Legal Checklist - Defamation and libel

Everyday, people say things to those around them e.g. members of their family, friends or work colleagues, about other people or organisations they either know of or have heard about in the news. Sometimes what they say can be unkind or critical or even scandalous. The vast majority of times, such statements are uttered and heard by others without any adverse repercussions. For example, if you are unlucky enough for your unkind remark about a work colleague to get back to its subject, the worst thing you are likely to feel is embarrassment. The main reason for this is that such comments are usually only made to friends or to a small group of trusted people. But what if the remark in question was recorded, say in an email, and accidentally sent to all personnel in a company; then the repercussions may be somewhat more serious and the subject of the remark might be looking for not just an apology but compensation.

If critical or unkind statements about others are included in a film which is broadcast on television or available on the Internet to potentially millions of people, then there could be very serious potential consequences, ones that might involve the courts.

As a film-maker you need to be able to spot things in your film that could be potentially problematic, particularly statements that might be defamatory and damaging of others, because if your film does contain such statements, they may need to be removed. Before you begin to consider what kind of material might need to be removed, however, you need to understand more about what is defamatory.

Definition

Defamation law exists to protect the reputation of a person 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 ordinary people think less of that person.

For a person to sue they must show that the defamatory language was a) used about them, b) that they were identified and c) that the words were published to another, ie a third party. It doesn't matter if you don't intend the statement to be defamatory; ultimately a jury (or sometimes a judge) will decide what the film is saying about the individual and whether it has unjustifiably injured their reputation.

Who can sue?

Any living individual can sue for defamation; the dead cannot. Companies can sue if the defamatory statement is in connection with its business or trading reputation.

A class of individuals, if sufficiently defined, can also sue; eg 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.

Taking the above example, unnamed individual players could not sue on the generalised allegation that all the players in the Premier league took performing enhancing drugs. Similarly individual unnamed goal keepers would not be able to sue on the generalised allegation that all First Division goal keepers took 'bungs' because the class is too large.

Who can be sued?

Any person who causes or is responsible for the publication of a defamatory statement can be sued e.g. writer, producer, director, editor, interviewee, broadcaster, even, in the case of a book, the printers or the newsagents or booksellers. In the case of films uploaded onto the FourDocs website, anyone involved in the production and dissemination of the film could be sued, including of course yourself as writer/producer/director or contributor.

There is a common misconception that because a libellous remark is made by a contributor or interviewee in a programme and not in commentary, the film-makers/broadcaster cannot be held legally responsible. This is incorrect. The broadcaster and film-makers are liable as contributing to the publication of the libel.

Intentional/accidental defamation

Current affairs programmes and films will often intentionally broadcast defamatory allegations about individuals and/or companies. This will only occur after a thorough investigation by the programme-makers and a detailed examination of the evidence by the broadcaster and it's editorial and legal advisors. 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 drugs smuggler. This would amount to a libel of that person. Great care must be taken to avoid such accidental libels.

The defences

The main defence to a libel action is 'justification' ie being able to prove that the defamatory allegation is true. There is also a defence of 'fair comment', which protects honest and sincere opinion, based on true fact, on a matter of public interest. This defence, however, is not as easy as it sounds and can be defeated if it can be shown that the person being sued was reckless with regard to the truth eg the film-maker didn't make proper journalist enquiries.

There are other defences to libel such as absolute and qualified privilege which attach to the reporting of certain proceedings eg the fair and accurate reporting of UK court proceedings or proceeding in the UK parliament. Qualified privilege is so called because it, too, is defeated by malice. If a person consents to being libelled, this is also a defence.

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

Libel actions are no different to any other: success depends on having the evidence to prove the allegations that you have made. Evidence can take many forms but the rules of evidence are very complicated. What may seem to be strong cogent evidence of a particular fact may be inadmissible when it comes to the court case. The fact that the story may have been written elsewhere e.g. 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 of the truth of what has been printed.

Examples

Although by no means an exhaustive list, examples of defamatory statements might include the following:

• Individual, X, (who may or may not be named explicitly) has committed some criminal or seriously antisocial act...
• X is a liar, is dishonest or has committed a fraudulent act...
• X took a bribe; X tried to bribe Y...
• X stole from Y; X is a thief ..
• X is violent or abusive in some way...
• X damaged Y's property...
• X is a drugs dealer, a drugs user or, simply, 'is involved in' drugs...
• X is a hypocrite...
• X is bankrupt; is nearly bankrupt or has serious financial problems...
• X owes money which he won't (or can't) pay back...
• X sexually abused or harassed Y...
• X is sexually perverted in some way...
• X is a paedophile...
• X is cheating on his wife, her husband or his/her long term partner...
• X is gay (when X is married or claims not to be gay)...
• X is very sexually promiscuous...
• X has had extreme plastic surgery (particularly when it's been denied previously)...
• X framed Y for the crime...
• X (policeman) 'fitted up' Y, forced an untrue confession etc...
• X was negligent in some way...
• X harassed Y, was a nuisance...
• X's activities are putting others at risk, in danger...
• X exploits others in some way...
• Company Z is dishonest (for whatever reason)...
• Z's products are dangerous or unhealthy eg cause cancer...
• Z's products are substandard, of poor quality etc...
• Z's methods of production, operating methods or activities are putting customers/the public at risk in some way...
• Z's activities are damaging the environment...
• Z exploits its workers in some way eg low pay, sweat shops etc...
• Z is bankrupt, is nearly bankrupt or is in financial trouble...

Note that defamatory statements can be distinguished from mere abusive ones in that they say something about the person being criticised that goes beyond mere insult. For example it would generally not be defamatory to say something like "I hate X, he's a tosser" or "I've got no time for X, he's a wanker" but it would be defamatory to say "I hate X, he's a tosser, he stole my bicycle" or "I've got no time for X, he's a wanker, he's a habitual liar". Someone hearing the former statements would conclude that you didn't like X but it wouldn't make them think less of X themselves. The latter statements, however, which attribute some antisocial or reprehensible actions on X's part would make people think less of him and are therefore defamatory.

How defamation affects you

Now that you know more about the law of defamation and what might constitute a libel, start thinking about your own film and whether it contains any defamatory material. If it does, then it may have to be removed, depending on a number of factors.

As most of you are likely to be inexperienced film-makers, we do not expect you to take sole responsibility for the legal content of your films. Editorial staff at FourDocs will vet all films before they are accepted and will be looking out for legally problematic material.

However, we do require you to think carefully about these issues in advance because if you try to upload films that contain defamatory material, which we consider to be an unacceptable risk for whatever reason, your film will be rejected. You should, therefore, be aiming to supply films that either do not contain any defamatory material or, if they do, at the very least it is flagged up to us in advance and you have informed us of why the material in question in your view does not present an unacceptable risk and is able to be uploaded onto the site and made available to the viewing public.

When considering whether or not a potentially defamatory statement or sequence can remain, have regard to the following:

• The nature and seriousness of the allegation(s)/criticism - obviously the more serious the allegation the more stringent proof will be required.
• What steps you, or possibly others, have taken to verify that the allegations/criticisms are justified and what evidence you have to prove the truth of the allegation/criticism
• Who the subject of the allegation(s) is and whether he/she/it would be likely to object to the remark, or be likely to sue;
• Whether the allegations/criticisms have been put to the individual or company being criticised. If not, why not?
• Whether the subject of the allegations/criticism has been given a proper chance to respond and whether their side of the story has been fairly and properly included in your film. If not, why not?
• Whether the allegation(s)/criticism has been published before. If so, where has it been published and with what consequences, if any? For example, perhaps the story is old news, has been in the newspapers before or perhaps the subject has even admitted the allegation

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EXAMPLE

You are making a film about the closure of a factory near where you live and you interview some people that have lost their jobs. Some of those interviewed criticise the management of the factory and blame the directors for the company's demise. The company is named and the directors, of which there is only a handful, are identifiable. A couple of interviewees talk about the directors' incompetence in making specific business decisions which turned out to be damaging to the company and one of the interviewees even suggests that the directors stole money from the firm.

To suggest that the directors were incompetent is defamatory. If you want to keep these comments in your film, firstly you must find out on what basis the interviewee makes the allegation i.e. what are the damaging business decisions he refers to. You then need to make journalistic enquiries to corroborate the facts i.e. that in fact these business decisions were made, that they were damaging to the company and that they were made by the directors (each of them). These facts could be corroborated by speaking to others that have direct knowledge of what happened or perhaps there is documentary evidence eg copies of letters, emails etc. In addition, these facts may have been reported before in the local press, without being contested, so you will have more confidence in their truth and, therefore, in repeating them.

If you are unable to corroborate the facts, it is likely you will have to lose these comments from your film. However, if you are able to and the interviewees’ comments seem reasonable based on the facts (which are provable), then, but only then, should you move towards seeking a right to reply from those that are criticised.

Comments about directors stealing money are of course seriously defamatory and would require very rigorous proof. On what basis is the allegation being made? What proof does the person making the allegation actually have? Is it just rumour, unsupported by evidence or hard facts? You would need very convincing evidence i.e. convincing testimony of witnesses of fact and/or documentary evidence to prove this allegation before you could move towards seeking a right to reply.

When seeking right to replies, you should first approach the person or company by letter asking either for an interview or a statement for inclusion in your film. The letter should explain what your film is about and what comments exactly have been made about them. Be careful not to 'doorstep' (meaning literally turning up with a camera at their home or place of work and surprising them) or harass the person. They then may or may not agree to be filmed or supply a statement for inclusion in your film.

If the person or company being criticised agrees to be interviewed for your film and answers the criticisms and allegations that have been made, then it is likely that the film will be fair and balanced and, overall, not be libellous. However, in many cases the party being criticised is likely to refuse to take part and will simply deny the allegation. Of course you may include the denial in your film but this is no guarantee that the party being criticised won’t threaten to sue you or the publisher/broadcaster or actually issue legal proceedings when the film is published/broadcast.

Once you write to a person or company that has been criticised seeking a right to reply, you are alerting them to what has been said and you should be prepared for an angry reaction and even a lawyer's letter threatening you with legal proceedings. You would then need to proceed very carefully and you are likely to need to seek professional legal advice.

As stated above, FourDocs is unable to provide such advice so unless you are an experienced film maker or journalist used to dealing with such matters, we strongly advise you not to attempt to make legally contentious films of this nature.

Example

You are making a short film about your brother, a talented footballer, who fancies himself as the next Wayne Rooney. One of your brother's friends says in passing that he's gone off Wayne Rooney since he heard that he had sex with prostitutes. Such a statement is likely to be acceptable because we know it is true - Wayne Rooney did admit sleeping with prostitutes (in the past). However, if the contributor went on to refer to other allegations about the footballer e.g. that on one occasion he hit his girlfriend Colleen, then this would not be acceptable because that allegation is strongly denied by both Rooney and his girlfriend and is the subject of legal action.

Summary

1. Scrutinise your film and consider whether it contains any defamatory references. If it does, are the defamatory comments/allegations being made for the first time, or are they repeating allegations that have been made before?
2. In the case of defamatory allegations that are being made for the first time, have you made proper journalistic enquiries to satisfy yourself that the allegations are true? And, furthermore, can you prove them? If you have not made the proper enquiries or, following enquiry, you have any doubts as to the truth of the comments or you consider that the allegations would be difficult to prove, then the defamatory remarks should be removed from your film. If you are satisfied that the allegations are true and there is sufficient evidence to prove that they're true, have you sought a right to reply from the subject of the allegations and has that been fairly and accurately presented within your film? Only if the answer to all the above questions is "yes" is it likely that your film will be accepted.
3. Where defamatory and potentially defamatory remarks are being repeated within your film, eg stories from newspapers, celebrity gossip etc. then you must do a risk assessment of including those comments. Ask yourself: where and how frequently have the comments been made before?; has the person/company denied/admitted the allegations before?; are the allegations contested e.g. in court?; is the subject of the allegation likely to sue? In addition, there may be defamatory remarks that have been published before in newspapers etc. but which you couldn't repeat without making our own journalistic enquiries and satisfying yourself that the allegations are true and could be proved.