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Basic Libel for Idiots
Original text by By Adam Porter, Year Zero, Dec 2002.
(Updated and edits © urban75, June 2009)
Libel is the written word. Slander is spoken.
There are two versions of defamation, libel and slander. Libel is when the defamation is written down (including email, bulletin boards and websites), and slander is when the incident relates to words spoken.
In the UK, if someone thinks that what you wrote about them is either defamatory or damaging, the onus will be entirely on you to prove that your comments are true in court. In other words, if you make the claim, you've got to prove it!
For example, if you said Peter Sutcliffe had never paid his TV licence in his life that would not be defamatory - or it is very unlikely to be. However, if you said the same about TV boss Greg Dyke, that would be.
Why? Because Peter Sutcliffe's reputation will not be damaged by the TV licence revelation (he is after all a mass murderer). Of course, his lawyers would still be free to bring the case to court, but it is very unlikely they would succeed.
Greg Dyke, on the other hand, runs the BBC , so to say he wilfully doesn't pay his TV licence could have a seriously detrimental effect on his career. He could be fired or his reputation damaged (note:Dyke has now left the BBC).
It is not for the judge or jury (at the outset) to decide how damaged he is - they just have to confirm that such accusations are false and damaging. Then the judge and/or jury decide on monetary damages.
These damages are weighed up using a number of methods.
How widespread was the news released? If it was plastered all over the UK's biggest newspaper, then it would be more damaging than if the story ran on page 13 of the Grimthorpe Herald or on a rarely visited website.
However, if specific key people had seen the allegations then that can be different. Let us say you emailed the top 200 managers and governors at the BBC about Mr Dyke never paying his TV licence.
That could be seriously defamatory. It could easily affect Mr Dyke's earnings (one way of measuring damage is to see if earnings are lost as a result) and/or mean that future employment could be difficult.
And it's not just the person making the allegations who can fall foul of the libel laws.
If your offending article about Mr Dyke was published in Magazine X, you could be sued. Magazine X can be sued. The people who drove Magazine X from their depot to the newsstands can be sued (the distributors). The retailers can also be sued. (see note)
Anyone who repeats allegations can also be sued. This is important. Seeing something written somewhere else doesn't mean it is true. Repeating allegations without making sure they are true is a very good way to get yourself knee deep in litigation.
For example, say you wrote an email to the top 200 managers and governors of the BBC about Mr Dyke never paying his licence. That email is leaked to Magazine X who print it without making sure it is true.
Although the mail's already been sent and read by all, by repeating the allegation they too are committing the same libel. 'Repetition is no defence' say lawyers. Because it isn't.
There are of course many grey areas. A magazine lost a famous case against a TV company because, although specific allegations made by the magazine were true they implied that the people from the TV company were deliberately misleading the public.
The allegation that was defamatory was not that certain facts were omitted by the TV people, but that they had deliberately set out to mislead. That was the defamatory part that lost the magazine people the case and their magazine.
To protect oneself is fairly easy. Don't make anything up. Check sources. Check again.
If something has been in the public domain for some time and no action has been taken then that means it becomes much harder for anyone to claim defamation.
If Mr Smith turns round in court and says, 'but two years ago this was published in Magazine Y and you didn't protest then, only when I put it in Magazine X,' it is a strong line of defence.
You can't defame nicknames when people don't know who they are.
So, if you spread the same Dyke TV licence allegations but called him Big Beardo McFluffy, he can't sue, even if he knows you are referring to him - unless other people know him by the same nickname.
On the internet the rules are exactly the same. There are no special internet defences. The only advantage is that web sites tend to have a smaller number of users, (so less people see it hence it's less defamatory so it's rarely worth the bother of going to court) and allegations can be removed promptly on protest from a defamed party.
On the web, the writer, the web site owner and the ISP can all be sued just like the writer, the magazine and the distributor in the print field. A link could also be potentially defamatory if you are linking to defamatory material.
There is also a defence of 'fair comment' which is somewhat vague but is basically there to stop someone being sued for saying they don't like Marks & Spencer or McDonalds or Piers Morgan.
You are allowed to say that - even if you were a famous star or a very persuasive writer and it could damage them financially. That's the law.
However libel does not extend to the dead. Nor is being abusive libelous.
So I can say "Keith Moon was a smackhead lover of the highest order" and it's no problem. In fact I could say "every human who ever existed was a smack dealing, gun running, uncle fucker."
This is completely okay. That's UK libel!
Note: After John Major sued Scallywag and New Statesman in 1989 he also sued all their distributors at the time. Many stopped distributing 'political' magazines like Scallywag and NS for fear of future law suits after this. Most of those small distributors now work in pornography. There are around 100 of them, none who work in politics. The potential re-opening of the Major case in the light of Edwina Curie's revelations have come too late to bring them back to the fold though.
Update 2006: Expert warns of more chatroom libel awards
The Guardian, Wednesday March 22, 2006
A landmark legal ruling ordering a woman to pay £10,000 in damages for defamatory comments posted on an internet chatroom site could trigger a rush of similar lawsuits, a leading libel lawyer warned today....
...Although ISPs have paid out for hosting defamatory comments, this case is thought to be the first time an individual has been found to have committed libel on a internet chat site.
"The obvious and immediate potential ramification is that there will be more cases like this," said Richard Shillito, a partner at the law firm Farrer & Co. "One sees on these sites particularly unrestrained comments that people make in the heat of the moment without thinking of the legal consequences."
"A lot of people post anonymously but it is possible to find out people's identity. I think people should read this judgment as a warning to be more careful about their comments."
» Guardian story
Update 2009: High Court ruling on bulletin board cases
The High Court has ruled that defamation on internet bulletin boards is akin to slander rather than libel.
Mr Justice Eady hearing a case regarding posts on an investors bulletin board (or forum) has said that such comments are not to be taken in the same context as a formal newspaper (etc) article and are more like slander due to the casual or conversational nature of them.
Mr Justice Eady stated that posts on bulletin boards "are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out...Those who participate know this and expect a certain amount of repartee or 'give and take'."
As such "When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions...People do not often take a 'thread' and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it."
Full article [Reading Room].
Sheffield Wednesday can't unmask 'saloon-bar moaners', says libel judge (Oct, 2007)
Kicking off the debate about free speech (BBC: Oct, 2007)
Now for e-libel (Guardian July 28, 2003)
Defamation Act 1996
UK defamation law
UKIP candidate wins £10,000 for internet libel (March 2006)