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.