- Q. We're not saying it, the contributor is. So that's okay?
A. 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 programme and the broadcaster transmitting it, 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 with the most resources which is normally the broadcaster and production company.
- Q. If we prefix the remark with "allegedly" does that get us off the hook?
A. 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 by no means is it likely in itself to provide any sort of legal defence. Wherever potentially defamatory material is to be included within a programme, advice must be sought from the programme lawyer so that a thorough assessment can be made of the potential risks and what, if any, further action is required before the material in question can be broadcast, for example a response from the subject of the allegations needs to be sought.
- Q. It was a joke, he didn't mean it. So that's okay?
A. 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.
- Q. But surely that's just fair comment (or honest opinion)?
A. "Fair comment" means different things to different people but as a legal defence to an action for defamation, it was strictly defined. The common law defence of fair comment has now been abolished and replaced with a new statutory defence of honest opinion. Accordingly, defamatory expressions of opinion must now be defended according to the law of ‘honest opinion’. The 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 should only be relied upon after seeking legal advice.
- Q. Why can't we say it, it's been in the papers and all over the internet?
A. 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, any material which is potentially defamatory must be cleared by the relevant programme lawyer, regardless of how widely it has been reported elsewhere. Whether the allegation in question has been broadcast or published widely before will obviously 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.
- Q. If we bleep the name, can we keep it in?
A. 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. 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.
- Q. Can we say it if everyone knows it to be true, even if there isn't actually any evidence?
A. 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 party responsible for the publication i.e. normally the broadcaster. It follows that if that initial burden cannot be discharged, because there is no evidence, for example witness testimony, or documentary evidence, there is simply no defence and the claimant's action would succeed.