The key to libel, and to avoiding legal action, is the ability to differentiate between FACT and COMMENT. Learning this skill is absolutely vital.
C.P Scott said “Comment is cheap, fact is priceless.” This may apply value to each word, but not meaning, so here is an attempt at simple definition:
COMMENT: Comment is cheap because it can come from anywhere and is not verifiable. The only information it offers is some insight into what was going on in the mind of the author; it tells us nothing of the world. It is nothing more than opinion.
FACT: Fact, on the other hand, is a statement which is independently verifiable. It is something that can be confirmed by a trusted means and as such can be considered to be a truth.
The ease with which journalist can obtain comment rather than fact is proportional to the ease with which a prospector can obtain pebbles rather than gold. Comment can be entertaining, but is virtually worthless. Facts, like gold in a stream, are difficult to obtain; carrying this out effectively is the role of a journalist.
The difficulty arises when the journalist delivers information as a statement of fact when it is not verifiable, particularly when a statement is defamatory, which is another word which requires explaining:
In common law, everybody has a default right, or tort, to his or her reputation. Note that this refers to the reputation you have, not the one you’d like to have. Defamation is the act damaging of this reputation. It can be defined as something which:
Exposes someone to ridicule or contempt
Causes them to be shunned or avoided
Discredits them in their trade
Generally lowers them in they eyes of right thinking members of society.
So, if someone is defamed they have the right to claim under libel law for the damage done by the people responsible. But who decides whether or not a statement has resulted in any the above criteria? A jury of your peers. And who can put a monetary figure on that damage? A judge. Generally, any settlement should reflect the extent of the damage and any loss of earnings resulting from that damage. Some people will try, often successfully, to convince a court that their reputation is worth a great deal of money. For example, Dr. Joe Rahmin won £1million in damages after allegations on Channel 4 News/ITN that he was no good at his job.
I mentioned libel, something else which needs clear definition. It consists of three things:
Defamation- a reputation has been damaged
Publication- made available to a third party.
Identification – An individual has been identified. Note broad-brush identification, which is defining a small group from which individuals could be singled out and therefore defamed, and jigsaw identification, ie. contributing a piece of information which, while not enough to indentify someone by itself, could be pieced together with information from other sources in order to do so.
It follows that many things said or written by journalists are defamatory, so it is imperative that we understand not only how we can get ourselves into trouble, but also how we can get ourselves out of it. Or better yet avoid it altogether.
There are three big defences against libel. A journalist can say something defamatory provided one of these three things can be applied to it:
JUSTIFICATION- “It’s true and we can prove it.” Be aware that “it’s true,” isn’t enough, you must be able to prove it in court. This brings us back to fact. It must be independently verifiable. If it’s true and you can prove it, you have libel defence. Be careful of disappearing witnesses; your case will fall apart if your “proof” decides not to speak in court. Note also that prostitutes are rarely believed in court, so they should not be considered to be a reliable or trusted source.
COMMENT- Comment is opinion which, as they are worthless as sources of information, cannot be considered defamatory as long as it’s clear that it is comment and not statement of fact. Note also that it must be based on fact and must be in the public interest or it is malice. A way to ensure this is to keep the comment fair and balanced.
QUALIFIED PRIVILEGE- McNae’s 20th Edition says, on p.340, “Qualified privilege is available as a defence where it is considered important that the facts should be freely known in the public interest.” This is rather subjective and so should be backed up with justification if possible. McNae’s notes a case brought against the BBC over a report in which the wife of a health service manager was defamed. The information was found as not being in the public interest and so was not privileged. This would have been libel if the BBC were not able to prove that the defamatory statements were true. The BBC won.
In addition, we have consent and comedy. If you can prove that you have someone’s consent to write something about them, you’re quite safe from a libel charge as a result of making that statement. As for comedy, if something is clearly intended to be a joke it is legally protected from libel. Cartoons, for example, are always comment.
Something for which there is no defence is MALICE. Malice is publishing something which you know to be untrue. This is an unforgiveable offence in journalism. If someone can prove that you published or broadcast something in the knowledge that it is false, you cannot even enter a plea. Note that innuendo is also malice. Note that malice has a slightly different meaning in the realm of qualified privilege (McNae’s p.341); here, the word describes to writings of a journalist who does not have the public interest in mind and/or bears ill will or spite towards the claimant.
So to libel someone accidentally (eg. By not checking facts) would be like accidentally running them over in your car as they crossed the road. Very bad and likely to land you in trouble. But to libel someone deliberately (eg. Lies, malice) would be like driving up on the pavement and putting your foot down.
So journalism is like panning for gold; you have a big dish (the world) full of pebbles (comment) and mud (lies), and the journalist has the task of finding little flakes of gold (facts) and delivering them to a buyer (the public). The buyer likes gold most of all, but will accept the occasional pebble, provided you point at them, one by one, and say, “These here are pebbles”. But if you hand the buyer a bag of mud and pebbles and try to convince him you’re giving him gold, then you’re likely to get a bash on the head. Simple really.
Britain is famed for having the most aggressive libel laws in the universe, and this tends to be seen as the scourge of the journalism sea. But let’s turn this on its head for a moment: We should all treasure our right to the reputation we build for ourselves and the right to claim compensation from anyone who, through malice or negligence, damages that reputation. Perhaps, as journalists, we should view our libel laws as a device which helps us to maintain our integrity and prevents our craft from spoiling its own reputation. Sort of like a gruff but well-meaning old shepherd.
With a giant stick.
With a nail in it.