The Pros and Cons of the Libel Defences of Justification and Fair Comment Essay Example for Free

The Pros and Cons of the Libel Defences of Justification and Fair Comment Essay Libel law in England is incredibly tough, so much so, that if found to be liable of a defamatory statement, ‘a statement which lowers someone in the eyes of reasonable people ’ [Quinn 2009: 210] the consequences can be very costly to both the journalist themselves and their newspapers and therefore it is very important for the defences of defamation to be used to full effect an example of this is libel tourism and the case of involving Roman Polanski 2005.The magazine had said that the event had take place before the claimant’s wife’s funeral, but it had in fact taken lace after the funeral, which Mr Polanski completely denied. As it could not be proved, the claimant won ? 50,000 in damages. There are seven different defences for the act of defamation, of which two of these, Justification and Fair comment, we will analyse the advantages and disadvantages below. For the defence of justification to apply, the defendant must prove that what they have written and published is substantially true. If this can be proved by the defendant then they will have a complete defence against the claims of defamation. The defence of justification may only be used where the defendant has published a statement of fact. One of the main disadvantages of the defence of justification is that the burden of proof relies upon the defendant, which means that they must prove what they have published to be true. Furthermore, the claimant does not have to prove that what you have written is false or that any fact found to be false was damaging to their reputation. Another disadvantage of this defence is that ‘A defendant cannot rely on the defence of justification in relation to the publication of the details of spent convictions, as efined by the Rehabilitation of Offenders Act 1974’ [1] This Act has been brought in to help with rehabilitation of offenders and prevents journalists from acting in a malicious manner when relating to cases of this nature. An advantage of the defence however is that the journalist does not have to prove that what they have published was in the public’s best interests and furthermore they do not have to prove that they acted in a malicious manner. A further disadvantage to the defendant is that any rumour they chose to publish must be backed up by evidence of the accusation made within the rumour. This means that the defendant cannot base their evidence alone on a previous rumour. However an advantage to the defendant comes by way of a case where the claimant alleges that more than one fact within a publication is untrue. In such a case, the defendant need not prove that all claims within the publication to be true and must only prove that ‘the ‘sting’ of a libel’ [Quinn 2009: 212] to be true. This suggests that only the most important allegations, which are damaging to the claimants reputation, need to be determined to be true. This can be seen in the case of Turcu News Group Newspapers, where the defendant was sued after publishing a number of defamatory statements including some which were found to be untrue. However the statement made that the claimant was a ‘petty criminal with a long list of convictions’ and that ‘he was willing to take part in criminal activities’ were true, and the defence of justification stood on the grounds that the sting of the statement remained true. A further advantage to the defendant is that ‘A claim of justification need not only be based upon facts as were known at the time of publication; if other facts come to ight during the period between a claim and the case coming to court, they can be used to back up the defence. ’ [Quinn 2009: 214]. This appeared in a case in which involved Kate Moss and Channel 5, where a documentary was claiming that Moss had taken cocaine on a photo shoot in Barcelona and fallen into a coma. Kate Moss sued channel 5, but during proceedings she was captured in pictures taking cocaine. Due to such evidence, Moss chose to drop her claim. A final disadvantage to any defendant involves the likely case where, the defendant uses the defence of justification and is unsuccessful. In such a case ‘an unsuccessful defence of justification is likely to increase the level of any damages awarded. ’ [2] In the case of Archer v News of the World (1987) the newspaper was successfully sued by archer after claims were made by the paper which they could not prove, this in turn resulted in a payout to Mr Archer of ? 500,000 damages. It was later discovered that the claims made about Archer were true and he was consequently imprisoned for perjury. This case is a clear example of a situation where the jury are start struck and are therefore biased in favour of the claimant. The defence of fair comment applies to cases where the defendant has been accused of publishing a defamatory comment or opinion. For the defence to apply, the defendant must prove that, the words complained of were a comment or opinion, not a statement of fact, the words were about a matter of public interest, any facts which the comment was based on are true, or subject to privilege and that the comment was made without malice and so was an honest belief of the defendant. The first and main advantage of Fair comment applies to a case where the defendant can prove that the statement made, was one of personal opinion and one hich they fully believe ‘to have been made honestly’ [Quinn 2009: 216]. This was shown in the case of Branson v Bower (No. 1) where the claimant tried to sue on the grounds that the comment made could be taken as statement of fact. The court of appeal disagreed, stating that it was clear that the statement published by the defendant was an opinion. Another advantage of this defence is that much like that of justification, the defendant must not prove that each of the facts in the publication to be true, as long as they can prove that those facts commented on were true. In the case of Galloway v Telegraph Group Ltd (2006) the defendants claimed that they had based opinions upon facts they believed to be true about the claimant. The defendants pleaded fair comment but this was refused by the court stating that ‘the stories were allegations of fact’ [Quinn 2009: 217]. Again, a disadvantage of this defence, much like that of justification, is that it is the defendant’s responsibility to prove that ‘the underlying facts are true. If he or she is unable to do so, then the defence will fail. ’ [3] This appeared in a case involving Gordon Ramsey, where the defendant during a review complained that some scenes within the show were staged. The defendant could not back up these claims and consequently had to pay ? 75,000 in damages. Another advantage to the defence of fair comment is that any person may be entitled to comment, when the subject in matter is of interest to the public, due to either interest or concern at a matter which could affect them or another. A disadvantage to the defence of fair comment is where the claimant can show that what has been published against them has been done so with malicious intent. In such cases the defendant will not be able to use the defence of fair comment. This was shown in the case of David Soul v Matthew Wright, where the defendant criticized the claimants acting without having been to see the show. As he had not been to see Mr Soul’s play he had no facts to base his criticism on and consequently had to pay damages. A final advantage of this defence is the definition of fair comment. It is stated that ‘even very rude and critical reviews can be covered by the defence of fair comment, so long as the facts on which they are based are true. [Quinn 2009: 220] this basically means that it must only be proved that the facts upon which the opinion is based upon must be true for the defence to be used. This was seen in the case of Tse Wai Chun Paul v Albert Chang, the courts stated that ‘even where a writer is motivated by ‘spite, animosity, intent to injure, intent to arouse controversy or other motivation’ they can be covered by fair comment’. [Quinn 2009: 219] In conclusion, I’d say that in both of the defences the claimant has the advantage. The first of these reasons is due to the burden of proof, which the defendant holds, nd in turn puts the claimant in a no lose situation. The second of these reasons is the possibility for further damage to the defendant in a case where they cannot prove their innocence. This leaves the defendant in a position where they must risk further detriment to prove their case. Also, and finally, where a defence fails, this can prevent the public from knowing information which may be within their [the public’s] best interests, which could subsequently harm the good of the public. Due to the many implications and faults of the law, it is soon to be changed.