Libel

Key points

A statement is defamatory if, when said about an identifiable person and published to a third party, it would be likely to make reasonable people think less of that person. If that defamatory statement is untrue, or cannot otherwise be defended, it will be libellous. A statement is not considered defamatory unless it has caused or is likely to cause serious harm to the person's reputation. Although this is often presumed to be the case for individuals, a higher bar is set for companies.
Although other defences exist, the main defence to a libel action is being able to prove that the defamatory allegation is true.
Fictional programmes can be defamatory if viewers would reasonably understand references within them to be referring to real individuals/organisations.
Libel actions are costly and time consuming. However, Channel 4 will robustly defend its content and its content creators where appropriate and where it is believed there is a good defence to the claim.

Introduction

The law of defamation encompasses both libel and slander. A libel is an untrue or otherwise indefensible defamatory statement in writing or some other permanent form, e.g., recorded within a television programme. A slander is such a statement where publication is by word of mouth. There are some differences in the way the law treats each type of publication. In broadcast and online media, we are generally concerned with libels.

Libel or defamation may arise when something is said about an individual, or a company or its products/services, which would tend to make a reasonable person think less of them as a result. This may be an allegation that they have acted in a criminal way or, for example, that a person has lied or somehow acted dishonourably.

The elements which are required for a claimant to bring an action for libel are:

Defamatory statement or implication;
Identification of a person or company; and
Publication of the statement.

Libel cannot be avoided by merely omitting the name of the person or company if there is a possibility that some people will be able to work out who is being referred to from the context and what else was said (‘jigsaw identification’). Simply adding the word “allegedly” to an otherwise defamatory statement provides no protection and may make matters worse. Again, the fact that the allegations have also been previously published is no defence in itself.

If a claimant who sues for libel is successful, they are likely to receive damages, in other words money, which provides both vindication and compensation for the damage caused by the libellous statements published about them. The court may also impose a final injunction prohibiting the defendant from repeating the libel. Interim injunctions restricting the publication of information by the media, that is, injunctions before a full trial of a libel claim, are rare.

The main defence to a libel claim is proving the defamatory statement is true. Ultimately, this would involve convincing a court that you have evidence to prove that the meaning of what you said is actually true – an often very difficult, time-consuming and expensive task! The person who has been libelled does not have to prove that what was said was untrue – the burden of proof would be on the defendants, which could include not only Channel 4 but, also the content creator.

Definition

Defamation law exists to protect the reputation of a person (or company) from defamatory statements made about him/her to a third party without lawful justification. A statement is defamatory if, when said about a person and published to a third party, it would make reasonable people think less of that person.

For a person to sue they must show:

a) that the defamatory language was used about them

b) that they were identified or identifiable and

c) that the words were published to another, i.e. a third party.

It doesn't matter whether the statement is intended to be defamatory. The judge trying the case will decide what the content is saying and whether it has unjustifiably injured the claimant’s reputation. Since the introduction of the Defamation Act 2013 which came into force on 1 January 2014, for a claimant to sue over a defamatory statement, the claimant must show that publication caused or is likely to cause serious harm. Although this is often presumed to be the case for individuals, bodies trading for profit e.g. companies, must show that publication caused or is likely to cause serious financial loss. This new threshold is intended to raise the bar and to prevent trivial claims.

Can this statement remain in my programme?

When considering whether or not a potentially defamatory statement or sequence can remain in their content, the producer should have regard to the following:

The nature and seriousness of the allegations/criticism. Obviously, the more serious the allegation, the more stringent the proof which is likely to be required.

The steps taken to verify that the allegations are true and what evidence there is to prove truth.

Who is the subject of the allegations and would they be likely to object to the remark or be likely to sue?

Has the subject of the allegations/criticism been contacted and given an appropriate opportunity to respond, and was their side of the story fairly reflected within the content?

Have the allegations/criticism been published before? If so, where have they been published and with what consequences, if any? For example, is the story old news, has it been in the newspapers before, or perhaps the subject has admitted the allegation?

Finally, it is worth remembering that libel proceedings are extremely time-consuming and costly to fight. All potentially defamatory statements must be checked for accuracy very carefully.

Advice should be sought from your content lawyer/compliance advisor at the earliest opportunity.

Who can sue?

Individuals

Any living individual can sue for libel; the dead cannot. I.e., an estate or relatives of a deceased person cannot sue for libel over defamatory statements made about the deceased person.

Companies

Companies can sue if the defamatory statement is in connection with their business or trading reputation and has caused or is likely to cause serious financial loss.

Residents overseas

An individual can normally sue in the country where the defamatory statement was read or viewed, if there is sufficient circulation or viewers. Foreigners can and do sue in the UK, even when they are not allowed to enter the country. For example, Roman Polanski, who was living in Paris, successfully sued Vanity Fair, a US publication, in England because the magazine had a limited circulation there and he was even permitted to give evidence via video link because he could not enter the UK without fear of arrest. Where a prospective defendant is not domiciled in the UK or another European Member State (or in a State which is a party to the Lugano Convention), the English Courts are not permitted to entertain a claim for libel "… unless the court is satisfied that, of all the places in which the statement complained has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement." This provision was enacted to deal with the perceived problem of 'libel tourism', i.e., foreigners suing other foreigners in England because of England's perceived claimant-friendly libel laws.

A group or class of individuals

A group or class of individuals, if sufficiently defined, can also sue. For example, it would be defamatory to say that all strikers of a particular football team took performance-enhancing drugs and each one could potentially sue, even though none had been named specifically. The larger the class of individuals defamed, the less likely unnamed individuals would be able to sue. For example, unnamed individual players could not sue on the generalised allegation that some players in the Premier League took performance-enhancing drugs, because the class is too large.

Unincorporated associations and certain government bodies cannot bring libel claims. If, however, individual members, officers or employees are the subject of the defamatory statements, these individuals can sue personally to seek to protect their own reputations.

Who can be sued?

Claimants can sue one or more of the author, editor and/or commercial publisher of the defamatory publication. Secondary publishers, for example printers or book sellers, may only be sued if it is not "reasonably practicable" for the claimant to sue a primary publisher. In the case of defamatory comments made by an interviewee in a television programme, the claimant might sue the interviewee making the remark (as author) and the production company and broadcaster (as commercial publishers), all primary publishers.

If a claimant who sues for libel is successful, they are likely to receive damages, in other words money, which provides both vindication and compensation for the damage caused by the defamatory (and untrue) or otherwise indefensible statements published about them. The court may also impose a final injunction prohibiting the defendant from repeating the libel. The courts can also order a defendant to publish a summary of its judgment. Where a claimant has been successful against a publisher of a libel, the courts can now also order third parties, that is parties other than the losing defendant, to remove the defamatory material, e.g., material published by someone on a third party's website.

Internet service providers ("ISPs")

The law applicable to ISPs is complex and evolving and requires specialist advice. Please refer up to your content lawyer/compliance advisor.

Opportunity to respond or 'right of reply'

Invariably, where defamatory allegations are made in programmes, a response should be sought from the subject of the allegations. This is important not only in that it serves as a final accuracy check but also in ensuring fairness to the subject of the allegations (See Section 7 of the Ofcom Code). This is particularly important where content creators may have some difficulty in proving the truth of the allegations and are relying on other defences, such as a public interest defence. It is unlikely that a defendant would be able to avail itself of the statutory public interest defence if it had not sought a response from the subject of the allegations before publication and fairly reflected that response (or perhaps a publicly stated comment on the allegation in question if made previously), where one was given, within the content. Seeking a response as to the truth or falsity of allegations is less likely to be necessary when neutrally reporting on disputes between third parties. However, in such circumstances, the positions of all the parties should be accurately reported if known.

In any event, advice should be sought from your content lawyer/compliance advisor.

'Jigsaw identification'

Sometimes television programmes/newspapers report defamatory allegations but, for one reason or another, for example because they are not confident they can actually prove the allegations, they do not identify the individual or organisation they are referring to, only giving certain details which they hope will be insufficient for viewers/readers to work out who is being referred to.

This is risky not least because, at the time of publication, there may be other information in the public domain (of which the publisher is unaware) which could lead to viewers/readers identifying the person/company being referred to. When this happens, the question of where liability for defamation lies is unclear and the person or organisation who considers themselves defamed may well attempt to sue the content creator, broadcaster or newspaper that originally made the allegations, as well as later publications.

Fictional programmes

Fictional programmes can be defamatory if viewers reasonably understand references within them to be referring to real people (or organisations), even if the real person's name is not used and even if the content is not intending to refer to a real person. For example, a fictional sitcom set in the House of Commons could potentially defame a real government minister if viewers were to identify a real person with the fictional character. The fact that the script writers had not intended for there to be such a connection would be irrelevant. The claimant in such an action would have to establish that they were identified in connection with the fictional character and that publication had caused serious harm or was likely to cause serious harm.

Where there is a risk that viewers may identify real people with fictional characters in drama, content normally carries a disclaimer informing viewers that the drama and all characters are entirely fictional.

Intentional/accidental defamation

Current affairs content will often intentionally contain defamatory allegations about individuals and/or companies. This will only occur after a thorough investigation by the content creator and a detailed examination of the evidence. However, it is possible to libel a person or a company accidentally. The juxtaposition of someone's picture next to a piece of sync or commentary may accidentally libel that person. For example, showing an entirely innocent member of the public walking through Customs, juxtaposed with a piece of commentary or sync about the illegal importation of drugs may well give the false impression that the person shown is a drug smuggler. This would amount to a libel of that person. Great care must be taken to avoid such accidental libels.

A common cause of claims for libel is the incorrect use of photographs in connection with particular stories, for example individuals whose photographs have mistakenly been used in news programmes in connection with terrorist offences have sued and received substantial damages. It is vital that producers take great care to ensure that the correct photographs illustrate a story and that identified individuals are indeed involved with the story.

Repeating defamatory matter

The general rule in English law is that it is no defence in an action for defamation for a defendant to prove that they were only repeating the words of another.

It may be possible to safely repeat the allegations because, for example, the reporting is covered by privilege. On matters of public interest, the neutral reporting of disputes between third parties, where allegations are not adopted or endorsed, may be defensible. In all cases advice must be sought from the content lawyer/compliance advisor.

The defences

Truth

The main defence to a libel action is 'truth', that is, being able to prove that the defamatory allegation is substantially true. There are complex rules of practice, procedure and evidence which need to be carefully considered before any defamatory material is published, so advice must be sought from the content lawyer/compliance advisor wherever truth is to be relied upon as a defence.

Honest opinion

It is a defence to an action for libel for a defendant to show that:

the statement is one of opinion (not fact);
the statement indicates, either in general or specific terms, the basis of the opinion; and
an honest person could have held the opinion on the basis of any fact which existed at the time of publication (or anything asserted to be fact in a privileged statement published before the statement complained of).
The defence is defeated if the claimant shows that the defendant did not hold the opinion; or in a case where the statement complained of is published by the defendant but made by another person (the author), the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion. In other words, if Channel 4 (the commercial publisher) broadcast a programme featuring a contributor (the author) expressing a defamatory opinion, the broadcaster's defence of honest opinion would be defeated if the claimant was able to show that the broadcaster knew or ought to have known that the contributor did not hold the opinion.

Other defences

Other defences to libel include 'absolute privilege' and 'qualified privilege', which attach to certain occasions and proceedings and to their reporting. One of the best-known examples of absolute privilege is Parliamentary Privilege, accorded by the Bill of Rights 1688, which states that, "… the freedom of speech and stet debates or proceedings of … Parliament ought not to be impeached or questioned in any court or place out of Parliament". Most statements made in the course of judicial proceedings also attract absolute privilege, in other words a person cannot be sued for defamatory statements made during the course of proceedings before any court, irrespective of the truth or falsity of what is said and irrespective of the motive of the person making the statement. 'Qualified privilege' is so called because it is defeated by 'malice', that is that the publisher had some 'improper motive' for publishing, or that the publisher did not believe what he published. Whilst absolute privilege attaches to only a few occasions, qualified privilege now attaches to a whole host of occasions and types of reporting.

This area of the law is complex, so advice from the content lawyer/compliance advisor should always be sought if content creators are seeking to rely on a defence of privilege.

If a person consents to being libelled, this is also a defence. Broadcasters may also be able to avail themselves of a specific defence relating to live broadcasts if a libel occurs unexpectedly.

Publications on matters of public interest

It is a defence to an action for defamation for the defendant to show that

(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.

The first part of the defence requires that the statement complained of was, or formed part of, a statement on a matter of public interest. Public interest as a concept is well-established in law. Case law and the Ofcom Broadcasting Code address the question of what constitutes the public interest. It is noteworthy that the statement complained of doesn’t itself have to be on a matter of public interest as long as it formed part of a larger statement which did. The second part of the defence requires that the publisher must have believed that it was in the public interest to publish the statement and that this belief was reasonable. This second part of the defence places the burden on the defendant of proving what their belief was at the relevant time and will involve questions to determine whether the publication amounted to 'responsible journalism'.

The public interest defence also protects the neutral reporting of existing disputes ('neutral reportage') – the media can neutrally report on existing disputes without fear of being sued and having to prove the truth of what one or other party was alleging.

Live programmes

If a guest on a live programme makes an unprompted defamatory remark, the content creator/broadcaster may not be liable if they can demonstrate that:

the statement was made in circumstances where they had no effective control over the person making the defamatory remark; and

they took "reasonable care" in relation to the production and did not know or had no reason to believe that they were contributing to the publication of the defamatory remark.

This is a complete defence regardless of the truth of the statement. In order to rely on this defence, it is important that presenters take immediate and effective action to distance the programme and the broadcaster from the offending remark, which must not be repeated.

Who has to prove what?

In libel actions, the burden of proving the truth of the allegations is on the party that makes the allegations. The fact that a story is true is not, therefore, enough. Can the story be proved to be true?

Proof

In many cases, success in libel actions depends on having the evidence to prove the truth of the allegations that have been made. Evidence can take many forms and the rules of evidence are complicated. What may seem to be strong, cogent evidence of a particular fact may be inadmissible when it comes to a court case. Witnesses may turn out to be unreliable, have an 'axe to grind' or simply be dishonest. The fact that the story has been written elsewhere, for example in other press articles, may suggest that it is true, particularly if no legal action has been taken over those articles. However, press articles are not admissible evidence in court of the truth of what has been printed. In addition, be very careful about relying on information found on the internet.

As the truth of allegations being made in the content may have to be proved at some later date, it is essential that all evidence, for example statements from witnesses, documents, journalists' notebooks, emails and contemporaneous notes of phone calls, are retained. It is important to remember that material such as rushes and notebooks may need to be disclosed, and in court, content creators may well be cross-examined on what they have written, or said while the camera is running.

FAQs

: No. It makes no difference that the defamatory remark is made by a contributor, as opposed to being in voice-over. The fact is that as the production company making the content and the broadcaster transmitting a publishing, we are primary publishers and that means in law that we are potentially liable. Whilst the contributor who made the remark will also be liable, in practice, claimants (i.e. those suing) almost always pursue the party or parties with the most resources which is normally the broadcaster and production company.
: No. Prefixing a defamatory remark with the word "allegedly" may, in certain circumstances, be useful in terms of clarifying the status of the particular allegation and thereby possibly lowering the defamatory meaning, but it is unlikely in itself to provide any sort of legal defence.

Wherever potentially defamatory material is to be included within content, advice must be sought from the content lawyer/compliance advisor.
: No, and in fact making a defamatory remark about an individual or organisation as a joke could potentially make matters worse, in that it could rule out certain legal defences that might otherwise be available. What is important here is not what the person making the remark intended but, rather, how a reasonable viewer would understand it. If the defamatory statement in question was capable of being understood by a reasonable viewer as an assertion of fact, then all those contributing to the publication, that is the person making the remark, the production company and broadcaster, would be potentially liable.
: The legal defence of 'honest opinion' protects sincere opinion (not statements of fact), based on true facts known by the speaker at the time of stating the opinion. In other words, the opinion must be based on true facts which are provable, and be one which is honestly held by the speaker. Furthermore, the statement of opinion needs to indicate, specifically or generally, the factual basis of the opinion. If any one of these elements is missing, the defence is likely to fail. Honest opinion, therefore, as a legal defence is not as straightforward as is often thought and advice should always be sought from the content lawyer/compliance advisor.
: Just because a story has appeared elsewhere in the media does not mean that it is true or defensible. Libel actions are settled and substantial damages are paid day in day out by media organisations that have got things wrong.

As a responsible broadcaster/publisher, any material which is potentially defamatory must be cleared by the relevant content lawyer/compliance advisor and commissioning editor, regardless of how widely it has been reported elsewhere.

Whether the allegation in question has been broadcast or published widely before may be a factor in determining whether the risk in repeating it is acceptable, but it is only one factor. What is likely to be most important is whether the allegation is true and provable.
: For an individual or organisation to be able to sue for defamation, they would need to be able to show that the defamatory remark was said about them and that they were identifiable from the broadcast/publication. Clearly an individual or organisation (or class of either) does not need to be named in order to be identifiable if other information (verbal or visual) could reasonably lead to their identification. For this reason, whilst there may be occasions where merely bleeping a name would suffice to remove entirely any libel risk, in most cases the matter is likely to be more complex. Seek advice from the content lawyer/compliance advisor.
: No, or at least it would be very unlikely. In English law, unless a defendant can rely on ‘privilege’ or the public interest as a defence. When a party sues for defamation, the burden of proving the truth of a defamatory statement falls on the defendants (any or all of the author, editor, publisher). It follows that if there is no evidence, for example witness testimony or documentary evidence, there is simply no defence and the claimant's action would succeed.

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