Libel and Defamation law for Bloggers

Being a traditionally trained journalist (prior to entering the blogging world a few years ago) I have always had a healthy respect for the libel law in the UK, which is, in the main, anti-media, anti-journalism, and now out of date in the new online world. However, a recent conversation with an extremely helpful lawyer, Victoria McEvedy of McEvedy & Associates (www.mcevedy.eu), has resulted in her sending me a “Primer on Defamation for Bloggers” which (gasp!) actually points to a defence you could use in your blogging, were a libel action mounted against you and your content. It’s not literally ‘new news’, but it’s the best explanation I’ve come across yet about this subject.

It turns out that bloggers – along with the rest of the media – are also now able to make use of a special form of privilege, known as “The Reynolds defense of Responsible Journalism.” This requires a Defendant (that’s you the blogger) to show that the publication was:

(1) in the public interest

(2) that the you met the standard of Responsible Journalism on the date the blog post went live

Key to this is that the defence is not dependant on proving Truth, which is usually the defense a media outfit relies on and is often really hard to get at. That is a big deal. In other words, you don’t have to prove what you are blogging about someone is true, but you have to prove you met the standard of “Responsible Journalism” before you pressed the Publish button.

So if you publish material of public interest “in any medium” then bloggers, by definition, can use this defense.

Most critical to your defense is the requirement that the subject of the blog post must be:

1. Given the precise allegations that are to be published

2. A meaningful opportunity to respond to them

3. The gist of that response should be published in a balanced way

I am re-printing below what was sent to me in a word document. Let’s spread this knowledge…

Primer on Defamation for Bloggers

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The elements of a cause of action for defamation are:

1. A defamatory (pejorative) statement.

2. Published by the Defendant.

3. Reasonably understood to refer to the Claimant.

Be aware that repeating a statement makes you liable for it. It is no defense to libel that one was merely repeating the statements of another—this is the repetition rule. In addition, the republication rule means you can be liable for damages for all foreseeable republications by others who repeat it. This stems from the fact that every of a libel is a new libel, and each publisher is answerable for his act to the same extent as if it originated with him.

Once the Claimant has proved the above, the burden shifts to the Defendant to establish one of 3 primary defenses:

• Truth (justification)

• Fair Comment (honest opinion based on true facts)

• Privilege.

If the Defendant cannot make out a defense, the Claimant will succeed and the defamatory statement, if written becomes a Libel, and if oral, a Slander. The Claimant is then entitled as of right, to an award of general damages without need for proof of damage because it is presumed that some damage will flow from the invasion of the right to reputation.

The real defense is privilege. The others are too onerous.

The media now has a special form of privilege, the Reynolds defense of Responsible Journalism. This Reynolds defense requires a Defendant to show that the publication was (1) in the public interest; and (2) that the Defendant met the standard of Responsible Journalism as at the date of publication. The defense is not dependant on proving Truth. It is the main defense the media will rely on.

The courts have indicated that this will be available to anyone who publishes material of public interest in any medium. That means bloggers.

Bloggers should therefore be aware of the 10 point test below from Reynolds v Times [1999] UKHL 45. Most critical are the requirement that the subject of the article must be given the precise allegations that are to be published and a meaningful opportunity to respond to them and the gist of that response should be published in a balanced way. The table below is designed to act as a prompt or checklist.

The 10 point test



1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

In plain English:

This affects the rest, if it’s career ending then all the more important that due caution is exercised.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

In plain English:

The hook on which everything else will be hung, this is the reason the public should know, irrespective of the fact that the writer can’t prove its true and it might not be.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

In plain English:

What is the quality, how reliable are they, how direct is their knowledge? Are they biased, holding a grudge or beyond reproach? Are they being paid for the story? The answers to these questions should inform the writer of the level of verification necessary. Even if the identity of the source is withheld—as may be appropriate, these questions must be asked and answered.

4. The steps taken to verify the information.

In plain English:

What or who verified the source’s information? What steps were taken to verify even if unsuccessful or did they not bother? Who did not verify?

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

In plain English:

What is the quality? Are they uncorroborated allegations or the subject of official inquiries, investigations or findings? Rumor and speculation has no status nor does the premature allocation of blame. Care should be exercised.

6. The urgency of the matter. News is often a perishable commodity.

In plain English:

News is a perishable commodity but is there an urgent need for the public to be told of untested and highly damaging allegations? The writer’s own interest in a scoop is not relevant nor is their convenience or deadline.

7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

In plain English:

A meaning opportunity to respond to the precise allegations should be given. Door stopping, calls with half an hour before print/broadcast and ambushing are not a proper opportunity to give a measured response to very serious allegations.

8. Whether the article contained the gist of the claimant’s side of the story.

In plain English:

Formulaic references to a denial may not be enough nor any longer will the one paragraph at the end provide sufficient balance to an article full of allegations of the utmost seriousness laid out in great detail.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

In plain English:

Sensational will cost the writer as will adopting mere allegations as facts, premature allocation of blame.

10. The circumstances of the publication, including the timing.

In plain English:

The writer’s subjective belief as to the truth of the story is important.

Where publication is continuing in an online form –once the writer/publisher is advised of its untruth or the commencement of a libel claim –they can lose the benefit of the defense if continuing to publish without correction or qualification. So a story that originally qualified for the defense can lose it later if events render continuing publication irresponsible in light of facts of matters which have changed. It is now common practice for notices to be affixed online to inform readers that the item is the subject of a libel action.

This article does not provide legal advice but rather general information. It is not a complete discussion nor a substitute for legal advice. This is general information provided on an as-is basis and no warranties are given and no relationship created.

McEvedy & Associates

www.mcevedy.eu

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