5A Defamation : Key Points
- What is defamatory? A statement is defamatory if, when said about a person or organisation and published to a third party, it would make people think less of that person/organisation.
- Who can sue? Any living individual
can sue for defamation; the dead cannot. Companies can sue if the defamatory statement is in connection with its business or trading reputation and individual directors may be able to sue too. - A class of individuals, if sufficiently defined and identifiable, can also sue, although the larger the class of individuals defamed, the less likely unnamed individuals would be able to take legal action.
- Fictional programmes can be defamatory if reasonable viewers would understand references within them to be referring to real individuals/organisations.
- Accidental defamation. It is possible to libel a person or a company accidentally. For example, the juxtaposition of someone's picture with spoken words or commentary may accidentally libel that person. Intention is irrelevant.
- Although other defences exist, the main defence to a libel action is being able to prove that the defamatory allegation is true.
- In live programmes, it is vitally important that presenters take swift and effective action to distance the programme and the broadcaster from any potentially libellous remark, which must not be repeated.
- Who can be sued? Any person who causes or is responsible for the publication or broadcast of a defamatory statement can be sued. In libel actions, the burden
of proving the truth of the allegations is on the party that makes the allegations i.e. the programme-makers and/or broadcaster. What is important, therefore, is not just that the story is true but that the story can be proved to be true. - Opportunity to Respond. Wherever potentially defamatory allegations are made, it will usually be necessary for a response to be sought from the subject
of the allegations on what is being alleged and fairly reflected in the programme, both for legal reasons and to comply
with the Code. - Involvement in a libel action is both costly and time consuming, as well as stressful. However, Channel 4 and Five will robustly defend its programmes and their makers where appropriate and where it is believed there is a good defence to the libel claim.