Reputation

Reputation under the law The law of defamation in the UK is in place to protect the reputation of individuals and some corporate bodies and while it is not my intention here to become a detailed guide to the law of defamation as it effects journalists, I do want to examine how the law of defamation works in the UK to protect reputation. The first thing to be absolutely clear about is that libel is not directly connected to truth or accuracy. You can publish plenty of untruths about people without defaming them, provided they are complimentary enough. Defamation is about damaging their reputation and reducing their human dignity and that may not hang on whether the statement is true. Whether a statement has a defamatory meaning depends on whether it is likely to make people think less of the person described. The test was described by Lord Atkin in 1936 as ‘one which injures the reputation of another by exposing him to hatred, contempt or ridicule or which tends to lower him in the esteem of right-thinking members of society’. This can apply to their personal life, but also their work and professional life. You could, for instance, describe me as ‘an appalling violinist, incapable of picking his way through the simplest piece of music’, as I can’t play the violin and so have no reputation for so doing. Apply this description to the famed violinist Nigel Kennedy, however, and it might well be seen that this could damage his reputation and so is defamatory. However, shower me with the kind of accolades about violin playing that Kennedy deserves and I could not sue, as although the compliments might be lies, they would not be defamatory and would not expose me to hatred and contempt, unless I could show that there was some sarcastic or malicious innuendo in the statements that actually exposed me to some form of ridicule despite the apparent complimentary nature of the statements. Libel is defamation in permanent form and there is no requirement on the complainant to prove damage or loss either financial or damage to reputation as this is assumed if the words are deemed to be defamatory. The mere fact that the person’s reputation has been defamed is enough. Slander is defamation in transitory form, usually word of mouth (although not broadcast which is held to be a permanent form), and here there is a requirement to prove financial damage. So, for instance, describing a trader as a crook to a would-be customer who then decides against making a purchase might be slander and could be shown to have damaged the trader financially. Malicious

falsehood is another form of damage to reputation but in this case the information published must be false, published with malice and must have caused some sort of loss. So to say that a theatrical show has been cancelled even though it hasn’t could be a malicious falsehood. Malice is an important component of defamation and is described as spite or ill will, but can also cover any improper motive or attempt at personal gain. It underlines the strong ethical thread that runs through the law of defamation. All too often defamation is about damaging someone’s reputation for low purposes whether that is simply to make money or is more connected with deceit, spite or some other immoral purpose. If one publishes something defamatory in good faith for morally sound reasons, then it is much easier to publish corrections and apologies if appropriate and this may go a long way to ameliorating the damage caused. But to publish something recklessly or even maliciously purely for commercial gain or for spite is morally reprehensible. Of course news organisations often publish material that damages reputations for what they believe to be morally sound reasons. Stories in 2009 about MPs and their excessive expenses were clearly defamatory to many of them, but the stories were firmly in the public interest and true and so no law suits were launched. Although the stories damaged their reputation, they were a fair and reasonable discussion of matters of public concern; it was, after all, our money they were spending. There are two main reasons for publishing potentially defamatory material. The first is simply that freedom of expression means that we should have the right to talk about people and events that might affect our lives and, of course, we all enjoy gossiping about others. However, this may not be a good enough reason, on its own, to puncture someone’s dignity and potentially damage their reputation, even if the information published is true. The second reason for publishing is that the material is in the public interest. This, as we have discussed before, goes further than merely interesting the public. We may well intrude on a celebrity’s private life a little to say that they have been seen out and about with a particular person; however, to go further and damage their reputation by saying they have been having an affair with that person without a good public interest defence is to either risk a suit for privacy or one for libel. If the information is true then a suit for invasion of privacy might follow; if it is not true then the information may be defamatory and we can expect a suit for libel as it would be damaging to that person’s reputation in that it would risk their marriage and suggest they were not a person their spouse (or others) could trust. Of course, if there is a public interest in exposing the affair, showing the hypocrisy of someone whose public persona is of someone who puts family first, for instance, then that might be sufficient justification. There are several issues to consider when journalists publish or broadcast something that might damage someone’s reputation. The first of these is identity. Will the person being written about be identifiable? If you use their name and address, then of course they will be. But it is more complex than that. If you write about a John Smith, and give no further details other than to go on to defame him, then any John Smith who can reasonably prove he might be the person to whom you are referring can sue, even if it isn’t the John Smith for whom you have the evidence required to support your allegations. You need to ensure that the only person you are defaming is the one you can prove is doing what you allege. The second thing that has to be proved is whether the words are defamatory. If you were to allege criminality then the words would almost certainly be defamatory, but there are other things you could write that for some people would be defamatory and possibly very damaging, but which for others would be entirely harmless. You need to examine the words carefully to see if they might damage their reputation. To say the Archbishop of Canterbury doesn’t believe in God could be defamatory, but to suggest that Richard Dawkins did believe in God would also risk a law suit. If, though, the remarks are fair comment based upon true facts then that might be sound enough. The final point to consider is whether the piece was written with malice. Being able to prove that the

words were written in good faith in the belief they were right won’t defend against a defamation suit, but they might lessen the amount of damages or allow you to withdraw from the suit at less cost. A journalist or editor facing a libel suit has several defences that can be used in court.