be false to be defamatory. However, some systems have
passed laws (statutes) that truth alone is not a complete defence. And even
in common law systems it is the responsibility of the person making the
accusation to prove it is true; it is not the responsibility of the victim to prove
it is false. This is an important distinction for journalists and we will speak
more of it later in this chapter and in the following chapter.

If someone complains to the court that you have defamed them, they are
called the plaintiff. Because defamation is usually a civil wrong, when people
take court action, they are said to sue for defamation.

Before the mass media became so important, defamation was usually done
by word of mouth, often by rumour or gossip. Today, many cases of
defamation relate to the media.

To defame someone, journalists do not have to make up false things

themselves. You can defame a person by repeating words spoken by
someone else, for example an interviewee. It is no defence to claim that you
were only quoting someone else. If you write something defamatory, you
could be taken to court, along with your editor, your publisher and printer or
your broadcasting authority, the person who said the words in the first
place ... even the newspaper seller.

As already mentioned, one of the problems with describing how defamation

laws can affect you is that they differ from country to country. After reading
this chapter and the next, you will need to do some research of your own, by
asking local lawyers for advice.

Although all lawyers should know something about defamation, it has

become such a specialist area of the law that some lawyers are expert in it,
while others are not. Find an expert to ask. Your news organisation may have
a special lawyer who advises on matters such as defamation.

Libel and slander

Before we move on, a word about libel and slander. These are words for
different kinds of defamation. Years ago, the difference between libel and
slander was that libel was the written word, while slander was the spoken
word.

With the development of the press, libel became the most widespread form of
defamation. When broadcasting was introduced, most legal systems decided
to treat radio and television like the press and apply the laws of libel to them,
even though their words are spoken. For the purposes of these chapters, we
will use only the single term defamation.

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A definition of defamation

Your country may have laws protecting freedom of speech and publication.
These may be part of your Constitution. There will probably also be laws of
defamation to protect people from false accusations. In most Commonwealth
countries, the defamation laws are based on English law. Those countries
which gained independence after World War II usually follow the rules laid
down in the United Kingdom Defamation Act of 1952. The British Defamation
Act was updated in 1996 and since 1952 many countries have passed their
own defamation laws.
Although some defamation laws are clear in theory, you can only see how
they work in practice by looking at court cases. In many developing countries,
very few defamation cases have been taken to court so, for general guidance
on how laws on defamation are applied, you may have to look at court
decisions in other countries which have a similar legal system to your own.
Although English decisions are not binding in independent countries, they
may provide guidance for courts in your country on how to judge allegations
of defamation.

One thing you should always remember - if there is any fear in your mind that
you might be committing defamation, ask for professional legal advice before
publishing. Most news organisations have lawyers they can call on for advice.

One problem with any laws on defamation is that they do not tell you what
you may do; they lay down in broad terms what you may not do.

While the laws of defamation even in common law systems vary from country
to country, 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, or a member of

his family, whether living or dead, 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, avoid, ridicule or despise
him.

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, signals,
gestures or visible representations, and must be done to a person other than
the person defamed.

This is rather a complicated definition, so we shall split it into easy parts and
speak about each part in more detail. There are three main parts:
First, there is "any false imputation ... 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, avoid, ridicule or
despise him."

In simple English, this means the words that were used, and their effect.

Second, there is "concerning a person, or a member of his family, whether

living or dead."

In simple terms, this covers the identity of the person defamed.

Third, 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, signals, gestures or visible representations, and must be done to a
person other than the person defamed."

This is usually shortened to publication, 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.

Let us look at them one by one:

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The words

"Any false imputation ..."

An imputation means suggesting something bad or dishonest about
someone. In most cases of defamation, this will be done using words
although, as we shall see later, it is possible to defame someone by other
methods, such as cartoons. For the moment, we will stick to words.

You can suggest something directly - by stating it as a fact - or indirectly,

either by innuendo or by irony. Innuendo is a special meaning behind ordinary
words. Words which seem innocent used in one way could have a special
meaning in another.

For example, you might say a man "spent a year living in Bomana." To people
outside Papua New Guinea, this might seem innocent. But people from Papua
New Guinea know that the country's main prison is at Bomana, so the
innuendo is that the man was a prisoner.

Irony is using words to imply the opposite of what they appear to say, as in
the following example about Mr Hevi.

Here are two statements; one is a direct imputation, the other indirect. Either
could be defamatory:

DIRECT:

Police Minister Mr Grissim Hevi has acted dishonestly while in office.

INDIRECT:

The Police Ministry is an office for honest men. Mr Grissim Hevi is obviously in
the wrong post.

It is also possible to impute something in a joking manner. Making a joke of

an accusation does not prevent it being defamatory. This statement, if false,
is just as defamatory as the two above:
If prizes were being given for honesty in office, Police Minister Mr Grissim Hevi
would not be a main contender.

As mentioned earlier, in most English-based legal systems, the words are

defamatory only if the imputation is false, but it is not the job of the injured
person to prove that the statement is false. It is the job of the person who
made the statement to prove that what was stated or implied was true.

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." You have to prove it. Unless you can, the
court assumes that Mr Hevi is innocent.

It is a foundation of English criminal law, that a person is innocent until

proven guilty. In a defamation case, it is the journalist who has to prove the
truth of the statement, and therefore the guilt of the plaintiff.

Although the imputation is normally done through the spoken or written word,
you can also injure a person through a cartoon, a gesture or even a cleverly
composed picture.

If your paper uses a cartoon depicting Mr Hevi secretly stuffing lots of money
into his back pocket while looking guilty, the imputation is that he is a crook.
That could be defamatory.

If your television newsreader finishes a statement from Mr Hevi denying any

misconduct, then looks up to the ceiling in disbelief, that too could be
defamatory, implying that the newsreader does not believe Mr Hevi's denials.

"(a) The reputation of that person is likely to be injured ..."

The law is there to protect a person's reputation in the community or society.

A reputation is the general opinions of his personality and character shared
by people in his community or society.
The law is not there to protect the reputation that he would like to have. The
courts will judge what kind of reputation the plaintiff actually has, and
whether it has been damaged. 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.

For example, you may write a story about a man who has previously been
convicted of assault. Your new story alleges that he has now stolen money
from a church. If this new allegation is false (or you cannot prove it to be
true) he could successfully sue for defamation, arguing that the little bit of
good reputation he had left has now been damaged.

A false statement is not defamatory unless it discredits the person to whom it

refers. To describe a man as "honest" may not be true, but it is difficult to
imagine a court deciding that the word had damaged his reputation.

On a similar theme, the reputation which the law tries to defend has to be
one which is held by "right-thinking members of society generally". It is not
easy to define what a right-thinking member of society is. 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. Try to
imagine an aunt or an uncle you admire; they are probably a "right-thinking
member of society".

This definition is important because it is quite easy to say bad things about a
person which might improve his reputation among certain people. If you
called someone "unfeeling", it might actually improve his reputation in a
criminal gang or an army unit, but it would hurt his reputation among right-
thinking members of 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 must, therefore, be extremely careful in your use of words. Ask yourself
what they would mean to right-thinking members of society generally.

"(b) He is likely to be injured in his profession or trade ..."

The law not only tries to protect a person's good name or reputation, it also
tries to protect their livelihood against damage by false claims. If, because of
a false statement, a shopkeeper loses customers, an accountant loses clients
or a policeman loses his job, they can sue for defamation.

In fact, 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.

This does not mean that a journalist should avoid criticising the way in which
people do their job; far from it. It is a journalist's duty to expose faults in any
area. However, you must be careful exactly how you describe a person's
professional faults.

It is always safest to stick to specific claims and not to generalise about a

person's skills or professional conduct. In the following example, the first
version is probably safe, the second is probably not:

RIGHT:

More than 30 sailors protested outside the Hunglo Shipping offices, claiming
that the company's ships were overcrowded and unsafe. WRONG:

More than 30 protesting sailors claim that shipowners Ron and Wesley Hunglo
are trying to kill them in overcrowded and unsafe ships.

"(c) Other persons are likely to be induced to shun, avoid, ridicule or despise
him ..."

Where part (a) above deals with a person's reputation, and part (b) deals with
his ability to make a living, this section deals with the damage that can be
done by changing people's personal behaviour towards the plaintiff. To shun
means to keep away from someone; to ridicule means to make fun of
someone.

Of course, if a person's reputation (either personal or professional) is

damaged, then people will tend to avoid or shun them, either on a personal
or a business level.

If a persons reputation was injured by a false statement but he was unaware

of it, you might argue that no damage had been done. However, if the
plaintiff can prove that, because of what you have written about him, people
show their low opinion by avoiding him, refusing to answer him or laughing at
him, he will have a much stronger case in court.

In this case, the plaintiff only has to show that some people avoid, shun,
ridicule or despise him because of what you wrote. He does not have to prove
that everybody reacts in these ways.

In fact, the law does not even demand solid proof that people are avoiding or
ridiculing him at all. All it usually demands is that, because of what you wrote,
some people are likely to do it. Once again, 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.

For example, there is no social shame about the way people can catch
leprosy (as there is in some countries to AIDS or venereal disease), but
people will still shun lepers. If you falsely state that someone has leprosy, you
may not damage his reputation, but you will almost certainly affect the way
people behave towards him.

To make fun of a person can be as dangerous as to accuse him of some

wrong-doing. Here there is particular danger for the cartoonist. The cartoonist
who shows a public figure acting as a criminal is in danger, and so is the
editor who publishes his work.
Although many public figures who are made fun of in cartoons choose to
ignore them, there are times when they will feel angry enough to sue for
defamation.likely to shun him

Words that change

As an added complication, you have to take into account changing standards.

Words which might have been defamatory at one time may later become
acceptable, and vice versa. Until the late Twentieth Century, the word "gay"
usually meant bright and lively and was used as a compliment. Today it is
more commonly understood to mean homosexual.

In some countries homosexuality is still illegal and therefore the word "gay"
there has negative connotations. Even in countries where homosexuality is
legal and widely accepted, if you falsely describe someone as being "gay"
(i.e. a homosexual), they could get angry and sue for defamation. When a
case goes to court, the judge or jury will not care whether the word once
meant "bright". They will judge it on its current use and imputation.

In July 2008, a British businessman won a defamation case and 22,000 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.

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Identity

"A person ..."

The plaintiff must be able to prove that the words identify him as the person
defamed. It is not necessary that he should have been specifically named. If
he can show the court that a reasonable person would take the words to refer
to him, he will probably have a good case.

It is wrong to think that you will be safe by making generalisations.

Sometimes you increase the risk because, instead of aiming your words at
one person, you are aiming them at a whole group of people.

For example, the statement: "I know of at least one senior member of cabinet
who has made money by pushing contracts to his friends", is clearly
defamatory of some cabinet member. If your allegations are true, the minister
concerned may not try to sue you for defamation, but his cabinet colleagues
could, arguing that people now believe that they are the guilty one.

Once you are sure of your facts, it is safer to be specific by naming the
person. Once you lose accuracy and fairness in your story, you ruin any
defence against a possible claim of defamation.

Although we usually think of "person" as an individual, it is possible to

defame a group. Although the law varies from country to country, generally
any group which has a legal identity - such as a company, a council or a trade
union - can sue for defamation if you have harmed their business. (Under
Australian media law, this is only true for non-profit organisations and
companies employing 10 or more people.) Loose associations of people, such
as people who meet regularly but casually, are not usually able to sue for
defamation.

" ... or a member of his family whether living or dead ..."

It is usual to defame people by writing or broadcasting about things that they

have allegedly said or done themselves. If, for example, you falsely accuse
the Rev Milo Milord of having had sex with prostitutes, you have defamed him
by injuring his reputation.

However, with occasional exceptions, common law usually holds that a dead
person cannot take legal action, nor can living relatives on his behalf. If a
person is dead, the law assumes that no further harm can be done to them.
So you can say what you like about them without the need to prove your
statements.

However, there is a small problem. Even though the Rev Milord is now dead,
you may be able to harm the reputation of his widow, children or other living
relatives by what you write about him. In this case, the living relatives can
sue for defamation on the grounds that they themselves have been injured.

The Rev Milord's son, Marcus, himself a church minister, could sue for
defamation on the grounds that his own reputation has been damaged by
what you wrote about his dead father. People may stop coming to his church
or may avoid him in the street.

Let us be clear, though: Marcus Milord cannot take action on his father's
behalf to clear his father's name; Marcus would take action because he thinks
what you said about his father causes him (Marcus) harm. He would do it to
clear his own name.

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Publication

"Publication ... to a person other than the person defamed."

To be successful in a claim for defamation, the plaintiff must prove

publication. Publication in legal terms means that the words or pictures must
have been heard or seen by a third person. The first person is the one talking
or writing (you), the second person is the person being talked or written
about (the plaintiff), the third person is anyone else who may hear or read the
offending matter.
There is no civil defamation if the words, however bad or untrue, are spoken
or written only to the person about whom they are made.

The plaintiff must prove that the imputation (words, gestures or pictures) was
communicated to at least one other person. As the law states: "Publication ...
must be done to a person other than the person defamed."

In the case of newspapers, there is no difficulty in proving this; the contents

of the paper are published to everyone who receives a copy. In the case of
radio or television, a tape or transcript of the program is evidence of
publication. Some broadcasters may try to deny that they ever said the words
complained of, in the hope that the plaintiff will not have a transcript or tape
of the program. Be warned: a judge will probably order the broadcaster to get
a transcript or tape if the case ever comes to court.

"(a) By spoken words or audible sounds ..."

It is easy to see how words can be defamatory. But it is also possible to

defame someone with a grunt or other noise. For example, a radio
newsreader might read out a denial from someone, 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 ... uhm?

"(b) Words intended to be read by sight or touch ..."

This applies to print journalists and also to television when captions or parts
of text are shown on the screen. It also applies to Braille, a language for blind
people which they read by running their fingertips over raised symbols on a
page.

"(c) Signs, signals, gestures or visible representations ..."

As we have already mentioned, it is possible to defame someone in a drawing
or cartoon, or by pulling a face or making a gesture. If you point your finger
at your head making a circular movement, in many societies this suggests
that the person you are referring to is mad, that they have a "screw loose" in
their brain. Such a gesture could be defamatory.

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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.

The plaintiff does not have to prove that he has suffered actual loss. It is
enough to show that the words complained of are capable of causing him
loss.

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, identified
him and were published, that is defamation.

This is the end of the first part of this two-part section on defamation. If you
now want to read on, follow this link to the second section, Chapter 70:
Defamation - what you can do.

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Exclusions/Exceptions/Defenses to
#####

defamation:

fair comment - a statement of opinion which was arrived at based on

accurate facts, which do not allege dishonorable motives by the person about
whom the statements were made.

Statements made about a public person (political candidates,

governmental officeholder, movie star, author, celebrity, sports hero, etc.) are
usually exempt, even if they are untrue and harmful. However, if they were
made with malice with hate, dislike, intent and/or desire to harm and with
reckless disregard for the truth the public person may have a cause of
action. This was determined by the U.S. Supreme Court and has been re-
interpreted various times.

Minor errors in reporting, such as publishing a persons age or title

inaccurately or providing the wrong address.

Governmental bodies due to the premise that a non-personal entity

cannot have intent.

Public records are exempt from claims of libel.

Truth the communication was true.