- A statement is defamatory if, when said about an identifiable person (see below for further information) and published to a third party, it would be likely to make reasonable people think less of that person. A statement is not to be considered defamatory unless it has caused or is likely to cause serious harm to the person's reputation.
- The law of defamation encompasses both libel and slander. A libel is a defamatory statement in writing or some other permanent form e.g. recorded within a television programme. A slander is a defamatory statement where publication is by word of mouth. There are some differences in the way the law treats each type of publication. In television, we are generally concerned with libels.
- If a claimant who sues for defamation is successful, he or she is likely to receive damages, in other words money, which provides both vindication and compensation for the damage caused by the defamatory (and untrue) statements published about him/her. 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 defamation claim, are rare.
- 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 and individual directors may be able personally to sue too. Things said about companies are not to be regarded as defamatory unless they have caused or are likely to cause serious financial loss.
- The burden of proving the truth of defamatory allegations is on the party that makes the allegations.
- A class of individuals, if sufficiently defined and identifiable, can also sue, although the larger the class of individuals defamed, the less likely unnamed individuals would be able to take legal action.
- Fictional programmes can be defamatory if viewers would reasonably understand references within them to be referring to real individuals/organisations.
- It is possible to defame a person or a company accidentally. For example, the juxtaposition of someone's picture with spoken words or commentary may accidentally libel that person or company. Intention is irrelevant.
- Although other defences exist, the main defence to a libel action is being able to prove that the defamatory allegation is true.
- Claimants suing for defamation are required to sue one or more of the "primary publishers", that is author, editor and/or the commercial publisher, although if that is not "reasonably practicable", the claimant potentially can sue "secondary publishers" e.g. distributors of defamatory material such as book and dvd sellers.
- Wherever potentially defamatory allegations are made, it will usually be necessary for a response to be sought from the subject and fairly reflected in the programme.
- Involvement in a libel action is costly and time consuming. However, Channel 4 will robustly defend its programmes and their makers where appropriate and where it is believed there is a good defence to the claim.
- In live programmes, presenters must take swift and effective action to distance the programme and the broadcaster from any potentially libellous remark, which must not be repeated.
Recent Changes to the Law of Defamation
The law of defamation has recently had a substantial 'makeover'. Following attempts over a number of years by various parties to reform defamation law in the UK, which many viewed as being too claimant friendly, the Government published a Consultation Paper in March 2011 on reform of the UK's defamation law, which included a draft Defamation Bill.
The passage of the Bill coincided with the Leveson Inquiry, although the latter's focus was principally phone-hacking and invasions of privacy. The Government resisted attempts from some to use the Bill as a vehicle to enact some of Lord Leveson's recommendations regarding press regulation, and the Act remained focussed on the law of defamation.
After some toing and froing between the Lords and Commons, and a period in which it looked like the Bill might be lost because of disputed amendments over whether to use the Bill to enact legislation recommended by Lord Leveson, the Bill received Royal Assent on 25 April 2013. The Defamation Act 2013 came into force on 1 January 2014. Libels published before that date will be considered in line with the old law.
A summary of the main changes introduced by the Defamation Act 2013 is set out at the end of this chapter.