UK Libel Laws

Writersworld Newsletter - Issue No. 10

This article is published by kind permission of the Writers' & Artists' Yearbook published by A & C Black, 33 Bedford Row, London WC1R 4JH and its author Antony Whitaker, former Legal Manager at Times Newspapers Limited who can now be contacted at THEODORE GODDARD, 150 Aldersgate Street, London EC1A 4EJ. Any writer should be aware of the law of libel. Antony Whitaker gives an outÐline of the main principles, concentrating on points, which are most frequently misunderstood. But this article is no more than that, and specific legal advice should be taken when practical problems arise. This article was published in the 2000 edition of Writers' & Artists' Yearbook and will be revised when the 2002 edition is published

ENGLAND AND WALES

The law discussed is the law of England and Wales. Scotland has its own, albeit somewhat similar, rules. At the time of going to press, Parliament had passed the Defamation Act 1996, but only limited parts of it had been brought into force. The purpose of the Act is mainly to streamline and simplify libel litigation. In the paragraph below Mr. Whitaker provides a summary of the main differences between the libel laws in England and Wales and those of Scotland.

THE MAIN DIFFERENCES BETWEEN ENGLISH AND SCOTTISH LIBEL LAW

Much of the terminology of the Scots law of defamation differs from that of English law, and in certain minor respects the law itself is different. North of the border, libel and slander are virtually indistinguishable, both as to the nature of the wrongs and their consequences; and Scots law does not recognise the offence of criminal libel. Where individual English litigants enjoy absolute privilege for what they say in court, their Scottish counterparts have only qualified privilege. 'Exemplary', or 'punitive', damages are not awarded by the Scottish courts. Until recently, libel cases in Scotland were for the most part heard by judges sitting alone, but there is now a marked trend towards trial by jury, which has been accompanied by a significant increase in the levels of damages awarded.

LIBEL: LIABILITY TO PAY DAMAGES

English law draws a distinction between defamation published in permanent form and that, which is not. The former is libel, the latter slander. 'Permanent form' includes writing, printing, drawings and photographs and radio and television broadcasts. It follows that it is the law of libel rather than slander, which most concerns writers and artists professionally, and the slightly differing rules applicable to slander will not be mentioned in this article.

Publication of a libel can result in a civil action for damages, an injunction to prevent repetition and/or in certain cases a criminal prosecution against those responsible, who include the author (or artist or photographer), the publishers and the editor, if any, of the publication in which the libel appeared. 'Innocent disseminators', such as printers, distributors, broadcasters, Internet service providers and retailers, who can show they took reasonable care and had no reason to believe what they were handling contained a libel, are now protected under the 1996 Act. Prosecutions are rare. Certain special rules apply to them and these will be explained below after a discussion of the question of civil liability, which in practice arises much more frequently.

Libel claims do not qualify for legal aid, although the closely analogous remedy of malicious falsehood does. Most libel cases are usually heard by a judge and jury, and it is the jury, which decides the amount of any award, which is tax-free. It is not necessary for the plaintiff to prove that he or she has actually suffered any loss, because the law presumes damage. While the main purpose of a libel claim is to compensate the plaintiff for the injury to his or her reputation, a jury may give additional sums either as 'aggravated' damages, if it appears a defendant has behaved malevolently or spitefully, or as 'exemplary', or 'punitive', damages where a defendant hopes the economic advantages of publication will outweigh any sum awarded. Damages can also be 'nominal' if the libel complained of is trivial. It is generally very difficult to forecast the amounts juries are likely to award, though recent awards against newspapers have disclosed a tendency towards considerable generosity. The Court of Appeal has power to reduce excessive awards of damages.

In an action for damages for libel, it is for the plaintiff to establish that the matter he or she complains of:

Has been published by the defendant
Refers to the plaintiff
Is defamatory

If this is done, the plaintiff establishes a prima facie case. However, the defendant will escape liability if he or she can show he has a good defence.

THERE ARE FIVE DEFENCES TO A LIBEL ACTION. THEY ARE:

Justification
Fair Comment
Privilege
Offer of Amends: s. 4 of the Defamation Act, 1952, to be replaced by ss. 2-4 of the Defamation Act, 1996
Apology, etc, under the Libel Acts, 1843 and 1845.
A libel claim can also become barred under the Limitation Acts, as explained below. These matters must now be examined in detail.

THE PLAINTIFF'S CASE:

The meaning of 'published'

'Published' in the legal sense means communicated to a person other than the plaintiff. Thus the legal sense is wider than the lay sense but includes it. It follows that the content of a book is published in the legal sense when the manuscript is first sent to the publishing firm just as much as it is when the book is later placed on sale to the public. Subject to the 'innocent dissemination' defence referred to above, both types of publication are sufficient for the purpose of establishing liability for libel, but the law differentiates between them, since the scope of publication can properly be taken into account by the jury in considering the actual amount of damages to a yard. Material placed on the Internet is unquestionably 'published' there, and the extent it of publication can be judged by the number of visits made to the relevant web site.

ESTABLISHING IDENTITY

The plaintiff must also establish that the matter complained of refers to him or her. It is of course by no means necessary to mention a person's name before it is clear that he or she is referred to. Nicknames by which he or she is known or corruption's of his name are just two ways in which his or her identity can be indicated. There are more subtle methods. The sole question is whether the plaintiff is indicated to those who read the matter complained of. In some cases he or she will not be unless it is read in the light of facts known to the reader from other sources, but this is sufficient for the plaintiff's purpose. The test is purely objective and does not depend at all on whether the writer intended to refer to the plaintiff.

It is because it is impossible to establish reference to any individual that generalisations, broadly speaking, are not successfully actionable. To say boldly 'All lawyers are crooks' does not give any single lawyer a cause of action, because the statement does not point a finger at any individual.

However, if anyone is named in conjunction with a generalisation, then it may lose its general character and become particular from the context. Again, if one says 'One of the X Committee has been convicted of murder' and the X Committee consists of, say, four persons, it cannot be said that the statement is not actionable because no individual is indicated and it could be referring to any of the committee. This is precisely why it is actionable at the suit of each of them, as suspicion has been cast on all.

DETERMINING WHAT IS DEFAMATORY

It is for the plaintiff to show that the matter complained of is defamatory. What is defamatory is decided by the jury except in the extreme cases where the judge rules that the words cannot bear a defamatory meaning. Various tests have been laid down for determining this. It is sufficient that any one test is satisfied. The basic tests are:

Does the matter complained of tend to lower the plaintiff in the estimation of society?
Does it tend to bring him or her into hatred, ridicule, contempt, dislike or disesteem with society?
Does it tend to make him or her shunned or avoided or cut off from society? The mere fact that what is published is inaccurate is not enough to involve liability; it is the adverse impact on the plaintiff's reputation that matters. For example, merely to overstate a person's income is not defamatory; but it will be if the context implies he has not fully declared it to the tax authorities.

'Society' means right-thinking members of society generally. It is by reference to such people that the above tests must be applied. A libel action against a newspaper which had stated that the police had taken a statement from the plaintiff failed, notwithstanding that the plaintiff gave evidence that his apparent assistance to the police (which he denied) had brought him or her into grave disrepute with the underworld. It was not by their wrongheaded standards that the matter fell to be judged.

Further, it is not necessary to imply that the plaintiff is at fault in some way in order to defame him or her. To say of a woman that she has been raped or of someone that he is insane imputes to them no degree of blame, but nonetheless both statements are defamatory. Lawyers disagree over whether the claim that an individual is 'ugly' is, or could be, defamatory.

Sometimes a defamatory meaning is conveyed by words, which on the face of them have no such meaning. 'But Brutus is an honourable man' is an example. If a jury finds that words are meant ironically they will consider this ironical sense when determining whether the words are defamatory. In deciding, therefore, whether or not the words are defamatory, the jury seeks to discover what, without straining the words or putting a perverse construction on them, they will be understood to mean. In some cases this may differ substantially from their literal meaning.

Matter may also be defamatory by innuendo. Strictly so called, an innuendo is a meaning that words acquire by virtue of facts known to the reader but not stated in the passage complained of. Words, quite innocent on the face of them, may acquire a defamatory meaning when read in the light of these facts. For example, where a newspaper published a photograph of a man and a woman, with the caption that they had just announced their engagement, it was held to be defamatory of the man's wife since those who knew that she had cohabited with him or her were led to the belief that she had done so only as his mistress. The newspaper was unaware that the man was already married, but some of its readers were not. In general, however, imputations of unchastity against members of either sex would today be regarded as far less defamatory than they were in 1929 when this case was decided.

DEFENCES TO A LIBEL ACTION

Justification
English law does not protect the reputation that a person either does not or should not possess. Stating the truth therefore does not incur liability, and the plea of justification - namely, that what is complained of is true in substance and in fact - is a complete answer to an action for damages. However, this defence is by no means to be undertaken lightly. For instance, to prove one instance of using bad language will be insufficient to justify the allegation that a person is 'foulÐmouthed'. It would be necessary to prove several instances, and the defendant is obliged in most cases to particularise in his pleadings giving details, dates and places. However, the requirement that the truth of every allegation must be proved is not absolute, and is qualified by the 'multiple charge - no worse off' defence. This applies where two or more distinct charges are levelled against a plaintiff, and some of what is said turns out to be inaccurate. If his or her reputation in the light of what is shown to be true is made no worse by the unprovable defamatory allegations - for example, mistaken accusations that a convicted pickpocket and car thief is also a shoplifter - the publisher will be safe. This is the extent of the law's recognition that some individuals are so disreputable as to be beyond redemption by awards of damages regardless of what is said about them. Subject to this, however, it is for the defendant to prove that what he or she has published is true, not for the plaintiff to disprove it, though if he can do so, so much the better for her.

One point requires special mention. It is insufficient for the defendant to prove that he or she has accurately repeated what a third person has written or said or that such statements have gone uncontraÐdicted when made on occasions in the past. If X writes 'Y told me that Z is a liar', it is no defence to an action against X merely to prove that Y did say that. X has given currency to a defamatory statement concerning Z and has so made it his own. His only defence is to prove that Z is a liar by establishing a number of instances of Z's untruthfulness. Nor is it a defence to prove that the defendant genuinely believed what he or she published to be true. This might well be a complete answer in an action, other than a libel action, based on a false but non-defamatory statement. For such statements do not incur liability in the absence of fraud or malice which, in this context, means a dishonest or otherwise improper motive. Bona fide belief, however, may be relevant to the assessment of damages, even in a libel action.

Special care should be taken in relation to references to a person's convictions, however accurately described. Since the Rehabilitation of Offenders Act, 1974, a person's convictions may become 'spent' and thereafter it may involve liability to refer to them. Reference to the Act and orders thereunder must be made in order to determine the position in any particular case.

FAIR COMMENT

It is a defence to prove that what is complained of is fair comment made in good faith and without malice on a matter of public interest. 'Fair' in this context means 'honest'. 'Fair comment' means therefore the expression of the writer's genuinely held opinion. It does not necessarily mean opinion with which the jury agrees. Comment may therefore be quite extreme and still be 'fair' in the legal sense. However, if it is utterly perverse the jury may be led to think that no one could have genuinely held such views. In such a case the defence would fail, for the comment could not be honest. 'Malice' here includes the popular sense of personal spite, but covers any dishonest or improper motive.

The defence only applies when what is complained of is comment as distinct from a statement of fact. The line between comment and fact is notoriously difficult to draw in some cases. Comment means a statement of opinion. The facts on which comment is made must be stated together with the comment or be sufficiently indicated with it. This is merely another way of saying that it must be clear that the defamatory statement is one of opinion and not of fact, for which the only defence would be the onerous one of justification. The exact extent to which the facts commented on must be stated or referred to is a difficult question, but some help may be derived in answering it by considering the purpose of the rule, which is to enable the reader to exercise his own judgement and to agree or disagree with the comment. It is quite plain that it is not necessary to state every single detail of the facts. In one case it was sufficient merely to mention the name of one of the Press lords in an article about a newspaper though not one owned by her. He was so well known that to mention his name indicated the substratum of fact commented upon, namely his control of his group of newspapers. No universal rule can be laid down, except that, in general, the fuller the facts set out or referred to with the comment, the better. All these facts must be proved to be true subject, however, to the flexibility of the 'proportionate truth' rule. This means that the defence remains available even if, for example, only three out of five factual claims can be proved true, provided that these three are by themselves sufficient to sustain, and are proportionate to, the fairness of the comment. The impact of the two unproven claims would probably fall to be assessed in accordance with the 'multiple charge -no worse off' rule in justification, set out above.

The defence only applies where the matters commented on are of public interest, i.e. of legitimate concern to the public or a substantial section of it. Thus the conduct of national and local government, international affairs, the administration of justice, etc, are all matters of public interest, whereas other people's private affairs may very well not be, although they undoubtedly interest the public, or provoke curiosity.

In addition, matters of which criticism have been expressly or implicitely invited, such as publicly performed plays and published books, are a legitimate subject of comment. Criticism need not be confined merely to their artistic merit but equally may deal with the attitudes to life and the opinions therein expressed.

It is sometimes said that a man's moral character is never a proper subject of comment for the purpose of this defence. This is certainly true where it is a private individual who is concerned, and some authorities say it is the same in the case of a public figure even though his or her character may be relevant to his or her public life. Again, it may in some cases be exceeding the bounds of fair comment to impute a dishonourable motive to a person, as is frequently done by way of inference from facts. In general, the imputation is a dangerous and potentially expensive practice.

PRIVILEGE

Privilege in the law of libel is either 'absolute' or 'qualified', and denotes the two levels of protection from liability afforded, in the public interest, to defamatory statements made on certain occasions. Absolute privilege - where the individual defamed has no remedy whatever - has applied to Parliamentary papers published by the direction of either House, or full republications thereof, since early in the nineteenth century. Following the implementation in April 1999 of section 14 of the 1996 Defamation Act, this privilege also applies to fair, accurate and contemporaneous reports of public judicial proceedings in the United Kingdom, the European Courts of Justice and Human Rights, and any international criminal tribunal established by the Security Council.

Qualified privilege confers protection provided publication is made only for the reason that the privilege is given and not for some wrongful or indirect motive. Under section 15 of the 1996 Act, also implemented in April 1999, it applies to fair and accurate reports of public proceedings before a legislature, a court, a government inquiry and an international organisation or conference anywhere in the world, and of certain documents, or extracts from such documents, issued by those bodies. While there is no requirement to correct or publish explanations concerning these reports, such an obligation does arise under section 15 in respect of a separate category of reports of notices issued by various bodies within the European Community and of proceedings of certain bodies or organisations within the United Kingdom. Apart from the Act, such privilege also attaches to extracts from Parliamentary papers and fair and accurate reports of Parliamentary proceedings.

This list of privileged occasions is by no means exhaustive, and the second category may now be expanded by an order of the Lord Chancellor. The privilege defence is extended to the media generally, rather than being restricted, as it was hitherto, simply to newspapers.

OFFERS OF AMENDS UNDER THE 1952 AND 1996 ACTS

Section 4 of the 1952 Act was still in force at the time of going to press, but it is due to be replaced by sections 2, 3 and 4 of the 1996 Act, probably at the beginning of the millennium. The 1952 Act affords a degree of protection to the publisher of an 'innocent' defamation. 'Innocent' is narrowly defined: it means simply that the publisher, despite having exercised reasonable care, did not know that what he said might be read as a reference to the plaintiff - e.g. through an improbable coincidence of name - or that circumstances existed which made an otherwise innocuous statement defamatory - e.g. by mistakenly depicting a married lady as her husband's 'fiance', thus implying that she lived with him or her as his mistress rather than as his wife. This defence has proved somewhat rigid and unworkable over the years, mainly because of its technicality and the fact that it has to be put forward, together with a correction and an apology, as soon as the potentially defamatory impact of what has appeared has been drawn to the publisher's attention.

When they are operative, sections 2, 3 and 4 of the new Act will offer a rather more flexible method of nipping in the bud potential libel actions by those who have been unintentionally defamed. The range of libel meanings for which the new defence will cater is much wider than that covered by the currents. 4; and though it envisages the payment of damages (which the current provision does not) as well as costs, together with the offer of a correction and apology, the damages figure will be fixed by a judge if the parties cannot agree. He or she will do this bearing in mind the generosity of the correction and apology, and the extent of its publication. While recourse to this defence will exclude reliance on the defences of justification, privilege and fair comment, it is likely to offer a far greater incentive to settle complaints than the present provision, and should save substantially on costs.

APOLOGY UNDER 1843 AND 1845 ACTS

This defence is rarely utilised, since if any condition of it is not fulfilled, the plaintiff must succeed and the only question is the actual amount of damages. It only applies to actions in respect of libels in newspapers and periodicals. The defendant pleads that the libel was inserted without actual malice and without gross negligence and that before the action commenced or as soon afterwards as possible he inserted a full apology in the same newspaper, etc, or had offered to publish it in a newspaper, etc, of the plaintiff's choice, where the original newspaper is published at intervals greater than a week. Further a sum must be paid into court with this defence to compensate the plaintiff.

'FAST-TRACK DISPOSAL' PROCEDURE

In its recognition of the generally cumbersome nature of libel litigation, the 1996 Act envisages a simplified mechanism for dealing with less serious complaints. When sections 8, 9 and 10 come into force, also forecast for the start of the millennium, a judge alone will be able to dismiss unrealistic claims at the outset; and he will also be able to dispose 'summarily' of relatively minor, but well-founded, claims, on the basis of an award of up to £10,000, a declaration that the publication was libellous, an order for an apology and an order forbidding repetition.

APOLOGIES IN GENERAL

Quite apart from the provisions concerning statutory apologies mentioned above, a swift and well-publicised apology will always go some way towards assuaging injured feelings and help reduce an award of damages.

LIMITATION AND DEATH

As from September 1996, the new Act has reduced from three years to one the period within which a libel action must generally be started if it is not to become 'statute-barred' through lapse of time. But successive and subsequent publications, such as the issue of later editions of the same book, or the sale of surplus copies of an old newspaper, can give rise to fresh claims.

Civil claims for libel cannot be brought on behalf of the dead. If an individual living plaintiff or defendant in a libel case dies before the jury gives their verdict, the action 'abates', i.e. comes to an end, so far as their involvement is concerned, and no rights arising out of it survive either for or against their personal representatives.

INSURANCE

For an author, the importance of at least an awareness of this branch of law lies first, in the fact that most book contracts contain a clause enabling the publisher to look to him or her should any libel claims result; and second, in the increasingly large awards of damages. It is therefore advisable to check what libel insurance a publisher carries, and whether it also covers the author who, if he or she is to have the benefit of it, should always alert the publisher to any potential risk. One company which offers libel insurance for authors is Royal Sun Alliance, Legal and Indemnities Libel Unit, Suite 1, 5th Floor, 3 Minster Court, Mincing Lane, London EC3R 7DD. Premiums start at £1000, and can be substantially higher if the book is tendentious or likely to be controversial. The company generally insists on the author obtaining, and paying for, a legal opinion first. Indemnity limits vary between £50,000 and £1 million, and the author is required to bear at least the first £5000, and 10% of the remainder, of any loss. It is worth remembering that 'losses' include legal costs as well as damages, which they can often exceed. Libel insurance can also be obtained through a Lloyd's broker.

CRIMINAL LIABILITY IN LIBEL

Whereas the object of a civil action is to obtain compensation for the wrong done or to prevent repetition, the object of criminal proceedings is to punish the wrongdoer by fine or imprisonment or both. There are four main types of writing which may provoke a prosecution:

Defamatory libel
Obscene publications
Sedition and incitement to racial hatred
Blasphemous libel

DEFAMATORY LIBEL

The publication of defamatory matter is in certain circumstances a crime as well as a civil wrong. But whereas the principal object of civil proceedings will normally be to obtain compensation, the principal object of a criminal prosecution will be to secure punishment of the accused, for example by way of a fine. Prosecutions are not frequent, but there have been signs of late of a revival of interest. There are important differences between the rules applicable to criminal libel and its civil counterpart. For example, a criminal libel may be 'published' even though only communicated to the person defamed and may be found to have occurred even where the person defamed is dead, or where only a group of persons but no particular individual has been maligned. During election campaigns, it is an 'illegal practice' to publish false statements about the personal character or conduct of a candidate irrespective of whether they are also defamatory.

OBSCENE PUBLICATIONS

It is an offence to publish obscene matter. By the Obscene Publications Act, 1959, matter is obscene if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear it. 'To deprave and corrupt' is to be distinguished from 'to shock and disgust'. It is a defence to a prosecution to prove that publication of the matter 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. Expert evidence may be given as to its literary, artistic, scientific or other merits. Playwrights, directors and producers should note that the Theatres Act, 1968, though designed to afford similar protection to stage productions, does not necessarily prevent prosecutions for indecency under other statutes.

SEDITION AND INCITEMENT TO RACIAL HATRED

Writings, which tend to destroy the peace of the realm, may be prosecuted as being seditious or as amounting to incitement to racial hatred. Seditious writings include those which advocate reform by unconstitutional or violent means or incite contempt or hatred for the monarch or Parliament. These institutions may be criticised stringently, but not in a manner which is likely to lead to insurrection or civil commotion or indeed any physical force. Prosecutions are a rarity, but it should be remembered that writers of matter contemptuous of the House of Commons, though not prosecuted for seditious libel are, from time to time, punished by that House for breach of its privileges, although, if a full apology is made, it is often an end of the matter. The Public Order Act 1986 makes it an offence, irrespective of the author's or publisher's intention, to publish, or put on plays containing, threatening, abusive or insulting matter if hatred is likely to be stirred up against any racial group in Great Britain.

BLASPHEMOUS LIBEL

Blasphemous libel consists in the vilification of the Christian religion or its ceremonies. Other religions are not protected. The offence lies essentially in the impact of what is said concerning, for instance, God, Christ, the Bible, the Book of Common Prayer, etc; it is irrelevant that the publisher does not intend to shock or arouse resentment. While temperate and sober writings on religious topics however anti-Christian in sentiment will not involve liability, if the discussion is 'so scurrilous and offensive as to pass the limit of decent controversy and to outrage any Christian feeling', it will.