| Defamation and other risks | 8 |
LIES, DAMNED LIES AND DEFAMATION
Every publication which contains statements of fact or opinion runs the risk that some of them may be untrue, or unjustified. However hard authors and editors try, a certain number of inaccuracies will always slip through the net and get published. Some will not matter very much, or will simply look unfortunate. Some, more serious, mis-statements may raise allegations of negligence, and we will look at negligent mis-statement below (p. 225). There is a particular category of untruth, however, which publishers would be well advised to avoid at all costs, and that is any untrue statement which might be taken to impugn a person’s reputation. In essence, this is what defamation is.
It is not necessarily illegal to publish untruths about someone: English law has considerable sympathy for the concepts of free speech and freedom of the press. These are now enshrined in the Human Rights Act 1998 which gives everyone the right to freedom of expression. However, at the same time, the law also seeks to protect citizens from the publication of false allegations which may harm their reputation. It is not always easy to balance these opposing needs. There usually comes a point, however, where a critical or disparaging comment becomes a recognisably more serious allegation of fact, or of unsupported opinion: at that point, if it or the facts on which it is based is untrue, the law may intervene and decide that it becomes libellous.
Since the Defamation Act 2013 has come into force, there is no longer a presumption of a jury trial in defamation cases. Instead, a defamation case will be heard (and damages assessed) by a judge, unless the court orders otherwise. In Yeo v. Times Newspapers, the Times’ application for a trial by jury was rejected, with the court stating that trial by jury for libel and slander would be the exception rather than the rule. Thus, it seems that jury trials are a thing of the past for defamation cases.
By removing the presumption of a jury trial, it is thought that this will go some way to achieving more predictable results in defamation cases. Jury cases are inevitably more costly, take longer, and have the potential to be unclear or misunderstood. By contrast, without a jury, courts can make early determinations on issues such as meaning and serious harm, which inevitably saves time and cost.
Juries were often known to award extremely high levels of damages to claimants, though the court was able to reduce such awards following the 1995 case of John v. MGN Ltd, in which the court reduced an award of damages to Elton John from £350,000 to £75,000). The removal of the jury system will therefore come as welcome relief to many defendants.
There are two types of damages in defamation cases – general damages and special damages. The purpose of an award of ‘general damages’ by the court is to cover the following:
• Vindication – to show to the world at large that the allegations were false;
• Compensation for damage to reputation; and
• Compensation for injury to feelings (e.g. pain, suffering, humiliation and embarrassment). However, damages under this head cannot be recovered by corporate claimants (as companies do not have feelings).
Guidance from the court in the 1996 case of Jones v. Pollard and Others indicates that a defamation claimant should never recover damages for injury to reputation greater than that of the maximum award for a personal injury claim. The court stated that it was difficult to imagine any defamation action where even the most severe damage to reputation, accompanied by maximum aggravation, would be comparable to physical injuries such as quadriplegia, total blindness and deafness, where top of the range awards were £130,000 (now about £200,000). The highest award made, at the time of writing, is £250,000. Some examples of awards for damages are set out below.
In the case of Tardios v. Linton from July 2015, the High Court made awards of £70,000 to a school headteacher and damages of £25,000 to the company that owned the school after a parent of a pupil at the school defamed the reputations of both on the Internet. The defendant had launched an online petition calling for the resignation of the headteacher, accusing her of unacceptable treatment and bullying of the children in her care and of causing them psychological and mental harm. When assessing the damages, the court considered the school’s positive record in previous years, the fact that the allegations were entirely false and clearly defamatory, and the high level of seriousness of the words complained of. In deciding the amount due for injury to feeling of the headteacher, the court took into account the extreme distress caused to the claimant. The court also mentioned the defendant’s refusal to admit her identity as an aggravating factor.
In October 2014, in the case of ReachLocal UK Ltd v. Bennett, special damages of £241,945 were awarded by the High Court to an online marketing and advertising company which had been defamed by a rival. This represented loss of advertising revenue from customers, which amounted to over £300,000. The court held that the allegations were very serious and went to the heart of the claimant’s business credibility. They noted that the defamatory comments seemed to readers to have been made for ethical reasons, whereas in reality they were designed to enable the defendants to steal the claimant’s customers. General damages of £75,000 were also awarded by way of vindication.
In another High Court case in 2014 – Garcia v. Associated Newspapers Ltd – damages of £45,000 were awarded to a doctor in respect of a newspaper article. The article alleged that a language barrier had caused the Spanish doctor to misunderstand a patient’s report of his alcohol consumption, and that he had wrongly reported the patient to the DVLA, with the result that the patient lost his driving licence and job.
While the level of general damages is effectively capped by the court, the financial risks can still be considerable. The losing party will frequently have to pay the winning party’s legal costs if the matter proceeds to trial, which are often substantial (usually running into hundreds of thousands of pounds or more). We look at the important issue of legal costs below (p. 221).
If a successful claimant has suffered actual financial loss, which they are able to prove, then he or she may be able to recover ‘special damages’ in addition to an award of general damages. The claimant must, however, prove that the loss was suffered as a result of the defamatory publication and also that it was a reasonably foreseeable consequence of the publication. In 2004, the court struck out a special damages claim for £230 million pounds. Collins Stewart Limited, a stockbroker, sued for libel on an article published by the Financial Times. It claimed the meaning of the allegations was that they were guilty of gross impropriety in the way in which they carried on business, and had committed or acquiesced in serious criminal offences, in particular insider dealing. Collins Stewart sought special damages on the basis that the share price of the parent company had fallen relative to comparative companies but the court decided that this measure was too uncertain to be accepted as a legal basis on which to found a claim for special damages.
Any statement in a book or journal or newspaper, or any other published matter (an advertisement, e-mail or website, blog, message board for example), runs the risk of being defamatory if it contains an untrue allegation or imputation which has caused or is likely to cause serious harm to the reputation of another. All of the following elements must be present, before a statement can be libellous:
• It must have been published (or in the case of slander, spoken) to a third party.
• It must be understood to refer to the person complaining about it.
• The allegation must bear a defamatory meaning.
• The allegation must have caused or be likely to cause serious harm to the reputation of the claimant.
We shall look at each of these categories in turn. But first, a distinguishing note about libel and slander.
Broadly speaking, libel is defamation in written or permanent form (such as a book or newspaper): slander uses the more transitory medium of spoken words and gestures. Traditionally, printed libel was felt to have a more serious long-term effect on a person’s reputation than words spoken during an argument or at a public meeting. Spoken words might be forgotten, but words you had printed would still be there the next morning.
As a result, there is a distinction between libel and slander: in an action for slander, claimants must normally provide evidence that they have incurred a specific quantifiable loss. The only exceptions are:
• accusations of a crime punishable by imprisonment; and
• imputations on a person’s ability to carry on an office, business or profession, or on the reputation or credit of a trader.
In addition, because slander is a form of defamation, a claimant in a slander claim must also prove all the elements required for a defamation claim. In particular, this means that serious harm must be shown for a slander claim (see below). For corporate bodies this means serious financial loss, so in reality there is not much of a distinction between slander and libel since the Defamation Act 2013.
Technology has rendered this distinction between libel and slander increasingly out of date. The printed word is no longer the only permanent medium capable of inflicting damage, and words spoken on radio and TV, and via cable services and satellite broadcasts, are all now specifically treated as libels (since the Broadcasting Act 1990). Accessible or retrievable messages delivered via a computer network – such as the Internet – are also now regarded as libels ‘permanent’ enough for damage to be assumed. This is also true of e-mail as well as bulletin boards.
A claimant must prove that the statement has caused or is likely to cause serious harm to the claimant’s reputation. It is not enough to show that the statement had caused or was likely to cause serious distress or injury to feelings. In the 2014 case of Cooke v. MGN, the court gave guidance as to what constituted ‘serious harm’. The case involved a claim brought by a private housing association and its chief executive against publishers of The Mirror for references to them in an article which alleged that a landlord was profiting from letting poor quality properties to tenants on benefits. It was held that the general rule is that the claimant must bring evidence of serious harm. However, it was not always necessary to have actual evidence in every case, as some statements were so obviously likely to cause serious harm to a person’s reputation that the likelihood could be inferred (where, for example, the allegation was of a person being a terrorist or a paedophile, made in a national newspaper). The court also held that the nature and effect of any subsequent apology was a factor to be considered in assessing whether such serious harm was likely to be caused. In this case, there was found to be no evidence of serious harm, nor could it be inferred.
In the subsequent case of Lachaux v. Independent Print Ltd (2015), the judge said that Parliament had intended that the claimant has to prove as a fact, on the balance of probabilities, that serious reputational harm has been caused by, or is likely to result from, the publication complained of. In assessing whether there has been serious harm, a court is not limited to considering only the defamatory meaning of the words and the harmful tendency of that meaning – it is entitled to have regard to all the relevant circumstances, including what actually happened after publication. Following this decision, the legal presumption of damage is removed, and it appears that libel is no longer actionable without proof of damage.
While Cooke held that the relevant date for assessment of the serious harm is the date of issue of the claim form, in Lachaux, the court preferred to take the date at which the issue was determined.
For a corporate body, the ‘serious harm’ requirement will only be satisfied if the statement has caused or is likely to cause serious financial loss. This may include evidence of loss of contracts, customers or funding, or the likelihood of such. This is a high hurdle to overcome for companies, which will most likely lead to a decrease in the number of claims being brought by companies in England and Wales. As a result, there may be more actions being brought by CEOs of companies as individuals, as they do not have to prove serious financial loss. Publishers should therefore make it clear when they are only criticising companies, and not also suggesting any wrongdoing against any individuals involved with the running of the company. In some instances, it will be difficult to separate the company from the individuals in charge (for example, Mark Zuckerberg as the chairman and chief executive of Facebook).
Before an action for defamation can proceed, the trial judge must decide whether the words complained of are capable of bearing a ‘defamatory meaning’. Because it is possible to defame a person’s reputation in a number of different ways, there is no single test for defamation, but several. Judges have sought to remedy each category in a succession of cases since the seventeenth century. Generally speaking, a statement will be defamatory of a person today if it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so (Thornton v. Telegraph Media (2011)). This is, however, subject to the additional hurdle of the statement having caused, or being likely to cause, serious harm to the claimant.
SUBSTANTIALLY AFFECTS THE ATTITUDE OF OTHER PEOPLE TOWARDS THEM
A statement may still defame you, even if it does not fall under any of the categories of defamation, if the actions of right-thinking persons towards you are likely to be substantially affected (so that they treat you unfavourably, or less favourably than they would otherwise have done). It would almost certainly be defamatory, for example, to say that you have a criminal record, but it may also defame you to say that you regularly drink and drive.
In the case of Thornton v. Telegraph Media, Mr Justice Tugendhat classified defamatory statements into two categories: personal defamation and business defamation.
Personal defamation is where there are imputations as to the character or attributes of an individual. Business or professional defamation is where the imputation is as to an attribute of an individual, a corporation, a trade union, a charity, or similar body, and that imputation is as to the way the profession or business is conducted.
(i) Personal defamation comes in a number of sub-varieties including:
(a) Imputations as to what is illegal, or unethical or immoral, or socially harmful;
(b) Imputations as to something which is not voluntary or the result of the claimant’s conscious act or choice, but rather a misfortune for which no direct moral responsibility can be placed upon the claimant (such as disease);
(c) Imputations which ridicule the claimant.
(ii) Business or professional defamation also comes in a number of sub-varieties:
(a) Imputations upon a person, firm or other body who provides goods or services that the goods or services are below a required standard in some respect which is likely to cause adverse consequences to the customer, patient or client;
(b) Imputations upon a person, firm or body which may deter other people from providing any financial support that may be needed, or from accepting employment, or otherwise dealing with them.
In addition to these varieties, there is a distinction between sub-varieties of business defamation in which:
(a) The action is brought by an individual, where damage may include injury to feelings; and
(b) The action is brought by a corporation, where damage cannot include injury to feelings.
IMPUTATIONS UPON A PERSON OR ENTITY WHO PROVIDES GOODS OR SERVICES
You may defame someone not only in their personal or social capacity, but also at work, for example by alleging immorality or hypocrisy of a politician or a clergyman, professional misconduct or incompetence of a lawyer or doctor, plagiarism of an author, or fraud, false accounting or general lack of creditworthiness of an agent or publisher.
It was defamatory of a man in 1680 to allege that his wife beat him, and possibly still is. Anything which exposes someone to ridicule is actionable, particularly if they have a professional or social position to protect (even repeating a story they originally told as a joke against themselves). It is certainly defamatory to publish a statement causing someone to be despised – for example by falsely accusing them of child abuse, or even perhaps cowardice. In 1996 the actor, director and writer Stephen Berkoff sued over a film review which stated that ‘film directors from Hitchcock to Berkoff are notoriously hideous-looking people’. The Court of Appeal held that the words were capable of exposing him to ridicule.
In a contrasting case in 1998, the defendant published an article about the opera singer Jessye Norman who had allegedly become stuck in swing doors. The article stated that when advised to release herself by turning sideways, the singer replied ‘Honey, I ain’t got no sideways’. The singer sued stating that the words, which she had not spoken, exposed her to ridicule as they conformed to a degrading racist stereotype of an African-American. The Court of Appeal held that in the context of the publication – which was affectionate rather than critical – the words were not capable of bearing a defamatory meaning.
CAUSES THEM TO BE SHUNNED OR AVOIDED
Even if an allegation inspires only sympathy, rather than contempt, it may still be defamatory if it has the effect of causing people to avoid you, or excluding you from the society in which you normally move. Imputations of insanity or serious disease (such as leprosy) often had this effect in the past, even though they implied no blame or discredit. In the Berkoff case mentioned above, the words in question were held not to be capable of causing people to shun or avoid the claimant.
In deciding whether a particular set of words is capable of being defamatory or not, a judge will have to bear in mind two things: current social standards and what the ‘ordinary reader’, applying those standards, would think. These standards may change, of course (and do), and what the ordinary reader may have thought defamatory in our grandparents’ day may not strike us as defamatory at all.
SOCIAL STANDARDS
It was defamatory to say of a man during the First World War that he was German, or to say someone was a Communist in the 1920s, and the word ‘appeasement’ was capable of being defamatory in the 1930s. However, it was not regarded as defamatory to say of someone in the 1920s that they had worked during a strike, even though they were active trade unionists, since ordinary, decent members of society then were clearly not expected to strike, or even belong to trade unions. The standard is of society generally, not of any particular group. So, to say of a person that they have given information to the police is not necessarily defamatory, since right-thinking members of society generally – even today – are expected to do their civic duty and assist the police, despite the fact that it may make you unpopular with your neighbours.
THE ORDINARY REASONABLE READER
The objective test for defamation is not what the writer intended or had in mind in writing the words complained of, but what an ordinary reader would have thought when he or she read them. This hypothetical ordinary reader is not merely a reasonable person of normal intelligence but also moves about in society, probably reads newspapers and watches TV, has a reasonable sense of humour and is fairly up to date with common linguistic usages, including current slang. As the House of Lords said in one case: ‘The ordinary man does not live in an ivory tower. He can and does read between the lines in the light of his general knowledge and experience of worldly affairs.’
Thus, in the classic 1930 case of Tolley v. Fry, the depiction of a champion amateur golfer apparently advertising a Fry’s chocolate bar was defamatory, since the ordinary reader would assume that he would have been paid for such sponsorship and had therefore prostituted his amateur status. The advertisement itself did not say that, but that is what the ordinary reader would have thought.
The ordinary reader is not, however, unduly suspicious or cynical. A 1964 case held that to say officers of the City of London Fraud Squad were inquiring into the affairs of a company did not mean the company was guilty of fraud: although some cynics might have thought so, the ordinary reader would not necessarily conclude that the company was guilty simply because an inquiry was under way. The article was capable of meaning that the company was suspected of fraud, which was a less serious, but still defamatory, meaning.
The ordinary reader is taken not just to read headlines (which are often sensational in nature), but also to read the article accompanying the headline. In 1995, the House of Lords held that a prominent headline or a headline and photograph could not found a claim in libel in isolation from the related text of an accompanying article which was not defamatory when considered as a whole.
In that case, the actor and actress who played the characters Harold and Madge Bishop in the soap Neighbours sued when their faces were superimposed on to a photograph of a couple engaged in sexual intercourse. The headline read ‘Strewth! What’s Harold Up To With Our Madge?’ However, the body of the article discussed a computer game which superimposed the faces of celebrities on to the bodies of porn stars and stated that the celebrities had nothing to do with it. The single natural and ordinary meaning to be ascribed to the words of the allegedly defamatory publication was the meaning which the article taken as a whole conveyed to the mind of the ordinary, reasonable, fair-minded reader. Accordingly, the claimants could not rely on a defamatory meaning conveyed only to the limited category of readers who only read headlines. This is known as the ‘single meaning rule’. However, when considering the context of an article, material which can be accessed via a link included within the article does not form part of the article (Islam Expo Limited v. The Spectator (1828) Ltd and Stephen Pollard).
HIDDEN MEANINGS AND INNUENDOES
Words are normally to be construed in their ‘natural and ordinary meaning’ – might reasonable people understand those words in a defamatory sense? To call someone a thief or a murderer is fairly plainly defamatory. Remember, however, that the ordinary reader is also capable of reading between the lines. Words not so plainly defamatory in themselves may still carry a defamatory innuendo, when read in context, or when used against certain people. The classic example of innuendo meaning is Tolley v. Fry mentioned above. The special fact known by certain persons which made the advertisement defamatory was that the claimant was an amateur golfer. Similarly, to describe a person as voting Liberal Democrat is not defamatory per se, but it could be if the person concerned is a well-known Labour supporter, because it would imply the person was a hypocrite, or even a liar.
Even if the specific facts which you are describing are true, it is still dangerously easy to go beyond those specific facts and draw a more general inference which might not be true, and would therefore be defamatory. To say of a publishing company that they were, many years ago, found to have committed a trading standards offence in their advertising would not be defamatory, if it was true, but it might become defamatory if you then go on to imply from that that they are the sort of publisher that regularly defrauds the public with misleading advertising. A tour operator might on one occasion have sent tourists to a non-existent hotel, but if you publish an inference that they habitually do so they might well have an action against you for defamation.
In Lord McAlpine of West Green v. Bercow, Lord McAlpine sued Sally Bercow for her Twitter post ‘Why is Lord McAlpine trending? *innocent face*’, after a television broadcast was aired which falsely linked an unnamed ‘senior Conservative’ politician to child abuse claims. The court held that the words were defamatory; the tweet meant, in its natural and ordinary meaning, that Lord McAlpine was a paedophile who was guilty of sexually abusing boys living in care. Even if it was not defamatory on its natural and ordinary meaning, it bore an innuendo meaning to the same effect.
Every re-publication of a libel is a new libel. It is not a defence to say that you are simply a commentator or reporter repeating a statement made by someone else: defamatory statements do not somehow come into the ‘public domain’ once published or uttered, so that the subject thereafter becomes fair game. A libel is a libel, and the more often it is repeated – even as a ‘rumour’, re-tweet, or as an attributed quote – the more damage it can do and the more libel writs it may provoke. Different newspapers repeating the same story can all therefore be sued (and often are), and a remainder merchant or bookshop re-publishing an old title as a remainder might find that they are repeating an old libel.
Where a publisher repeats a statement made by somebody else then the publisher is treated as having made the statement. So, the statement that ‘the BBC reported that X is a terrorist’ means that ‘X is a terrorist’, not that the BBC reported it. This is known as the ‘repetition rule’. Furthermore, when it comes to proving the truth of the allegation, the rule states that it is not sufficient simply to point to the fact that the BBC was accurately quoted. The publisher must prove the substance of the allegation, namely that X is a terrorist (which, in this example, is an extremely difficult thing to do).
According to the courts, a defamatory allegation will usually have one of three levels of meaning. The highest level is ‘guilt’ (level 1), so for example, the statement that ‘X is a thief’ has a level 1 meaning. In order to succeed in a defence of truth at this level, which we deal with below (p. 210), a publisher would have to prove that the claimant is in fact guilty of theft (e.g. by pointing to a criminal conviction). The second level of meaning is ‘reasonable grounds to suspect’. Statements will be attributed this level of meaning if the imputation is that the claimant is under suspicion. To say that someone has been ‘accused of’ or is ‘alleged’ to have committed theft would usually bring it under this level of meaning. To justify this level 2 meaning, one would generally need to prove that the reasonable grounds to suspect existed at the time the statement was published (proving the truth of this level of meaning is explained further below on p. 211). The third (and possibly lowest) level of defamatory meaning is ‘grounds to investigate’. Stating that someone is being investigated on whether they committed wrong doing but denies the allegations is likely to convey this level 3 meaning. Such a statement could be justified by proof of the grounds on which the investigating body brought the investigation. However, such information may not always be available to the publisher. Adding denials, balance, and words like ‘claimed’ or ‘alleged’ tends to lower the meaning.
Once you have established that a statement is defamatory, a claimant must still prove that he or she, personally, is identifiable as the target before he or she can succeed in a defamation action. The words must not only be defamatory, and be published, but they must also be published ‘of the claimant’: that is, the finger must point at him or her. Put another way, the words complained of must be capable of being understood by reasonable people to refer to the claimant.
It is not necessary that the claimant should actually be named. If he or she is well known as the head of a particular publishing house, or the leader of a religious cult, or even the headteacher of a school, then they may be sufficiently identifiable to have an action for defamation – on the grounds that they were known to be responsible at the time, or must at least have known what was going on. ‘A wealthy benefactor of the Liberal Party’ secured damages on one occasion on the grounds that there were so few wealthy benefactors of the Liberal Party that everyone knew the words referred to him. Authors and publishers should therefore take great care over ‘fictionalised’ accounts of real-life situations or events. However much the names are changed, if it would be clear to any reasonable person which actual people or companies are being described, those concerned might well have an action for defamation.
It would not be defamatory, however, to make generalised statements about all members of a broad group or class, such as members of the Garrick Club or the Groucho Club: the statement must be taken to refer to the claimant personally, or to an identifiable group. To say that ‘all lawyers are thieves’ is not defamatory (however shocking), but it may be defamatory to criticise a particular group of lawyers, or a particular jury: each of them would then have an action.
Authors, and their publishers, should be particularly careful how they select names of fictitious characters, particularly if they are planning to put those characters in compromising positions. A humorous article in which a fictitious character called Artemus Jones appeared on the Continent ‘with a woman who is not his wife’ was held to be defamatory in 1910, when a real Artemus Jones turned up with several witnesses, all of whom claimed they thought the article referred to him. It would be similarly dangerous to publish defamatory references to any fictitious, but named, character, for example a fat actress: a real actress who happened to have the same name and who was a little plump may be able to prove that her friends (and potential theatrical employers) thought the defamatory references were to her. Selecting names of wicked aristocrats, dissolute women or any other fictitious rogues or crooks, should therefore be undertaken with great care.
In a 2001 case, the Sunday Mirror published, in five consecutive issues, a pornographic advertisement for an adult Internet service provider. The advertisement contained a photograph of a woman holding a telephone to her ear saying ‘See me now at www.internet.com if you have access to the net, join on line now’. The claimant sued for defamation alleging that, as the photograph was the spitting image of her, people who knew her would believe she was appearing on a pornographic website as well as in the advertisement. In fact the photograph was of a glamour model who had consented to the publication.
The court held that the advertisement was objectively capable of referring to the claimant. Furthermore, it referred to the case involving Artemus Jones mentioned above and confirmed that innocence was no defence in such a case. Nevertheless, the court decided that Article 10 of the European Convention on Human Rights, which protects freedom of expression, prevented the law of defamation applying in the ‘look alike’ situation. The judge stated that it would impose an impossible burden on publishers if they were required to check if the true picture of someone resembled someone else who, because of the context of the picture, was defamed.
The general rule is: if you think there is any risk you may be identifying a real person, do everything you reasonably can to check that no one of that name and description already exists, and if still in doubt, pick another name and/or change the description.
Finally, bear in mind the risk of juxtaposition of unconnected pieces of text or photographs. This can apply to any publication including advertisements. It is a risk particularly run by periodical and newspaper publishers. One extreme example of this was Jason Donovan’s successful libel action in 1992 against The Face magazine, when his face was superimposed on to a photograph of someone else wearing a T-shirt which read ‘Queer as Fuck’. It can be done quite innocently and accidentally, however: it is possible to defame someone simply by printing their photograph, or some other reference to them, next to quite unconnected text which is critical or unflattering of other people – a picture of a reputable literary agent next to an article on corruption or tax evasion, or of a happily married author next to a piece about prostitution or pornography. The fact that you did not intend any defamatory reference will not necessarily give you a defence, if the friends of those people would assume the piece referred to them. Those responsible for final page make-up should therefore be made well aware of the risks.
A statement in order to be libellous must be published to a third party. This means that any communication to someone other than the person being defamed counts as a publication. Most publications or information services put on to the market will, by definition, satisfy that requirement. It does not matter if the circulation of the publication is limited. In 2010, Mr Justice Tugendhat held that the claimant could proceed with a libel claim in respect of a publication read by 13 readers (Underhill v. Corser and Watson). Emails and tweets can be publications too. Three points in particular should be noted.
LIABILITY FOR PUBLICATION
All those involved in a publication are prima facie liable for defamatory statements contained in it. This includes not only the original author of the words concerned, but everyone else who has taken part in publishing them. This could potentially include the author, editor, sub-editor, publishing director, publisher and proprietor. Responsibility can also extend to the printer, distributor, bookseller and even newspaper vendor. Nevertheless, anyone who is not the author, editor or publisher of the statement may have a defence if they can show that they took reasonable care in relation to the publication and did not know, and had no reason to believe, that what they did contributed to the defamation (see below). One of the most important issues is the liability of Internet service providers for defamatory remarks by users on sites which they host (as to which see the section at p. 217 below).
The general rule is that a claimant will have one year from the date of the first publication of a statement to the public to sue. This time limit does not start again for each subsequent publication of the same statement, unless it is republished by a new publisher, or if the publication was materially different from the first publication. This means that for publishers with online archives, the limitation period will not start to run again for every new ‘hit’ or download on a webpage. For further details see p. 221, ‘Limitation’ section, below.
JURISDICTION
For the purposes of English defamation law, publication takes place in the jurisdiction where the matter is viewed. So if a foreign publisher sells some copies to people in England or Wales (whether in hard copy or online form), it will be publishing in England.
A claimant will not be able to bring proceedings in the UK if the person they are suing is domiciled outside the EU, Iceland, Norway or Switzerland, unless the court is satisfied that England and Wales is the most appropriate place to bring an action. This is designed to prevent ‘libel tourism’, where foreign claimants attempt to bring a claim in England because the libel laws are preferable to those of another jurisdiction.
For such foreign publishers who merely make copies of their publications available in the UK, it is unlikely that a claimant will be able to sue them in the UK. For example, a libel action could not be brought against a US defendant over publication of a US newspaper also read in England, unless England is clearly the most appropriate place to sue. In deciding this, a court will probably look at the number of English readers compared to US readers, as well as the place where the claimant has a reputation. If the number of English readers is considerably less than US readers, and/or the claimant has no connection to England, it seems unlikely that a court will allow a claim to be brought in England. Conversely, the courts will be much more likely to allow a case to be brought in the UK where the claimant is English and living in England, as the damage will have taken place in England.
The courts will also consider jurisdiction where non-EU claimants sue a UK publisher in England. Depending on where the claimant and the publisher are domiciled, the courts may consider the extent to which the allegedly defamed person has a connection to the United Kingdom (e.g. by virtue of his reputation, family or business connections). The pre-Defamation Act 2013 cases of Don King v. Lennox Lewis and Richardson v. Schwarzenegger make it clear that the English courts will not distinguish between those who deliberately publish in the UK and those who do so incidentally and without intending to target any particular jurisdiction. Generally, the greater the connection which the claimant has to England, the more likely it is that the English court will seize jurisdiction of the proceedings. In the more recent case of Karpov v. Browder, the court struck out the Russian claimant’s libel claim in relation to various Russian publications. They held that the claimant had no substantial reputation in England before the publications and therefore there was no real and substantial tort in England. Thus, if the claimant has a significant reputation in England, it is likely that the court will accept jurisdiction.
However, where the number of publications in England is so insignificant that there was no real or substantial tort, the English court is likely to strike out the claim as an abuse of process. In the case of Dow Jones v. Jousef Jameel (2005), the Court of Appeal struck out a claim against the Wall Street Journal Online as there had only been five subscribers to the publication in the jurisdiction. In the circumstances of the case, the costs of the litigation would have been out of all proportion to any damage which could have been suffered by the claimant.
Once a claimant has proved that the words complained of were defamatory and serious harm has been established, that they refer to him or her, and that they were published by the particular publisher concerned (note that claimants do not need to prove that the words were false), then the burden of proof shifts to the publisher: they must then prove (if they can) that there is a valid defence. English law provides a number of possible defences to an action for defamation. We will look at them in turn, but the main defences are:
• truth,
• honest opinion,
• publication on a matter of public interest,
• absolute or qualified privilege,
• defences for third party intermediaries, including the defence for website operators.
TRUTH
It is an absolute defence to a charge of defamation to prove that the statement you published was true. It is not necessary to prove that every word of the statement is true, provided that it is substantially true. Minor errors of detail, which do not form the main substance, or essence, of the libel, will not prevent a defence of justification from succeeding.
What is the position, however, if the fact which turns out to be untrue is not some minor detail of time or place, but is also potentially defamatory itself? Section 2(3) of the Defamation Act 2013 provides that a defence of justification will still succeed if ‘the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.’ Remember, however, that if you go beyond individual facts and make a much more serious general inference or innuendo which is not true, a defence of truth may not protect you. All material allegations must be substantially true.
It is no defence to claim afterwards that you were merely repeating rumours which genuinely existed, although the meaning may not be defamatory if you make it clear at the time of the statement that what you are saying is only a rumour which is false. As a general rule, the truth you must prove is the truth of the sting of the article – not the fact that it was being rumoured. It is therefore important, if you are going to plead truth as a defence, to have reliable documents or witnesses who will be prepared to testify in person as to the main allegation on your behalf at a trial. If they are likely to become unreliable or disappear altogether, it may be in your interests to secure a witness statement from them, or at least ensure that they have kept a written note, or some other record such as a tape recording, but such evidence will not always be admissible. If the defence of truth fails, the claimant may be entitled to aggravated damages on the basis that you have continued to allege the defamatory statement is true. Therefore, it is often better not to plead truth if there are other, stronger defences available.
The conduct rule
A publisher seeking to justify a statement which imputes a meaning of ‘reasonable grounds to suspect’ (a level 2 meaning) can generally only succeed by adducing convincing evidence relating to the conduct of the individual claimant. This is referred to as the ‘conduct rule’. Evidence of existing credible third party allegations in the hands of a defendant publisher at the time of making the statement has been held by the courts not to be sufficient to justify such a meaning. For example, if the meaning of the publication is that there are reasonable grounds to suspect that X is a fraudster, it is not enough to prove that someone else (e.g. the police or the government) believes X is a fraudster. The publisher must prove that the conduct of X gave the publisher reasonable grounds for the suspicion (for example, that he used a false name when signing cheques). In summary, the conduct rule states that a truth defence will generally only succeed if the publisher is able to prove the level 2 meaning by concentrating on the conduct of the claimant which gave rise to the suspicion at the time of publication.
Spent convictions
The one exception to the general rule that truth is an absolute defence is the statutory provision relating to ‘spent’ convictions under the Rehabilitation of Offenders Act 1974. It is considered socially useful that relatively minor offences should be erased from the public memory after a certain period of time – the periods vary from three to 10 years, depending on how serious the original offence was. After such convictions have become ‘spent’, evidence relating to them will not generally be admissible, but such evidence will be available in defamation actions to support a plea of truth, provided the original publication was not made with malice. We will deal more fully with ‘malice’ below, but for practical purposes here this is a very restricted exception.
English courts have long recognised a limited right of honest opinion (previously known as fair comment), by accepting it as a valid defence to a charge of defamation. This does not protect every form of comment, but it does provide a real defence for honest opinions, based on real facts. An opinion is defined as a value judgment, but can also be a deduction or an inference from primary facts. To succeed in an honest comment defence, the defendant must prove three things:
(1) The statement must be an expression of opinion and not an assertion of fact,
(2) The statement must indicate the basis of the opinion, and
(3) An honest person could have held that opinion on the basis of any true fact which existed at the time the statement was published, or anything asserted to be a fact in a privileged statement published before the statement.
Even if the defendant can prove these things, the defence will not succeed if the claimant can show that the defendant did not actually hold the opinion. In practice, this will be difficult for a claimant to prove.
Opinion
Indication of basis of opinion
The statement must clearly be recognisable as personal opinion, but it must be opinion based on something, and must indicate what this is. It is not honest opinion simply to express random opinions on other people. So to say of a well-known entrepreneur that they are not fit to be a director of a British company, without any supporting facts, would not be regarded as honest opinion. If, however, you said that in your opinion the person was unfit to be a director because they had just been convicted of specific crimes (and that was true), then your comment is likely to be held to be honest opinion, provided that an honest person could have held that opinion based on a true fact.
Honest person could have held the opinion
The opinion need not be ‘fair’ in the colloquial sense of reasonable, fair-minded, balanced or even-handed. Commentators and critics are expected to express vigorous, often highly subjective, opinions. However, this defence will only apply if an honest person could have held that opinion based on any true fact which existed at the time the statement was published, or any fact in a privileged statement published before the statement complained of (for details of privileged statements, see the section on privilege below at p. 215). This introduces an objective element into the defence. Therefore, even if the publisher holds this opinion and explains his reasons why, if an honest person could not have held that opinion on the basis of any facts in existence at the time the statement was made, the defence will fail.
If any passage of text which includes both fact and opinion is giving concern, therefore, it is a good idea to run the following tests:
• Is the statement opinion or fact?
• Is the basis of the opinion stated?
• Are all the facts stated (and quotations) true and accurate – and can we prove it?
• Could an honest person have held that opinion on the basis of any fact which existed at the time the statement complained of was published or any fact in a privileged statement published before the statement complained of?
• Did the maker of the statement hold the opinion?
If the answer to either of the above questions is ‘no’, a defence of honest opinion may not succeed.
PUBLICATION ON A MATTER OF PUBLIC INTEREST
The Defamation Act 2013 introduced a public interest defence into UK legislation. Publishers will have a defence if they are able to show that:
• the statement complained of was, or formed part of, a statement on a matter of public interest; and
• the publisher reasonably believed that publishing the statement complained of was in the public interest.
There is no express requirement for the publisher to prove that it has met a standard of responsible journalism, or that it has acted fairly and responsible in gathering and publishing information. Rather, the crucial thing is the defendant’s reasonable belief. In deciding whether this is satisfied, the court must make such allowance for editorial judgment as it considers appropriate, as well as all the circumstances of the case.
It seems likely that the court will take into account the checks made by the publisher before publication to verify the truth, and whether the article is written in a balanced way. If not, and if reasonable checks have not been made, it may well be that it would not be reasonable for the publisher to believe the publication to be in the public interest.
As ‘public interest’ is not defined in the legislation, this will be a matter for interpretation by the courts. However, it seems that what is interesting to the public will not necessarily always be in the public interest. For example, the defence will not apply to pure celebrity tittle-tattle (such as kiss-and-tell stories, unless the person in question is in a position of responsibility or has held themselves out as being particularly family-oriented). Topics which the courts will consider to be in the public interest include politics, crime, education, environment, and scientific and academic debate.
If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must, in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation. So, if a publisher is reporting on a dispute about the claimant, the court will not take into account the fact that the publisher has not taken steps to verify the truth of the allegation (i.e. by contacting the claimant to ask for comment). At the time of writing, it is not clear how the courts will interpret the concept of ‘dispute’, but it seems that this will cover court proceedings.
This statutory defence replaces the common law Reynolds qualified privilege defence, which was in place before the Defamation Act 2013 came into force. However, while this has been abolished by the 2013 Act, it is possible that the courts may use the Reynolds factors set out below when applying the defence:
(1) the seriousness of the allegation;
(2) the nature of the information and the extent to which the subject-matter was a matter of public concern;
(3) the source of the information;
(4) the steps taken to verify the information;
(5) the status of the information;
(6) the urgency of the matter;
(7) whether comment was sought from the claimant;
(8) whether the article contained the gist of the claimant’s side of the story;
(9) the tone of the article; and
(10) the circumstances of the publication, including its timing.
Before the Defamation Act 2013 came into force, the courts applied the Reynolds criteria, saying that they expect the defendant to demonstrate responsible journalism before the privilege can be established. In particular, the courts will expect:
• checks to be made by journalists to verify their stories;
• the journalist to approach the subject of any allegations and put the allegations which are to be published to the person and ask for comment, giving the subject adequate time to respond on all of the allegations. The graver the allegation, the greater the need to give an opportunity to the subject of the allegations to comment;
• the journalist/publisher to delay publication if more checks must be made to verify the story, unless the story is objectively of an urgent nature;
• the journalist not to rely heavily on draft or interim reports but to point to a concluded investigation before identifying the subject of any allegation. If the journalist waits until the outcome of an investigation, the defence is more likely to succeed.
These factors may also be taken into account by a court when applying the defence.
PRIVILEGE
English law regards some occasions as being self-evidently of public interest, and therefore protects statements made on those occasions from any actions for defamation. Such statements are said to be ‘privileged’. The law will protect them, however untruthful they may turn out to be, in order to give the greatest possible freedom of speech in the public interest.
Privilege comes in two kinds: absolute privilege, and a lesser form of conditional privilege known as qualified privilege.
Absolute privilege
As the name implies, statements carrying absolute privilege are completely protected from defamation actions, even though they may have been made maliciously or with reckless unconcern for the truth. Statements made by MPs or peers in Parliament are absolutely privileged, as are statements made in court, or during quasi-judicial proceedings, for example before tribunals, inquests or courts martial. Statements made by government ministers or between officers of the armed forces in the course of their official duty are absolutely privileged. So too are official Parliamentary or government reports such as Reports of Select Committees or White Papers.
In addition, the following reports are absolutely privileged:
(1) Hansard. This is the official daily report of proceedings in Parliament.
(2) Contemporaneous court reports. The Defamation Act 1996 (as amended by the Defamation Act 2013) provides that fair and accurate reports of proceedings in public before any court in the UK, any court established under the law of a country or territory outside the UK, or any international court or tribunal established by the Security Council of the United Nations or an international agreement, are also protected by absolute privilege, provided they are published ‘contemporaneously’, that is in the next reasonably available issue or broadcast if in a newspaper or on the radio or TV.
Apart from the above two examples, second-hand reports of statements, for example in newspapers, are not generally protected by absolute privilege, although they may be given qualified privilege.
The essence of qualified privilege is the public interest for a particular recipient to receive frank and uninhibited communication of information from a particular source. Although only a conditional form of protection, qualified privilege still gives considerable protection to many statements even if they turn out to be untrue, made on matters of public interest, or in the context of a social or professional duty, provided that they are made without malice. The publication must be in the public interest, not merely of interest to some of them.
Statutory qualified privilege
The 1996 Defamation Act specifically grants qualified privilege, in the absence of malice, for fair and accurate reports of proceedings in public of any legislature, court, official public inquiry or international organisation or conference in the world as well as copies or extracts from documents required by law to be open to public inspection or published by any court, government, legislature or international organisation or conference in the world. The Defamation Act 2013 extended qualified privilege to statements in scientific or academic journals.
It also provides a further category of qualified privilege including the following fair and accurate reports, but ‘subject to explanation and contradiction’:
(1) A copy, extract or summary of :
(a) a notice issued for the information of the public by or on behalf of a legislature, government or authority performing governmental functions (including police functions) anywhere in the world, or an international organisation or international conference (attended by at least two governments);
(b) made available by a court or judge anywhere in the world;
(2) any finding or decision of any associations promoting:
(a) art, science, religion or learning;
(b) any trade, business, industry or profession;
(c) any game, sport or pastime;
(d) charitable objects or other objects beneficial to the community;
(3) proceedings of any public meeting of a local authority, justice of the peace, official inquiry or held under a statutory provision held anywhere in the world;
(4) proceedings at any bona fide and lawful meeting held anywhere in the world concerning a matter of public concern;
(5) General Meetings of a listed company;
(6) press conferences.
Any such report must be for the public benefit.
However, this further category of qualified privilege will not be available if the claimant has requested a reply to be published and the defendant refuses or neglects to do so.
Section 6 Defamation Act 2013 provides that peer-reviewed statements in scientific or academic journals will be privileged if:
(1) the statement relates to a scientific or academic matter; and
(2) an independent review of the scientific/academic merit was carried out before publication by the journal’s editor or at least one person with expertise in the scientific or academic matter concerned.
INTERMEDIARY LIABILITY
Under section 1 of the Defamation Act 1996, a person who is not the author, editor or publisher of a statement complained of has a defence if he took reasonable care in relation to its publication and did not know, and had no reason to believe, that what he did caused the publication of a defamatory statement. Here ‘publisher’ means a commercial publisher, that is, a person whose business is issuing material to the public. A person is not considered to be an author, editor or publisher if he is only involved in the following:
(a) in printing, producing, distributing or selling printed material containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording containing the statement;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement;
(e) as the operator of or provider of access to a communication system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.
This defence was tested in 1999 when a Dr Godfrey sued the Internet service provider (ISP) Demon Internet. In that case a defamatory article was posted on one of Demon’s newsgroups. However, the posting was falsely stated to have been written by Dr Godfrey. He wrote to Demon requesting that the statement be removed. Demon did not take any steps to remove it and it remained in the newsgroup until the posting expired 10 days later. Dr Godfrey sued for libel and the ISP sought to rely on the defence under section 1 of the Defamation Act 1996. The court held that although the ISP was not the author, editor or publisher (as it fell within (e) above), it failed to take reasonable care in relation to the statement and knew about the publication of the defamatory statement. Once Dr Godfrey had given the ISP notice of the defamatory statement, the ISP could no longer rely on the section 1 defence. Therefore, ISPs who have been given notice of defamatory statements on websites hosted by them should ensure that they take reasonable care in relation to these statements.
The section 1 defence has also been tested in relation to bookshops. In 2002, the court decided that a bookshop could not rely on the defence following the sale of an anti-racist pamphlet which included a defamatory statement. The man to whom the statement related had written a letter of complaint to the bookshop and the bookshop continued to sell the pamphlet. The bookshop therefore could not establish that they had no reason to believe that what it did caused or contributed to the publication of the defamatory statement.
In addition to section 1 of the Defamation Act 1996, section 10 of the Defamation Act 2013 states that a court does not have jurisdiction to hear and determine a defamation action brought against someone who is not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher. This adds to the defence under section 1, and provides relief for intermediaries such as Internet service providers and social media companies. In some cases, it is likely to be practical to sue the author (if identifiable).
There is further comfort for Internet service providers under the Electronic Commerce (EC Directive) Regulations 2002. Regulation 17 provides that where a service consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, the service provider is not liable for the information transmitted, on condition that the provider:
• does not initiate the transmission;
• does not select the receiver of the transmission; and
• does not select or modify the information contained in the transmission.
Transmission and provision of access includes the automatic, intermediate and transient storage of the information transmitted, insofar as the sole purpose is the transmission and provided that the information is not stored longer than is reasonably necessary. Thus ISPs and intermediaries which are merely conduits will not be liable. (As mentioned below, the position is different where an ISP hosts a website.)
Furthermore, the Regulations also limit liability for ISPs which cache information, that is, store information more locally to make more efficient the transmission of the information. The service provider is not liable for caching, on condition that the provider does not modify the information and complies with certain industry rules. A further requirement is that the provider acts expeditiously to remove information upon obtaining actual knowledge that the information at the initial source of transmission has been removed or ordered by a court to be removed.
The Regulations also state that a provider of a service which consists of the storage of information provided by a recipient of the service, i.e. where an ISP hosts a website or online content for someone, will not be liable for the information stored at the request of the recipient of the service. The conditions are that:
• the provider does not have actual knowledge of illegal activity or information; or
• the provider, upon obtaining such knowledge acts expeditiously to remove or disable access to the information.
In the United States, ISP immunity from defamation actions has generally been granted by section 230(c)(1) of the federal Communications Decency Act 1996. This is achieved by stating that ISPs, and indeed any provider or user of interactive computer services such as libraries and schools, are precluded from being treated as publishers of any information provided by another content provider. The US Court of Appeals, Fourth Circuit confirmed in 1997 that the section covered tort-based lawsuits, including defamation, and that it extended to ‘distributors’ of such material, as well as ‘publication’, protecting ISPs further.
User-generated content (UGC)
It is becoming increasingly common for online publishers to encourage readers to post content to their websites. For example, readers are permitted to upload comment on articles published online. However, this practice can expose publishers to the risk of liability for content over which they have no control.
Section 5 of the Defamation Act 2013 introduced a new defence to deal with defamation claims in relation to user generated content on websites. The starting point is that it is a defence for website operators to show that they did not post the statement on the website. This will apply even if the content has been moderated by the website operator. It seems likely that the term ‘website operator’ will not apply to a pure ISP of a website on which the statement complained of has been posted. However, ISPs may be able to rely on section 10 of the Defamation Act 2013, or the defence under section 1 of the 1996 Act. They may also be able to rely on the hosting defence under Regulation 19 of Electronic Commerce (EC Directive) Regulations 2002, known as the E-Commerce Directive.
The section 5 defence will not be available where the claimant is able to show the following:
(i) It was not possible for the claimant to identify the person who posted the statement;
(ii) The claimant gave the website operator notice of complaint about the statement; and
(iii) The operator failed to respond to that notice in accordance with any provision contained in regulations.
A claimant will only be able to ‘identify’ a person if he has sufficient information to bring proceedings against him. It will often be difficult or impossible to find out information such as a user’s full name and address, with website users often only having to give a ‘user name’ before they are able to post content on the website.
The notice mentioned at ii above must also contain certain information to be compliant with the Act. It must for example contain the complainant’s name, the statement complained of, where it was posted on the website, and must explain why it is defamatory of the complainant. Once a notice has been received, the owner must take down the post and/or provide the claimant with the identity or contact details of the poster.
The defence will not apply if the claimant can prove that the website operator acted with malice in relation to the statement complained of.
Other areas of risk are privacy, copyright and contempt of court. If the website enables users to trade products via the site, trade mark law may also give rise to risks. Given that the content is generally provided by users over whom the website owner has no control, it will often be necessary for the website owner to establish the hosting defence offered by the E-Commerce Directive or the section 1 defence available under the Defamation Act 1996, described above.
Parties seeking to find out information about a party may seek to obtain a Norwich Pharmacal order from the court, which requires a respondent to disclose certain documents or information to the applicant. This may apply to a party who was posting defamatory material on a website following Totalise plc v. The Motley Fool Ltd.
In addition to defamation, UGC can give rise to other risks, including privacy and contempt.
OFFER OF AMENDS
Defamation proceedings can be long and expensive. Where a defendant has published a defamatory statement, there is a method of speedily resolving the matter which aims to reduce expense. In order to achieve this, a defendant may offer to make amends by publishing, in a reasonable manner, a suitable correction of the statement complained of and a suitable apology to the aggrieved party, and to pay compensation and costs as may be agreed or determined. Thus, if the compensation under an offer of amends cannot be agreed between the parties, the matter will be determined by a judge.
The offer to make amends must be made before the defence is served and so the defendant must act quickly. If the offer is accepted, the party accepting the offer may not bring or continue defamation proceedings in respect of the publication concerned. If the offer is not accepted, the fact that the offer was made shall be a defence, unless the person making the offer knew or had reason to believe that the statement complained of referred to the aggrieved party and was both false and defamatory of that party. The defence can also be defeated by the aggrieved party successfully arguing malice (for more information on Malicious Falsehood, see p. 224 below).
In any event, an offer to make amends may be relied on when arguing the amount of damages which should be awarded, usually having a deflationary effect on damages. For example, in the case Nail v. News Group Newspapers Ltd and Others, the court held that, as there was a public interest in encouraging media defendants to make offers of amends, damages awards ought to be ‘healthily discounted’ in these sorts of cases and discounted the damages by 50 per cent.
Consent
Evidence of consent to publication is a full defence – although often difficult to prove, without signed statements. If you participate in the publication, for example by joining in a radio or TV discussion to put your side of the story, or by publishing your own statement alongside the offending version, then you may be held to have consented to publication taking place. However, the mere consent to be interviewed does not imply consent to specific libels. Consent can only be deduced from some positive act: silence does not imply consent, nor does the time-honoured phrase ‘no comment’.
Death of the claimant
Libel is a purely personal action under English law, and since the dead cannot sue personally, it is a complete defence to a libel action to establish that the person defamed is now dead. Even if the claimant was alive when the libel was published, but dies before the case is tried (or even in mid-trial), the action instantly dies too, and cannot be continued by the claimant’s relatives or heirs.
Limitation
It is a defence to an action for defamation to prove that it is out of time, or in other words has been started too late. Claimants must bring their actions within one year from the date of publication. However, if the court considers that it would be equitable to allow the claimant to sue even if he or she is outside this time limit, it has a discretion to allow the claim to proceed if it would not prejudice the parties. Publishers with online archives can rest assured that the time period of one year starts from the date on which an article is uploaded on to the archive and will not begin again each time the article is downloaded or accessed by a web user. This is called the ‘single publication rule’. This obviously reduces the liability for publishers, who would otherwise potentially be open to a libel suit forever.
However, the limitation period will start again if the manner of publication was materially different from the first publication, or if it was republished by a new publisher. Factors the court may take into account when deciding whether the publication was materially different include the level of prominence and the extent of the subsequent publication. It seems that, based on the wording of the legislation, this rule applies only to a person who published both the first and the subsequent publication. It does not seem to apply to a second person who publishes the same statement for the first time.
When deciding whether to extend the limitation period, the court will take into account all the circumstances of the case, including the length of, and reasons for, the claimant’s delay, the date he became aware of the libel and the extent to which he acted promptly and reasonably once he did know. It must be equitable to allow an extension of time. However, the courts have ruled that ignorance of the limitation period should not be a factor that carries any significant weight.
The legal costs of bringing or defending an action for defamation often run into hundreds of thousands of pounds (and sometimes even exceed the £1 million mark).
The general rule in the English courts is that the losing party has to pay a proportion of the winner’s costs. As mentioned above, the maximum general damages awarded have been about £250,000. It therefore comes as no surprise that it is frequently the costs of an action that become the driving force of the dispute. This is especially so if the person bringing the claim is funding the action by way of a conditional fee agreement (CFA) with his or her lawyer.
Under a CFA, a claimant’s solicitors will usually only recover their fees in the event that either the claim succeeds or the defendant admits liability (e.g. in a settlement). The solicitors’ fees are recovered from the losing defendant. A CFA is a kind of no-win-no-fee system. If the claimant wins, his lawyer will be able to charge a ‘success fee’, which can be up to an additional 100 per cent of the actual costs that have been incurred. So, if the defendant is unsuccessful in defending the claim, he may be liable to pay not only his own costs but also the claimant’s costs plus the success fee. For example, if both sides’ costs are £300,000 and the claimant’s lawyer is working on a 90 per cent success fee, a losing publisher could have to pay £756,000. This is made up of £300,000 paid to the publisher’s own lawyer and £456,000 to the claimant’s lawyer at a recovery rate on the base costs of 80 per cent. The calculation is 80 per cent × £300,000 = £240,000 for the claimant’s base costs, plus 90 per cent × £240,000 = £216,000 for the success fee. Furthermore, even if the defendant is successful, he will sometimes be unable to recover his own costs from a claimant who is funded by a CFA because the claimant may have no money.
After-the-event insurance policies (ATEs) are sometimes available to provide cover for a claimant’s liability for the defendant’s costs if the claim is unsuccessful, but these are very unlikely to be available for claims where the claimant’s chances of success are not favourable. Also, some policies will be invalid if the publisher successfully justifies the claim (since the insurance would have been premised on the fact of the claimant telling the truth to his or her insurer). In 2010, the government indicated its intention to reduce the success fee in defamation proceedings. However, in 2012, the government announced that the abolition of recoverability of success fees and ATE insurance premiums would be delayed until a new regime of qualified one-way costs protection had been introduced through changes to the Civil Procedure Rules.
An issue relevant to many online publishers is linking to material published on other websites. The law in this area is largely untested. In certain circumstances, linking could well give rise to liability for defamation. The key issue is whether a linker is publishing, or participating in the publication of, the linked defamatory material. Publication at common law is a question of fact. It depends on the circumstances of each particular case whether or not publication has taken place. Publication requires a degree of ‘knowing involvement’ in the publication of the defamatory material. The linker would need to have had the necessary degree of knowing involvement in the publication. In assessing this, the court is likely to consider the linker’s knowledge and intention in placing the link and the context of the link.
As mentioned above at p. 205, when considering the context of an article, material which can be accessed via a link included within the article does not form part of the article (Islam Expo Limited v. The Spectator (1828) Ltd and Stephen Pollard).
In the absence of other case law on linking, the case which provides the closest analogy to linking is the 1894 libel case of Hird v. Wood. The defendant, Mr Wood, was sitting silently on a stool by the roadside and continually pointing at a nearby sign to attract the attention of passers by to it. The sign contained defamatory remarks about the claimant, Mr Hird. There was no evidence as to who had written the words on the sign or put it beside the road. The Court of Appeal found that, by drawing attention to the sign, there was evidence of publication.
Some caution is needed with the Hird v. Wood decision. While it is from the Court of Appeal, it predates the Internet by nearly a century and was a preliminary decision rather than final judgment following a trial. Nevertheless, it could be argued, by analogy, that a link resembles Mr Wood’s pointing finger and the linked webpage resembles the sign, and so a link (by ‘pointing’ to content) would amount to publication of the linked defamatory material.
A linker could in certain circumstances be liable for linking to other types of unlawful material, such as content that infringes copyright, breaches privacy or confidentiality, is in contempt of court, incites racial or religious hatred, is obscene or encourages/induces acts of terrorism. While there is no English case law directly on this question, the analysis of when a linker could be held liable/guilty is likely to be the same as for defamation. If the main purpose of the link is to disseminate or refer readers to the unlawful material, then the linker is more likely to be found liable/guilty.
Is it defamation at all?
• What is the meaning of the statement?
• Is it a statement of fact, or an honest opinion?
• Has it been published yet? If not, is it too late to take it out, or tone it down?
• Is there any dangerous innuendo or inference?
• Does it refer to an identifiable individual?
• Does it lower their reputation?
• Have we checked any ‘fictitious’ character names (for example in relevant directories)?
• Might this be repeating an old libel?
• Do we have an effective warranty against libel or libel insurance?
• Has the statement caused serious harm (in the case of a company, serious financial loss)?
• Is the person concerned still alive?
Are there any defences?
• Is the statement (and any innuendo) substantially true? Can we prove it?
• Is this all ‘honest opinion’, or are there (untrue) allegations of fact?
• Is it comment on a matter of public interest and did the publisher reasonably believe it was in the public interest?
• Has the publisher asked the person concerned for comment?
• Is the statement privileged in any way?
• Is the publisher simply operating a website without having made the statement?
• Has there been or should we make an offer of amends?
• Is the person concerned still alive?
• Did they consent to publication?
• Is it too late to bring a libel action?
Some untruths may not, strictly speaking, be defamatory and (for example) lower you in the estimation of right-thinking members of society, but they may still cause you harm. To say of a publisher or a literary agent, for example, that they had retired from business and were therefore no longer looking for authors, would not be defamatory – people do retire occasionally. If it was untrue, however, it might cause them considerable financial harm, in the shape of lost business, and if it was said maliciously they may have an action for malicious falsehood.
In order to succeed in an action for malicious or injurious falsehood, a claimant must prove:
• that the statement is false;
• that it was published maliciously (‘malice’ here means that the defendant knew the statement was untrue, and made it intending to injure the claimant or made it with a reckless indifference as to whether the statement is true); and
• actual financial loss or that it is likely to cause financial loss, in his or her office, profession, calling, trade or business at the time of publication or if the statement is published in writing or other permanent form.
The action was used by the actor Gordon Kaye to prevent the Sunday Sport tabloid from publishing an interview he made whilst in hospital just after undergoing extensive surgery for head injuries (Kaye v. Robertson and Sport Newspapers Ltd). Journalists had gained unauthorised access to Mr Kaye’s hospital room to interview him. The court prevented publication of the interview on the grounds of malicious falsehood. The article the Sunday Sport proposed to publish falsely stated that Mr Kaye had consented to the interview (when he was in no fit state to do so). It was published maliciously as it was apparent to the journalists that he was not able to consent. Furthermore, the article was likely to cause damage as Mr Kaye had a valuable right to sell his story. It should also be noted that at the time there was no actionable right of privacy in English law. Such an action can now be brought as a misuse of private information in the light of the Human Rights Act 1998 (see Chapter 9).
More recently, the action was being used in the case of Ajinomoto Sweeteners Europe SAS v. Asda Stores Ltd. Ajinomoto, a leading supplier of the sweetener aspartame, took action against ASDA after the packaging of some of the supermarket’s range of ‘healthy’ foods suggested that aspartame was a ‘hidden nasty’. The goods in question were labelled with the slogan ‘No hidden nasties’ and also contained a note which typically read ‘No artificial colours or flavours and no aspartame’.
The supplier complained that the meaning of the labelling was either that aspartame is especially harmful or unhealthy; potentially harmful or unhealthy; or a sweetener that customers concerned for their health would do well to avoid. On this basis, they brought an action for malicious falsehood. The Court of Appeal recognised that a statement can reasonably mean different things to different people and decided the case on the basis of a variety of meanings, including those more serious meanings pleaded by Ajinomoto. Therefore, the single meaning rule which applies in defamation does not apply in malicious falsehood.
Absolute privilege is a defence to malicious falsehood, so statements made, for example, in the course of judicial proceedings or in Parliament would be protected.
If a statement is not defamatory, or a malicious falsehood, or otherwise illegal, but nevertheless causes harm to people who rely on it, it might still expose the publisher to an action for damages if it was made negligently. Suppose that a leading medical textbook seriously mis-states a recommended drug dosage, or that a specialist financial journal gives a subscriber the wrong investment advice in its regular advice column. Would either of these mis-statements be negligent?
Negligence is a particular kind of civil wrong (known in English law as a tort). It consists, briefly, in the breach of a duty to take care in a way which causes damage to others. To prove negligent mis-statement, therefore, it is necessary to prove five things:
(1) the person making the statement owed the claimant a duty of care;
(2) the statement was incorrect;
(3) the maker did not take reasonable care, i.e. he or she breached that duty;
(4) the recipient relied on the statement and it was reasonable for him or her to rely on it; and
(5) loss or damage was suffered which was reasonably foreseeable and caused by that breach.
DUTY OF CARE
There is no general legal duty to the whole world not to be careless. For a misstatement to be negligent, it must be more than merely careless: the maker of the statement – the author or the publisher – must at the time the statement was made have owed the reader a specific legal duty of care. Such legal duties of care are not always easy to prove. They may arise in the context of a clear professional relationship (such as that between doctor and patient), or they may sometimes be assumed or implied in strongly similar circumstances, where any reasonable publisher (for example) would have foreseen the risk of injury to that particular reader, and taken suitable precautions to avoid it.
In the leading case of Hedley Byrne v. Heller (1964), the House of Lords confirmed as a general rule that:
if A assumes a responsibility to B to tender him deliberate advice, there could be a liability if the advice is negligently given.
The crucial word in that proposition is ‘assumes’. In that particular case, an advertising agency was retained by a new client for a major advertising campaign, and took out ad space in national newspapers and booked TV advertising slots, all at the agency’s own financial risk. Understandably, the agency sought financial references from the new client’s bank, which the bank duly gave, but ‘without responsibility’. The references turned out not to be reliable and the agency lost a large amount of money. The House of Lords held that a duty of care could exist where a ‘special relationship’ was created, which might happen in the following circumstances:
• where the party seeking information or advice was ‘trusting the other to exercise such a degree of care as the circumstances required’;
• where that trust was reasonable; and
• where the other gave the information or advice ‘when he knew or ought to know that the enquirer was relying on him’.
However, in that particular case, the bank had clearly given the advice ‘without responsibility’, and in the view of the House of Lords that disclaimer was sufficient to avoid liability – they had not ‘assumed’ responsibility.
In the case of a publisher who publishes statements for the whole world to read, it would be difficult to establish a specific legal duty of care unless it could be shown that there was a ‘special relationship’ with a particular reader, or group of readers. This is unlikely to exist in the circumstances of trade publishing, but it may possibly exist in the case of some specialist, professional or STM publishers, who give information or advice to a limited, specific market knowing that those people might reasonably be expected to rely on it. This might particularly be so in the context of a specific advice service (or column) – the second of our two original examples – where answers to subscribers’ queries are held out as being authoritative; a reader or subscriber relying (and known to be relying) on the skill and judgment apparently being offered might well – in the absence of any disclaimer – be able to prove that a sufficient duty of care existed, and claim damages for negligence if he or she suffered loss when the advice turned out to be wrong.
In the first of our two examples above, however – where a mis-statement is published in a textbook circulating generally to a wide readership – it is unlikely that any individual reader would be able to establish a similar duty of care, and negligence would be much harder to prove.
The same considerations would apply to mis-statements published on the Internet. Although statements made on a website will, by definition, be addressed to a very large audience (potentially, the whole world), there may also be instances where, for example, specialist advice is given to a particular individual or a group of Internet users, such that a duty of care could be established.
DISCLAIMERS
Some publishers seek to discourage negligence claims by printing general disclaimers of liability at the front of their books. Such disclaimers are usually unpopular with authors since they imply a lack of confidence in the text, and they are probably of limited legal effect. Even if it can be established that they formed part of the contract of sale (and disclaimers in small print tend not to be noticed at the time) they are still subject to the test of ‘reasonableness’ under the Unfair Contract Terms Act 1977 (see p. 339) or the Unfair Terms in Consumer Contracts Regulations 1999. A court might well find in all the circumstances that the disclaimer was unreasonable – particularly if the publisher could easily have insured against the risk.
A specific disclaimer given in circumstances similar to the Hedley Byrne case above, however, might be effective if it made it clear that no responsibility for the statement(s) was being assumed.
INTRODUCTION
It is not a crime for an author to write obscene material, but it is a crime for a publisher (or anyone else) to publish it. It is also an offence for anyone to have it in their possession, with a view to publication for profit. Although authors are often asked in their publishing contracts to warrant that the material they produce is in no way obscene or indecent, this only gives a limited contractual remedy to the publisher against the author: the criminal offence will still be committed by the publisher and, in some cases, by the distributor, and it is they who will be prosecuted and possibly fined or sent to prison. Publishers should therefore take every possible precaution themselves against publishing obscene or indecent material, however innocently. This applies as much to text as to photographs or other illustrations, and increasingly to computer images (for example, on the Internet) as much as to printed matter.
What is or is not ‘obscene’ has never been defined very clearly. The law is now largely contained in the Obscene Publications Act 1959, and the test of obscenity is now contained in section 1 of that Act. Section 1 provides that an article, or any distinct item contained in an article, is obscene:
if its effect . . . is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, in all the circumstances, to read, see or hear the matter contained or embodied in it.
‘Deprave’ and ‘corrupt’ are strong words. They mean something considerably worse than simply shocking or disgusting, and one conviction (Regina v. Anderson) was overturned in 1971 because the trial judge had wrongly directed the jury that obscenity could mean merely ‘repulsive, filthy, loathsome, indecent or lewd’. An article is not obscene simply because it is repulsive or filthy. The prosecution must prove that its tendency is strong enough actually to deprave and corrupt a significant proportion of its likely audience; in other words, to pervert or corrupt their morals sufficiently for it to constitute a public menace. It is necessary for more than a negligible number of persons to see the material (see R v. Perrin below). Furthermore, the entire article ‘taken as a whole’ must have that tendency, not just one small bit of it.
It is important to note that obscenity is not just about sex. Anything tending to deprave or corrupt may be obscene, including material encouraging the taking of dangerous drugs or glorifying violence, particularly if it is expressly targeted at children or adolescents. However sex usually creeps in somewhere.
OBSCENITY OFFENCES
Publication
It is an offence under section 2 of the Obscene Publications Act 1959 to publish an obscene article. ‘Publish’ includes distribution, circulation, sale, hire or even free gift or loan. It also includes, where the matter is data stored electronically, transmitting that data. Publication therefore includes storing images on a computer and transferring them via the Internet. In R v. Waddon (2000), the Court of Appeal held that, even though the website in question was situated in the United States, publication took place in England because the defendant had transmitted the material to the website from England, which was then transmitted back to England when users there gained access to the website. However, the court left open the question of whether publication would take place in England if the website was not intended to be accessible there, and suggested that this would depend on issues of intention and causation in relation to where publication should take place. TV and broadcasting are also covered under the 1990 Broadcasting Act. In 2002, in a similar case involving a website depicting ‘people covered in faeces, coprophilia or coprophagia, and men involved in fellatio’, the Court of Appeal further held that the jury only had to be satisfied that there was a likelihood of vulnerable persons seeing the material, not that such persons had actually seen the material, and also that the Crown in such a case did not have to prove where the major steps to publication had taken place (R v. Perrin). In that case, there was sufficient evidence of publication in the UK for jurisdiction to be satisfied.
The 1964 Obscene Publications Act added a further offence of having an obscene article for publication for gain, which extends the threat of criminal penalties to printers, distributors, wholesalers, shopkeepers and booksellers. There may, however, be a defence where the person did not inspect the articles and had no reason to suspect they might be obscene (see below, p. 230).
On conviction for either offence (publication or possession), a sentence of up to five years imprisonment, with an unlimited fine, may be imposed.
DEFENCES TO OBSCENITY
Public good
No defence of literary or artistic merit had existed prior to the 1959 Act. It is now a defence under section 4 of the Act to prove:
that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
‘Other objects’ includes sociological, ethical and educational merits, but must fall within the same general area as those listed. Mere therapeutic relief of sexual tension (seriously argued in one case) is not an object of sufficiently general concern.
The burden of proof is on the publishers, but they may call expert witnesses in their support. Penguin Books used the defence of public good successfully shortly after the Act was passed, in the 1961 trial of D.H. Lawrence’s Lady Chatterley’s Lover, and a succession of expert witnesses – including the Bishop of Woolwich – testified to the literary and sociological merit of the work ‘taken as a whole’. Expert evidence may even be admitted to establish that a work, far from promoting or glorifying obscenity, deliberately shocks and disgusts so much that the likely audience will only be repelled: this defence was used (ultimately successfully) by Calder & Boyars Ltd in 1969 to defend the book Last Exit to Brooklyn, which contained graphic depictions of drug abuse, senseless violence and sexual perversion. It seems likely now that any serious work of literature will have a strong defence, however graphic its contents, and more recent works, such as Brett Easton Ellis’s American Psycho (and its Hollywood film adaptation), have not even been prosecuted.
Indeed, the Crown Prosecution Service (CPS) appears to be recognising the increasing difficulty of securing a jury conviction on the 1959 test. In 1997, the library of the University of Central England in Birmingham was raided by the West Midlands Police pornography squad who confiscated a book about the photographer Robert Mapplethorpe and his work, and threatened to imprison the University’s Vice-Chancellor unless he agreed to the destruction of two photographs in the book that were said to be obscene. However, the University stood their ground and, after a year of uncertainty, the Crown Prosecution Service decided not to prosecute and the book was returned to the University’s shelves. Equally, the CPS dropped their case on the day the trial was due to begin (June 2009) against a civil servant accused of publishing an allegedly obscene story entitled ‘Girls (Scream) Aloud’ focused on the rape, mutilation and murder of the popular group Girls Aloud.
Arguably, the Act is also at odds with the more liberal British Board of Film Classification guidelines. It must also be interpreted in line with the Human Rights Act 1998, which, as we saw in Chapter 1, has been in force since 2000 and incorporates various important rights and freedoms set out in the European Convention on Human Rights: freedom of expression (Article 10) in particular. This freedom is, however, subject to such restrictions as are ‘necessary in a democratic society’, such as the protection of health or morals.
Intermediary liability
Under section 2 of the 1959 Act and section 1 of the 1964 Act it is a defence for someone found in possession of an obscene article to prove that:
(1) they had not examined the article; and
(2) they had no reasonable cause to suspect it was obscene.
Both conditions must be satisfied – once a wholesaler or bookseller has actually examined (in other words, personally inspected) an article it will be no defence to claim that they did not realise that it was obscene. This defence is therefore more likely to protect printers and distributors than booksellers, most of whom ‘examine’ their stock at some point, even if only to look at the cover or read the blurb.
INDECENT PHOTOGRAPHS
Although something which is ‘indecent’ is by definition less offensive than something which is ‘obscene’, special considerations apply to publications containing indecent pictures of children. Under the Protection of Children Act 1978 it is an offence to take, permit to be taken, make (e.g. by downloading from the Internet), distribute or show, possess with a view to distribution, or advertise, any indecent photograph of a child under the age of 18. The age limit was increased from 16 as of 1 May 2004 under the Sex Offences Act 2003, subject to the defence discussed below regarding photographs of children aged 16 or 17. The Criminal Justice and Public Order Act 1994 extended the definition of ‘photograph’ for these purposes to include any ‘pseudo-photograph’, for example, a computer-generated image on the Internet (it has also made offences under the 1978 Act serious arrestable offences).
Whether or not a photograph is ‘indecent’ under the 1978 Act is to be decided by a jury according to ‘the recognised standards of propriety’. These standards may of course change, which makes the task for publishers of illustrated or children’s books of keeping within the law particularly difficult. Subject to the defences below, the circumstances of the photography or the publication, or the motivation of the photographer, are all irrelevant: in one 1988 case, despite the fact that the 14-year-old girl concerned had clearly consented to the photographs being taken (in order to further her fashion career), and was photographed in the presence of her family and boyfriend, two or three of the photographs – showing her lightly clad, in underwear only, and ‘in a provocative pose’ – were held by a jury to be indecent.
The American photographer Tierney Gearon sparked an uncomfortable controversy when images of her own children playing naked in front of adults, and sometimes urinating or dressed in animal heads, were exhibited at the Saatchi Gallery in Hampstead. Scotland Yard’s obscene publications unit threatened to seize the photographs unless they were removed from the gallery, and also warned that thousands of copies of her book, I Am a Camera, should be withdrawn from bookshops by the publisher, or all concerned would face action under the 1978 Act. The Crown Prosecution Service lifted the threat of prosecution on the grounds that there was insufficient evidence to secure a conviction.
The Sex Offences Act 1993 offers a specific defence regarding photographs of children aged 16 or 17 where the following conditions are satisfied:
• at the time of the offence, the child and the defendant were married or civil partners of each other, or lived together as partners in an enduring family relationship;
• (in relation to the offences of taking or making indecent photographs, and possessing indecent photographs with a view to distribution only) the child consented to the photograph or the defendant reasonably believed that the child consented; and
• the photograph did not show a person other than the child and the defendant.
In order to reassure police officers and others (e.g. ISPs) involved in identifying and securing data for evidential and investigative purposes that they will not be prosecuted, the Act also creates a limited defence where a photograph is ‘made’ (i.e. usually, by computer download) for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings.
In spite of the outcome of cases like the Gearon photos, and the above defence relating to 16- and 17-year-olds, at times of public concern about Internet pornography, paedophile rings and child abuse, it would be wise to take advice before publishing photographs of children that a jury might feel were indecent, particularly if they are in any sense provocative or suggestive.
Legislation came into force in 2010 making it a criminal offence for a person to be in possession of a prohibited image of a child. The legislation is targeted at criminalising possession of images (such as cartoons, computer-generated images or drawings) which depict sexual abuse of children. It has implications for any industry which may inadvertently take possession of material containing such images, for example publishers receiving unsolicited manuscripts or Internet intermediaries who may host such material.
There are three elements to the definition of ‘prohibited image of a child’, which are designed to set a high threshold:
(1) The image must be pornographic. The definition is tied to the assumed purpose behind producing the image: the purpose must be solely or principally for the purpose of sexual arousal. This implements the government’s intention to avoid criminalising legitimate works of art, literature or science, news and documentary programmes.
(2) The image must portray an act of sexual abuse involving a child. There is a list of six such acts, which was introduced to provide ‘clarity and precision’.
(3) The image has to be grossly offensive, disgusting or otherwise of an obscene character. This matches the test in the Obscene Publications Act, so that this legislation would not go beyond that Act.
There is a hosting exception in the legislation which states that a service provider is not guilty if he had no actual knowledge when the information was provided that it contained offending material, or, upon obtaining actual knowledge of such offending material, he quickly removed it or disabled access to it. Defences were also introduced to meet the concerns expressed by broadcasters and those in the Internet industry to ensure that there are adequate defences to cover those who need to have contact with the material in the course of their legitimate work. Those with legitimate reasons to possess the images include law enforcers, broadcasters and those involved in the Internet industry (e.g. filter systems developers).
There is a defence if a person is in possession of an image but does not see it and was unaware of its nature. There is also a defence for a person who receives an image unsolicited or stumbles across it but does not keep it for an unreasonable time, i.e. acts quickly to delete it or otherwise get rid of it.
The information society services defences required by the E-Commerce Directive (i.e. those for mere conduits, caching and hosts) also apply, provided those roles are passive and conducted without knowledge of the offending material. To take advantage of the defence hosts must have no actual knowledge of the images and remove the material expeditiously on obtaining actual knowledge.
POSTING INDECENT OR OBSCENE MATTER
Under section 85 of the Postal Services Act 2000, it is an offence to send any indecent or obscene article by post. It is also an offence under section 4 of the Unsolicited Goods and Services Act 1971 to send unsolicited material describing human sexual techniques, or unsolicited advertisements for such material.
After much campaigning by interested parties, the common law offences of blasphemy and blasphemous libel were abolished by section 79 of the Criminal Justice and Immigration Act 2008 which came into force in July 2008. Following this, section 73 of the Coroners and Justice Act 2009 came into force in January 2010. This section abolished the common law offences of sedition and seditious libel, criminal libel and obscene libel.
Under section 1 of the Malicious Communications Act 1988, it is an offence for a person to send another person a letter, electronic communication or article which conveys an indecent or grossly offensive message, a threat, or information which is false and known to be false by the sender. The message must cause distress or anxiety to the recipient. There is no requirement for the message to have reached the intended recipient.
It will be a defence for the sender to show that the threat was used to reinforce a demand made by him on reasonable grounds, and that he believed and had reasonable grounds to believe that the use of the threat was a proper means of reinforcing the demand.
The Communications Act 2003 provides for a similar scenario. It will be an offence to send, or cause to be sent, by electronic communications a message or other material that is grossly offensive or of an indecent, obscene or menacing character. A communication will be ‘grossly offensive’ if it causes gross offence to those to whom it relates, who need not be the recipients (DPP v. Collins 2006).
Both the Communications Act 2003 and the Malicious Communications Act 1988 carry a maximum prison sentence of six months, or a fine, or both.
INCITEMENT OF HATRED ON THE GROUNDS OF RACE, RELIGION OR SEXUAL ORIENTATION
Most public order offences, including the offences of incitement of hatred on the grounds of race, religion or sexual orientation are dealt with under the Public Order Act 1986.
INCITING HATRED ON THE GROUNDS OF RACE
It is an offence to stir up racial hatred by, among other things, using threatening, abusive or insulting words or behaviour, publishing, displaying, distributing or possessing written material which is threatening, abusive or insulting, or distributing or showing or playing a recording of visual images which involves the use of threatening, abusive or insulting words or behaviour.
‘Racial hatred’ is defined in the 1986 Act as meaning ‘hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins’ (the requirement that such a group be in Great Britain was repealed by the Anti-terrorism, Crime and Security Act 2001). Examples of racial groups include Sikhs, Jews, Romany gypsies, Irish travellers and Africans. Note the requirement that the medium used should be ‘threatening, abusive or insulting’. Words which are simply annoying, rude or offensive will not necessarily be insulting or abusive (although they are capable of being so). Furthermore, there must also be either:
• a positive intention to stir up racial hatred; or
• a likelihood that it will be stirred up.
A publisher would have a defence when they did not intend to incite hatred and are not aware that a publication may do so. However, there is no defence where a publisher turns a blind eye to the contents of a publication. Both for an author and publisher, however, intention is not essential, provided that the publication is likely to stir up hatred. However, a mere possibility does not amount to likelihood. The Crown Prosecution Service’s (CPS) guidelines state that although it is the CPS’s policy to ‘prosecute racist and religious crime fairly, firmly and robustly’, freedom of expression, as a fundamental part of society should also be borne in mind. Freedom of expression includes discussing ideas that may offend, shock or disturb, and it is important that people are able to robustly exchange views. By way of example, in early 2005, the former talk-show host Robert Kilroy-Silk caused an uproar by referring to Arabs as ‘suicide bombers’ and ‘limb-amputators’ in an article in the Sunday Express, but the CPS declined to prosecute, having determined that he had not intended to stir up racial hatred, and nor were his actions likely to do so. Stirring up racial hatred may be punished on conviction by up to two years’ imprisonment or an unlimited fine, or both.
INCITING HATRED ON THE GROUNDS OF RELIGION
It is an offence to stir up racial hatred on the grounds of religion. This is defined as hatred against a group of persons by reference to religious belief or lack of religious belief. Among other things, it is an offence to use threatening words or behaviour, or display any written material which is threatening if you thereby intend to stir up religious hatred. It is also an offence to publish or distribute written material which is threatening if you thereby intend to stir up religious hatred. Note that for this offence it is not enough that the publications are insulting or abusive, and intention is an essential requirement, so it is not sufficient to cause an offence if the publication is merely likely to cause religious hatred. Moreover, the Act provides for the protection of freedom of expression, so prohibits any action being taken which ‘prohibits or restricts discussion, criticism or expression of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents [. . .] or proselytising or urging adherents of a different religion or belief system to cease practicing their religion or belief system’. As such, the offence will only be caused by a publisher in very clear cut situations. Acts intended to stir up religious hatred may be punished on conviction by up to seven years’ imprisonment or a fine or both.
INCITING HATRED ON THE GROUNDS OF SEXUAL ORIENTATION
This offence is similar to the offence of inciting hatred on the grounds of religion, and is more difficult to be caused by a publisher, unless the facts are clear cut. The offence is described as ‘hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both)’. Again for an offence to be committed, one must use or publish words which are threatening, and intend to stir up hatred. Insulting or abusive words are insufficient to cause an offence, and neither is likelihood of hatred being caused. As with the offence of inciting hatred on the grounds of religion, the Act contains a provision for the safeguarding of freedom of expression which states that: ‘discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred’ and ‘. . . any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred’.
Publishing comments on cases which are currently being tried, or are due to be tried, can carry a risk of a fine or even imprisonment for contempt of court. The law is designed to protect the administration of justice by preventing the jury, judge and witnesses from being influenced by external factors, such as prejudicial media reporting.
Under the Contempt of Court Act 1981, a person will be guilty of contempt where the publication by that person creates a substantial risk that the course of justice of active court proceedings will be seriously impeded or prejudiced. This is known as ‘the strict liability rule’ and it is irrelevant whether or not the publisher intended to interfere with the course of justice.
Proceedings are ‘active’ from the moment a case is scheduled for a hearing, or an arrest is made. Note that there must be a substantial risk of serious prejudice. ‘Substantial’ here means more than remote and not minimal. The prejudice has to be so serious that it could alter the outcome of the trial. Thus, the more distant the trial or the more peripheral the material published the less likely that a contempt will have been committed. However, this must be balanced by the fact that online material is easily searchable at a later time.
The courts take into account a number of factors in deciding if there has been a substantial risk of serious prejudice, including
• The likelihood of the publication being read by a potential juror. It is worth finding out if the publication will circulate in the relevant jury catchment area and, if so, how many copies will circulate.
• The likely impact of the publication on an ordinary reader at time of publication. The more prominent, striking, memorable and novel the publication, the greater the risk that it would prejudice a juror. Mere discussion of the issues, particularly those already in the public domain, rather than specific allegations which could influence a jury’s decision, are lower risk.
• The length of time between the publication and likely trial date. The longer the period, the lower the risk. This is known as ‘the fade factor’. In a 1986 case relating to a News of the World article about cricketer Ian Botham’s conduct on tour about which there was a libel trial, the court refused to grant an injunction against the newspaper because the trial was 10–11 months away.
In general, the highest risk cases relate to prejudicial publications about criminal proceedings which are soon to be heard before a jury. It is usually low risk for civil proceedings which are to be tried before a High Court or Court of Appeal judge.
The facts of Attorney-General v. ITV Central (2008) are a telling reminder, albeit in relating to a broadcast. During the morning of the first day of a murder trial, ITV had broadcast a 23-second news item stating:
Five men are due in court later charged with the murder of an amateur footballer. Kevin Noon’s body was found near a pub . . . He was a drugs courier for a group affiliated with a notorious gang . . . One of the defendants [Mr X] is already serving life for the murder of a soldier three years ago.
As the court said, ‘One of the first things that journalists involved in court reporting are told is that in circumstances such as these previous convictions should not be broadcast’. ITV was fined £25,000 and paid the Attorney-General’s costs plus the £37,000 wasted costs caused by the postponement of the trial by two weeks. In mitigation over this ‘blindingly obvious’ error, ITV had promptly apologised, immediately offered to pay the costs due to the adjournment, dismissed staff, implemented a mandatory refresher course and changed their internal systems so that two people would always be involved in the pre-broadcast decision-making process.
As the Sunday Mirror found out to its detriment in the 2002 Leeds United case, contempt of court can arise by publishing an interview with a member of a victim’s family. Jonathan Woodgate and Lee Bowyer were accused of attacking a student outside a nightclub. From the start of the trial, the prosecution and the judge emphasised to the jury that there was no evidence that the attack was racially motivated. About eight weeks into the trial of the footballers, the newspaper interviewed the victim’s father giving an assurance that the interview, in which he said he believed the attack had been racially motivated, would not be published until after the trial. However, the paper went ahead and published the interview. The judge stopped the trial, ruling that there was a ‘clear and substantial risk’ that the case had been prejudiced by the publication of the interview. The first trial was estimated to have cost over £1 million (a subsequent (also very costly) retrial exonerated the two players). Although the Attorney-General decided that the paper’s former editor, who had resigned over the affair, would not be prosecuted, the Sunday Mirror was fined £75,000 and ordered to pay the Attorney-General’s costs of £54,000.
Two years later, the Daily Star was fined £60,000, plus costs, for failing to heed the Attorney-General’s guidelines issued after the alleged rape of a 17-year-old girl at the Grosvenor Hotel by a gang of footballers, requesting the media not to publish any material that could prejudice the identification of the suspects by the complainant. The paper’s clear identification of two players as potential defendants, at a time when the complainant had not clearly identified her alleged attackers and identification was a key issue, was held to create a substantial risk of serious prejudice. The players denied the allegations, and in the event no criminal charges were brought against them or anyone else.
Although liability is ‘strict’, there is a ‘public interest’ defence to contempt where:
• a publication was made as, or as part of, a discussion in good faith of public affairs (or other matters of public interest), and
• the risk of impediment or prejudice to the particular proceedings is merely incidental to the discussion.
The editor of the Daily Mail was able to rely on this defence in the 1982 case of Attorney-General v. English. The paper had published an article in support of a ‘Pro-Life’ candidate which spoke disparagingly of what was described as the common practice of doctors deliberately failing to keep deformed children alive. Contempt proceedings were instigated over alleged prejudice to the trial of a doctor who had allowed a Down’s syndrome baby to die. Importantly, the article had been published during the trial. However, the court held that despite there being a substantial risk of serious prejudice, there was no contempt as the risk of prejudice was merely incidental to the main theme of the discussion, and the defence succeeded.
It should be noted that publishers are allowed to publish a fair and accurate report of legal proceedings held in public where the publication is contemporaneous and in good faith. Of course, a publisher must not publish details of a trial which is held in private or subject to reporting restrictions. Similarly, if a publisher becomes aware of a court order against a person or another publisher prohibiting the publication of certain e.g. confidential information, then the first publisher must not breach the injunction even if it is not a named party to the order. It is contempt to disobey a court order.
A key part of the justice system is the jury and the Contempt of Court Act protects jurors from feeling that what they say in the jury room might be exposed. It is contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed or votes cast by members of a jury in the course of their deliberations.
Publishers should also be aware that it is contempt to use a tape recorder or similar device in court without the permission of the court, and publishing a recording by such a device is prohibited. It is also contempt to bring such devices into court.
In this regard, in 2011 the Lord Chief Justice issued a Practice Guidance note on the use of live text-based communications (such as mobile email and social media, for example Twitter) in court. The general rule is that mobile phones must be turned off. An application can be made to the court to activate and use a mobile phone, small laptop or similar piece of equipment solely in order to make live text based communications of the proceedings. Such an application may be made formally or informally (i.e. by asking the judge through the court staff). The court will decide if such use ‘may interfere with the proper administration of justice’. The most obvious purpose of getting permission is to enable the media to pursue a fair and accurate report of the proceedings, in accordance with the principle of open justice. There is an absolute prohibition on taking photographs in court.
If a publisher is aware of potentially prejudicial UGC on its website, the prudent thing is generally to take it down. In some cases, the publisher will be put on notice by the prosecution or defence. Strict liability contempt is particularly concerning for publishers of UGC.
The defences to contempt include innocent publication or distribution. The publisher of a UGC website would have to prove that:
• as the publisher, at the time of publication (having taken all reasonable care), he did not know and has no reason to suspect that relevant proceedings were active; or
• as the distributor, at the time of distribution (having taken all reasonable care), he did not know that it contained such matter and had no reason to suspect that it was likely to do so.
If the website owner had invited users to comment on particular legal proceedings or been put on notice of the proceedings by the prosecution or defence, the website owner would not be able to show that it had no reason to suspect that the proceedings were active.
SUMMARY CHECKLIST: OTHER RISKS
• Is this a malicious falsehood?
• Is it negligent to make this statement? Do we owe any duty of care to particular readers?
• Might this be obscene? Taken as a whole, would it deprave or corrupt?
• Are we publishing it, or in possession of it?
• Can it be justified as being for the public good (for example on grounds of literary merit)?
• Are we disseminating it innocently?
• Would a jury think this photograph was indecent?
• Is this an incitement to racial or religious hatred or on grounds of sexual orientation?
• By publishing this now, would we be in contempt of court? Would publication by us create a serious risk of seriously prejudicing active court proceedings?