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Media Law: Questions & Answers

Defamation | Privacy and Breach of Confidence

 

Defamation


What is defamation?
Defamation is the publication to a third party of a statement which damages the reputation of the complainant.  Defamation can take two forms: libel and slander.

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What is the difference between libel and slander?
Libel concerns the written word and material broadcast on television or radio. Slander concerns the spoken word.

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Who can sue for libel or slander?

Individuals, companies, firms, certain charities and trade unions can all bring proceedings for libel and slander. Governmental bodies (local authorities and central government bodies) and political parties cannot - but if the allegation reflects on them, individual councillors, civil servants and politicians can all bring actions in their own name.

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Within what time period must libel or slander proceedings be commenced?
Usually within one year of the date of publication of the material containing the defamatory allegations complained of. However, in exceptional circumstances the court can extend this time.

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What must a person or company prove in a libel or slander action?

When an individual or company brings a libel or slander action, they must show:

  • that the words are defamatory of them;
  • that the words would be understood to refer to them by even one other person; and
  • that the words have been published to a third party.

A libel claimant does not have to prove that the words are false or to prove that he has in fact suffered any loss. Damage is presumed. A slander claimant will need to prove that the defamatory allegations caused actual financial damage, unless the slander is within certain categories.

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When are words defamatory?

There is no set definition of 'defamatory'. A statement may be considered to be defamatory if it tends to do any one of the following:

  • lower the claimant in the estimation of right-thinking members of society generally;
  • disparage a claimant in his business, trade, office or profession;
  • expose the claimant to hatred, ridicule or contempt; or
  • cause the claimant to be shunned or avoided.

Whether or not a statement has that effect is measured against the standard of the reasonable man generally and not a limited class of people who may have different standards from the majority of members of society.

Common examples of what may be considered defamatory are allegations that suggest a person is:

  • Immoral
  • Dishonest
  • Corrupt
  • Insolvent or in serious financial difficulties
  • Incompetent
  • Guilty of a criminal offence
  • The producer of shoddy goods

Standards of morality constantly change and so what would have been immoral twenty years ago may not necessarily be so today.
 
Determining the meaning of words gives rise to a great degree of uncertainty in a libel action. It is not only the superficial meaning that may be defamatory but also any 'hidden' meaning which can be inferred. There are three levels of meaning to be aware of:

  • inference, in other words a meaning that can be read between the lines without any specialist knowledge; and
  • innuendo, a meaning which can be attributed to the words by readers who have a specialist knowledge.
The onus is on the claimant to show the facts giving rise to the innuendo and that these facts are known to the readers. For example, to say that a person eats meat is not defamatory on its face; if, however, some readers know that the person professes to be a committed vegetarian, the statement may be considered defamatory, suggesting he is hypocritical or dishonest.
 
The words must be put in their full context, including headings and captions to any photographs. For the purpose of deciding whether words are defamatory, the intention of the author is irrelevant. All that matters is the impression which the words give to readers.
 
It is important to bear in mind that a person can sue for the repetition of a defamatory statement made by somebody else. However if it is made absolutely clear, when the words are read as a whole, that there is no truth in a rumour then this may be sufficient to remove the defamatory 'sting'. Be aware however that it is often considered that there is 'no smoke without fire' and it is possible that the publication even of rumour can be defamatory. Simply to make an allegation and add 'allegedly' or 'it has been alleged' will not in itself protect someone from a libel complaint, as readers will usually still understand there to be some truth in the allegation being made.

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Must the defamatory material refer to the claimant?
Yes. Clearly if someone is named they are identifiable to readers. However, even if the claimant is not named he may still be identifiable to some readers. It is sufficient that he is reasonably identifiable to even one person with whom he is acquainted. For instance, people with whom an individual works may know to whom the allegation is referring from its context.

If a defamatory allegation is made of a large, indeterminate group, no one individual may be able to show that the words would be understood to refer to him (and therefore that the words would have damaged his reputation). However, if the group is determinate and comprises only a small number of people, it may be possible for every member of that group to sue.

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To how many people must the defamatory allegations have been published?
Making a defamatory allegation, whether orally or in writing, even to one individual other than the claimant himself is sufficient to give rise to a claim.  However, the court has the power to stop a case proceeding in limited publication cases if it would be disproportionate to proceed to trial.

Any communication to anyone other than the person actually defamed is, in law, capable of constituting publication. A draft manuscript sent by an author to his or her editor is a publication.

A claimant can take action against any or all of those involved in the process of publication, including the author who wrote the book, the editor responsible for the content of the book and the company which publishes it.

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Who can be sued?
Any person, company or other legal body involved in publishing the defamatory material. This includes the author, any editor and any publishing company. Sometimes, distributors of defamatory material can also be sued.

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Can the claim be defended?
There are three main defences available to a defendant in a libel action; namely, justification, fair comment and privilege.

1) Justification

The defence of justification, or truth, is a complete defence to a libel action. The onus is on the defendant to prove that the allegations are true.

Whilst the defendant does not, necessarily, have to prove the truth of each and every fact, he does have to prove the truth of the substance of the allegation, the defamatory 'sting'.

Even if a defendant is unable or unwilling to prove that the allegations are substantially true, he may nonetheless be able to defend the claim if he can show that it was fair comment or protected by privilege.

2) Honest comment

The defence of honest comment (formerly known as 'fair comment' until the Supreme Court judgment of Joseph v Spiller [2010] UKSC 53) applies only to expressions of opinion, rather than to statements of fact.

A restaurant or theatre review is a classic example of a publication which may be protected by honest comment, although this defence may apply in a variety of different situations.

To succeed in the defence of honest comment the defendant must show that the comment:

  • is on a matter of public interest;
  • is recognisable as comment, as distinct from an allegation of fact;
  • is based on facts which are true (or protected by the defence of privilege);
  • is on a matter which has been expressly or implicitly put before the public for judgment, or is otherwise on a matter with which the public has a legitimate concern; and
  • must explicitly or implicitly indicate, at least in general terms, the facts on which it is based (i.e. what it is that has led the commentator to make the comment). Previously, the facts had to be identified sufficiently so as to enable the reader to judge for himself how far the comment was well founded, but following Joseph v Spiller this is no longer the case.
If the claimant can show that the comment was actuated by malice (meaning that the defendant was not expressing his genuine opinion) the defence of honest comment will be defeated. It is not enough, however, to show that the comment was prejudiced, exaggerated or 'unfair' so in practice it can be difficult to prove that the commentator acted 'maliciously'.

3) Privilege

The law recognises that there are circumstances in which it is in the public interest to permit greater freedom of speech. Publication on a matter which is privileged is protected from a libel action either by absolute privilege, which is a complete bar to libel actions, or qualified privilege, which protects the statement so long as it was published without malice. In the case of qualified privilege, malice may consist in either:

  • awareness of or recklessness as to the untruth of the statement (as above);
  • a dominant improper motive in making a statement believed to be true; or
  • misuse on the occasion for which privilege exists.
3a Absolute privilege

Examples of situations covered by absolute privilege include:

  • fair, accurate and contemporaneous reports of proceedings in public before UK courts, the European Court of Justice, European Court of Human Rights and certain international tribunals;
  • statements made in Parliament and official reports of parliamentary proceedings (includes select committee proceedings but not statements made by MPs outside Parliament); or
  • statements or complaints of criminal behaviour made to the police.

This defence gives complete protection to fair, accurate and contemporaneous reports of court proceedings. It cannot be defeated by proof of malice. Generally a newspaper or magazine article is treated as being contemporaneous if it is published as soon as possible after the statements are made. This will normally be in the next available issue following the proceedings.

3b Qualified Privilege

Qualified privilege exists "for the common convenience and welfare of society because the law accepts that there are occasions when persons should be at liberty to express themselves freely even when in doing so a third party is defamed."

Qualified privilege attaches to three main groups of publications:

i. Defamatory statements made under a social, moral or legal duty to a person who has a corresponding interest in receiving them.

This category of qualified privilege has proved difficult for the courts to define specifically. Whether a social or moral duty exists depends on the circumstances of the case, and the courts have not limited the interests to which the defence applies, except to state that the interest must be a legitimate interest and not a matter of mere gossip or curiosity. Publications between an employer and employees are likely to be covered by this privilege as are publications for the purposes of disciplinary or other employer/employee proceedings and between a trade union and its members.

In recent years the law has developed, under this category of qualified privilege, a defence which is sometimes termed that of "responsible journalism on a matter of public interest". The law recognises (Reynolds v Times Newspapers) that there are occasions when the public interest requires that publication to the world at large should be privileged. In determining whether the public at large has a right to know the published information, the court will be concerned to assess whether the information is of sufficient value to the public that, in the public interest, it should be protected by privilege.

In making the assessment, Lord Nicholls in his judgment in the Reynolds case set out ten "illustrative circumstances" which are required to be considered: 

"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. 

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

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. 

4. The steps taken to verify the information. 

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

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

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

8. Whether the book/article contained the gist of the claimant's side of the story. 

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

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

ii. Reports of proceedings listed in Schedule 1 Defamation Act 1996  

The Defamation Act 1996 lists a number of publications which are covered by qualified privilege.  These include fair and accurate reports of public proceedings in legislatures, courts, and international conferences anywhere in the world.  The report does not have to be contemporaneous.

The Defamation Act 1996 also lists a number of publications which will benefit from qualified privilege unless the defence can be 'defeated' by malice or where the claimant was not given a right to reply to the defamatory allegation or the reply was not published in a 'suitable manner'.  These publications include:

  • documents made available by UK and other European courts;
  • public proceedings of local authorities;
  • proceedings of lawful public meetings in member States held for the furtherance of discussion of a matter of public concern;
  • proceedings at general meetings of public companies; and
  • findings or decisions of a broad range of business, sporting, cultural and charitable associations in the UK or other member States.

iii. Reports of parliamentary and judicial proceedings

Fair and accurate reports of parliamentary and judicial proceedings are protected by qualified privilege at common law, whether published contemporaneously or not. However, the common law has become less relevant in this area since the Defamation Act 1996 came into force, as it confers qualified privilege on a wide range of judicial proceedings (see above).

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What is the difference between libel/slander and malicious falsehood?
In malicious falsehood the claimant must prove:

  1. the words are false; 
  2. the words were published maliciously; and 
  3. special damage has flowed from their publication unless the publication falls within certain criteria.


The words need not be defamatory, but they must be false.
 
In addition, the claimant carries the burden of proving all three elements which can make the claim more difficult than a libel claim.

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Does libel law apply to emails and publications on the internet?
Yes, although in certain circumstances internet service providers may not be liable for hosting defamatory material.

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If a claimant is successful in a claim what might be recovered?
Compensation for damage caused by the defamatory publication and to vindicate reputation, an apology (often in agreed terms) and an undertaking not to repeat the defamatory allegations are the main remedies usually sought by a libel claimant. However, it should be noted that the court cannot usually force a defendant to apologise, although if a court finds in the claimant's favour this will inevitably have a vindicatory effect on the claimant's reputation. 
 
The damages can be from one penny to upwards of £250,000 depending on the seriousness of the allegations, where they were published and whether the defendant's conduct has aggravated the harm caused.  In addition, any actual financial loss caused by the defamatory publication can be claimed.

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How expensive are libel and slander proceedings?
Substantial proceedings can be extremely expensive. However, we may be able to assist using our Conditional Fee Agreement (no win, no fee) scheme and also by obtaining After the Event Insurance.

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Privacy and Breach of Confidence

What is an invasion of privacy?An invasion of privacy can be defined legally as an unjustified disclosure of private and non-trivial information about an individual (including images), which causes distress to the individual. Recent cases have acknowledged that all persons, including public figures and celebrities have a reasonable expectation of privacy.  Although this claim has developed from the law of confidence, it is now substantially different from the traditional breach of confidence claim.

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What is a breach of confidentiality?A duty of confidentiality can be set out expressly in a written contract (for example, in an employment agreement), or the duty can arise in a number of different circumstances.
 
Where commercial confidences are concerned the more traditional approach (set out in the case of Coco v A N Clark) is applied:

  • Does the information have the necessary quality of confidence about it?
  • Has the information been imparted in circumstances importing an obligation of confidence? and
  • Has there been unauthorised use of that information to the detriment of the party communicating it?

 

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Is the truth or falsity of the private information disclosed relevant?In a personal privacy action the truth or falsity of the information disclosed is not relevant, although the truth or falsity of the material published may become relevant if the court needs to investigate the facts where a defence of public interest is raised.
 
In relation to commercial confidences it is unclear whether there is any confidence in false information. However it has been argued that where part of the confidential information is true and part of it is false protection may extend to the false parts of the commercial information.

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Within what time period must proceedings be commenced?A claim for breach of privacy must be brought within 6 years of the private information being published.
 
The limitation period for bringing a claim for breach of the confidence claim and/or for breach of contractual confidentiality clause is 6 years from the date of the breach.

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Who can sue?Only individuals can sue for breach of privacy, but all legal entities, including companies, institutions, and Governmental bodies can sue for breach of commercial confidence.

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What must a claimant prove in a privacy action?

When a claimant brings a privacy action, he must show that information of a private and non-trivial nature has been published and that there is a reasonable expectation of privacy in relation to such information. Traditionally a reasonable expectation of privacy normally arose only in situations where there was physical privacy, such as within the home or in a doctor's consulting room. It is now clear that a reasonable expectation of privacy may arise in a public context such as in a public park, on a beach or in a supermarket.
 
Particular categories of information that are regarded as personal private information include:

 

  • Details of intimate conversations or revelations;
  • Matters of personal identity including photographs;
  • Matters of physical and psychological integrity, i.e. interaction with others, even in a public context, may fall within the scope of private life;
  • Sexual relationships;
  • Details of an individual's emotional reactions to bereavement or to illness;
  • Details relating to an individual's home, including physical descriptions of the buildings and contents as well as conversations, communications or disagreements taking place in the home environment. (This does not extend to cover criminal acts);
  • Details about an individual's state of health and his medical treatment;
  • Information about private disputes and negotiations.

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What is the prime remedy for a breach of privacy or breach of confidence claim? An injunction preventing publication of the private information is the main remedy, because once private information has been published to a large extent the information is no longer private and the damage caused is very difficult to repair. It is therefore important to react quickly when given notice of a threatened publication of private information.
 
Where private information has already been published, damages may also be sought, together with an injunction preventing further publication if this is appropriate in the circumstances.
 
An injunction and damages may also be sought in a breach of commercial confidence claim.

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What do you have to prove to get an interim injunction?The court will grant an interim injunction to restrain threatened publication before holding a full trial if it is satisfied that the claimant is more likely than not to establish at trial that publication should not be allowed. Where the potential adverse effects of publication of private information are particularly grave or where a short-lived injunction is necessary to enable the court to hear an interim application, a lesser degree of likelihood will suffice.
 
When hearing an application for an injunction based upon personal private information or breach of confidentiality in a personal context, the court will be required to conduct a balancing exercise between the right to respect for private and family life and the right to freedom of expression.  Neither of these rights has precedence over the other.  Factors the court will consider are:

  • Where a conflict arises between these two rights it is necessary to conduct an "intense focus" on the comparative importance of the specific rights being claimed in the individual case;
  • The court must take into account the justifications for interfering with or restricting each right;
  • The proportionality test must be applied to each right.

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Are photographs treated differently from other private information?Yes. Photographs frequently convey more than words and are considered to be particularly intrusive. Photographs of people in public places such as public parks beaches and supermarkets, or photographs of individuals involved in sexual activity with prostitutes have all been held to be invasions of privacy even though the written information concerning such activities may not be considered sufficiently intrusive.

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Who can be sued?Individuals and companies who publish, or cause to be published, private or commercially confidential information.

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How can the claim in privacy or commercial confidence be defended?The main defences available to a defendant in a privacy/breach of duty of confidence action are:

  • That the information or images are not private in themselves, or that the material lacks the necessary quality of confidence;
  • That the information although private is too inconsequential or trivial to merit protection;
  • That the information is already in the public domain;

    The test to be applied is whether the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential. In the case of personal private information (as opposed to commercial secrets) it is not assumed that protection has gone forever by virtue of its having come to the attention of certain readers or categories of readers. However, in such circumstances protection may be lost if it would not be proportionate to the degree of interference that would be entailed for the defendant's right to freedom of expression.
     
  • That it is in the public interest to disclose the information;

    Categories of public interest are controversial but it is probably the case that if the defendant is exposing serious or criminal misconduct, or matters of legitimate concern to the public (for example the illness of a politician which means he is incapable of performing his governmental duties), it may be in the public interest to publish the information.
     
  • Consent to the publication of the information by the individual concerned.

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Does privacy law apply to emails and publications on the internet?Yes.

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If a claimant is successful in a breach of privacy or commercial confidentiality claim what might be recovered?The primary remedy is an undertaking from the defendant or an injunction ordered by the court preventing further publication of the private or commercially confidential information. Whether or not an undertaking is given or an injunction granted, a secondary remedy is compensation for hurt feelings and distress caused by the publication of private information or for damage done by the publication of commercially confidential information. An account of profits can also be recovered as an alternative - for example, where it can be shown that a newspaper or magazine has profited from publishing private information.

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The content of these Questions and Answers does not constitute legal or professional advice and should not be relied on as such. Specific advice should be sought about your specific circumstances. If you have a specific legal question you should address it to one of our lawyers.