Tuesday, 26 October 2010

Publish and be damned? Er, not quite

It’s become a regular feature in newspapers. Small boxes of print, often buried towards the back, with someone’s name and the words: ‘An Apology’, usually followed by something along the lines ‘On 5th January 2010 we wrote that the footballer Mr Big Willy had had a three way with prostitutes in a cellar. We now accept that this was not the case and apologise for any distress caused to him and his family.’ Etc, etc.

So, how do these stories get into print in the first place?

It may surprise you (or maybe it won’t) to know that in media law, the lawyer advises the client what the risk is of printing an article. And it’s fair to say that for some media owners, the risk of publishing and the damages they may have to pay, is outweighed by the money they will make from the sales attracted by publishing the story in the first place.

Most journalists, of course, want to avoid any libel cases being brought at all. Over the years I’ve been in countless meetings with lawyers where we’ve gone through all the evidence before us and assessed the risk. Some of the stories I’ve worked on, particularly involving celebrities, but also involving ‘civilians’, particularly crime stories, have been a legal minefield.

Of course the best way to fend off any potential libel action is to get what’s known as a ‘Right to Reply’ before publishing; in magazines and newspapers, that’s why you’ll often see the phrase ‘Miss X was unavailable for comment.’ It’s there to show that the journalist at least tried to prove the allegations before the piece ran. And if you do find yourself with a potential libel action on your hands, try not to panic, and see if you can reach a peaceful resolution as quickly as possible.

So where does that leave us with blogs?

Well, best practice is always going to be a Right to Reply. There seems to be an assumption among some bloggers that you can post any allegations you like about individuals and companies, without having offered the person (or persons, or company) concerned a Right to Reply or contacting them to say ‘this is what I’m going to publish, do you want to say anything in response?’. But unless you’re really, really sure of your facts, this is a very dangerous game to play.

And what you can’t do, of course, unless you have a lot of evidence to prove your allegation, is try to damage an individual’s or a company’s reputation, or attempt to cause a ‘reasonable’ person to think less of them, or attempt to cause loss to their trade or profession, if you only have one side of the story. If you like flying by the seat of your pants, you can publish your blog post, but if the person (or person, or company) named or involved then contacts you to correct statements made in your blog post, you must act swiftly to either correct your original post, remove the original post, or post their corrections in full, if that is what they have asked you to do. (It goes without saying you should always try to seek a resolution, unless you happen to be a lottery winner or a close friend of the family is, for example, a top media lawyer.)

Of course, you may presume that if you live in... let’s say, Germany, it’s impossible for you to be found guilty of libelling someone who lives in... let’s say, France. But that’s not the case.

So, if you do find yourself accused of libel, what should you do? Well, there are defences for libel. You can prove the statement to be true, or it could be fair comment - so long as the opinion is based on true facts. The best solution is always to act quickly to either remove the areas of contention in your post, delete the post, or post an apology.

The first rule of publishing any allegation has to be: can I prove it? So you can blog for example that so and so committed a robbery, if they’ve been found guilty of that offence. But what you can’t blog is so and so committed a robbery and therefore they must also be a murderer.

You also have to be careful about what you say to other people online, because if you make comments about someone in a chatroom or forum it could be slander. And you have to be aware that comments left on your blog can be defamatory.

Worst case scenario: If you malign an individual to a company they work with in an attempt to cause them loss of earnings, by letter or by email or by phone call; if you then make your allegations on the phone or by email to someone else; and that someone then blogs those allegations, without following the best practice above; and if someone else then repeats the allegations, in comments, or on a forum, or on a blog post of their own – you could all find yourselves being sued for defamation.

If you link to defamatory material from your blog or website, that could get you in a whole heap of trouble, too (so always be sure about your sources).

And never be tempted to publish something about someone which you're not sure is entirely correct simply because you don't like them, particularly if you know your post could harm their financial or business interests. This could give rise to a claim of malicious falsehood. This is when you publish a statement without caring whether it's false or not. Malicious falsehood is harder to prove than defamation, as the complainant has to prove financial loss has been caused or is likely to have been caused, but I think most of us would agree it would be daft to take that risk to settle a score.

To sum up, your honour, if you try to suggest that someone with a good reputation has done something wrong with no actual proof that they have, that’s libel. The onus, should it go to court, is on you to prove your allegations, so you must make sure of your facts before publishing; suspicion, someone’s ‘word’, or the fact that you really don’t like the person you’re writing about, will not stand up under scrutiny if you make false allegations against them.

Finally, if you post on a forum a comment saying you wish someone would die in a bizarre accident involving a forklift truck , and lots of people see that comment, and a few weeks later the person you were speaking about does indeed die in a bizarre accident involving a forklift truck, well, things could go very badly indeed.

12 comments:

  1. Liz .. this is a brilliantly written article. Informative and interesting. I am going to send this straight to a person who has today announced they are stopping blogging because of vicious and untrue things being written about her. This distressed me. To print untruths is a wicked and cowardly act and I only hope I never have to defend against such things.. but in the mean time .. great post. I am sure many many people will find this very useful advice.

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  2. I've been reading reactionary fallout, although missed the main event (still struggling to understand Twitter)and am grateful for your post. Brilliantly written and very useful advice should I ever have the misfortune to offend ;-)

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  3. Who drives a killer forklift truck then? I think they have rear wheel steering which is a bit tricky imho. I'd add s127 of the Communications Act 2003 makes it an offence to send messages that are "grossly offensive or of an indecent, obscene or menacing character". The Communications Act deals with a lot of the crap that can and does go on online.

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  4. Hi Liz, as you know I sometimes lead workshops in freelance writing and/or social media.

    One of the most common misconceptions I've found students have is that if they don't name someone then they are safe.

    In fact this multiplies the risk. So if in article or blog post references to say, a series of events in a way that can be understood to mean they are connected despite them actually involving different people and you include opinions about any fewer than all of the people named then you can be very clearly libelling all of them.

    A case of this involved Banbury CID where it was reported "an officer" had perpetrated a very serious crime. All officers from that group successfully sued for libel.

    What's libellous:
    · exposes him or her to hatred, ridicule or contempt
    · causes him or her to be shunned or avoided
    · lowers him or her in the estimation of right-thinking members of society
    · disparages him or her in his office, profession or trade


    Implication

    Libel can often happen by implication rather than design. If a television programme showed someone being arrested, the clear implication is that they have committed a criminal act - if they had not, they would have grounds to sue the programme makers, unless the commentary had made it very clear that he was found to be innocent.


    What the claimant has to prove

    The claimant has to prove the following:

    · Meaning: the claimant must prove that the statement is capable of bearing a defamatory meaning.

    · Identification: the defamatory statement must be shown to refer to the claimant - at least in the eyes of a reasonable person.

    · Publication: the claimant must prove that the statement has been published or broadcast to a third party.


    What the claimant doesn’t have to prove is equally significant:

    · He doesn’t have to prove that the statement is false.
    · He doesn’t have to prove any intention to discredit. · He doesn’t have to prove any damage to his reputation. Some damage will be assumed, if the offending item has been published or broadcast.


    Identification

    For a libel case to succeed, the defamatory statement must be seen to refer to the claimant, even if that was not the journalist’s intention. Leaving out someone’s name is no guarantee of avoiding defamation, as there may be other clues that could lead to their identification.

    Don’t generalize !

    Not naming anyone can be equally problematic. For example, if you reported that "one of the partners of Pockton Holdings was involved in the insider dealing scandal", each of the partners of Pockton Holdings could argue that the statement could reasonably be taken to refer to him or her and they could all sue for libel.

    If you said that all estate agents were crooks, the category is so wide that no single firm could say it had been defamed. But if you referred instead to a smaller group, say to all the estate agents in the local area, each of these could claim they had been defamed.

    Any blogger writing a post, responding to a post (by commenting or reproducing) needs to be careful of the above.

    In a forum for example where lots of people comment in a negative way about a selected version of events, this is a clear lbel, as it is on a blog post.

    And yes the writer needs to take action to amend as requested when contacted.

    Thanks.

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  5. Thanks Linda,

    I think it's worth adding that journalists (like yourself and yours truly) have been fully trained in media law, attended libel refreshers and so on. The points you've made should definitely be read by all aspiring writers, bloggers and journalists.

    Alex - thanks for that link, very useful indeed. As far as the forklift truck goes... I'm a girl. I really don't know very much about trucks and stuff. And I did say the accident would be bizarre...

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  6. Wow, brilliant post Liz, thank you for sharing this

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  7. Liz, that was a thoroughly good read. Anyone in doubt about libel, should read this because you know your sh*t! What I'm fascinated by is people bandying around the term 'free speech'. What in the frickery is wrong with these people? Have they forgotten where they live? This is not the US of A! Bloggers as a BASIC must know about libel. I can think of a long list of people who could do with a 'refresher course'.

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  8. This is another reason I'm not keen on anonymous bloggers or people who use a pseudonym and fervently hide their identity. I think you should always take responsibility for what you write.

    I'm not interested in any infighting on blogs,and I'm sure there's a reason you've written this post that I'm not aware of, but it's good to know where you stand when you write on a public forum.

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  9. Brilliant post Liz. So so informative and useful. And the last bit made me snort.

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  10. Also you can't libel someone who already has a bad reputation - to put it mildly, such as a um, serial killer. :)

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  11. Good post.

    The forum point is an interesting one. I saw a case a few years ago where a 'rather enthusiastic driver' had made several posts on a car forum regarding his spirited driving.

    He was subsequently involved in a car crash in which he hit a biker. The forum posts were taken to court as evidence in the trial.

    The man himself brought it to a lot of people's attention after he was freed from jail, as a cautionery tail to people who post on car forums.

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  12. excellente chica, how u doing? :)

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