10 pt test for bloggers on defamation


11:39 pm - May 26th 2008

by Sunny Hundal    


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Over at mbites, journalist Mike Butcher has published some information and advice relating to defamation and blogging.

Bloggers should therefore be aware of the 10 point test below from Reynolds v Times [1999] UKHL 45. Most critical are the requirement that the subject of the article must be given the precise allegations that are to be published and a meaningful opportunity to respond to them and the gist of that response should be published in a balanced way.

The table below is designed to act as a prompt or checklist.

The 10 point test

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

In plain English: This affects the rest, if it’s career ending then all the more important that due caution is exercised.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

In plain English: The hook on which everything else will be hung, this is the reason the public should know, irrespective of the fact that the writer can’t prove its true and it might not be.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

In plain English: What is the quality, how reliable are they, how direct is their knowledge? Are they biased, holding a grudge or beyond reproach? Are they being paid for the story? The answers to these questions should inform the writer of the level of verification necessary. Even if the identity of the source is withheld—as may be appropriate, these questions must be asked and answered.

4. The steps taken to verify the information.

In plain English: What or who verified the source’s information? What steps were taken to verify even if unsuccessful or did they not bother? Who did not verify?

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

In plain English: What is the quality? Are they uncorroborated allegations or the subject of official inquiries, investigations or findings? Rumor and speculation has no status nor does the premature allocation of blame. Care should be exercised.

6. The urgency of the matter. News is often a perishable commodity.

In plain English: News is a perishable commodity but is there an urgent need for the public to be told of untested and highly damaging allegations? The writer’s own interest in a scoop is not relevant nor is their convenience or deadline.

7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

In plain English: A meaning opportunity to respond to the precise allegations should be given. Door stopping, calls with half an hour before print/broadcast and ambushing are not a proper opportunity to give a measured response to very serious allegations.

8. Whether the article contained the gist of the claimant’s side of the story.

In plain English: Formulaic references to a denial may not be enough nor any longer will the one paragraph at the end provide sufficient balance to an article full of allegations of the utmost seriousness laid out in great detail.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

In plain English: Sensational will cost the writer as will adopting mere allegations as facts, premature allocation of blame.

10. The circumstances of the publication, including the timing.

In plain English: The writer’s subjective belief as to the truth of the story is important.

Where publication is continuing in an online form –once the writer/publisher is advised of its untruth or the commencement of a libel claim –they can lose the benefit of the defense if continuing to publish without correction or qualification. So a story that originally qualified for the defense can lose it later if events render continuing publication irresponsible in light of facts of matters which have changed. It is now common practice for notices to be affixed online to inform readers that the item is the subject of a libel action.

He also says right at the beginning:

It turns out that bloggers – along with the rest of the media – are also now able to make use of a special form of privilege, known as “The Reynolds defense of Responsible Journalism.” This requires a Defendant (that’s you the blogger) to show that the publication was:

(1) in the public interest

(2) that the you met the standard of Responsible Journalism on the date the blog post went live

Key to this is that the defence is not dependant on proving Truth, which is usually the defense a media outfit relies on and is often really hard to get at. That is a big deal. In other words, you don’t have to prove what you are blogging about someone is true, but you have to prove you met the standard of “Responsible Journalism” before you pressed the Publish button.

So if you publish material of public interest “in any medium” then bloggers, by definition, can use this defense.

I know many of you are interested in this area, and there have been numerous discussions around libel law and blogging given the willingness of a certain blogger to call for his lawyer mates at every opportunity. So I thought I’d follow Mark’s advice and spread the word.

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This article does not provide legal advice but rather general information. It is not a complete discussion nor a substitute for legal advice. This is general information provided on an as-is basis and no warranties are given and no relationship created.

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About the author
Sunny Hundal is editor of LC. Also: on Twitter, at Pickled Politics and Guardian CIF.
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Reader comments


It is nice to see something to help bloggers in this matter. A lot of them do their best to adhere to “Responsible Journalism standards” whether or not they think they will ever have to mount a Reynolds defence. But it is quite difficult without access to what that sort of thing is. I doubt many bloggers have the spare income to join the NuJ.

The Reynolds defense is a notoriously flimsy one to take and should only be used if all others fail.

Some guidance cut and pasted from my old revision notes:

A defamatory statement is one that either:

Exposes the claimant to hatred ridicule or contempt,
Causes them to be shunned or avoided,
Lowers them in the eyes of right-thinking members of society; or
Disparages them in their office, trade or profession.

Burden of Proof:

Claimant must prove 3 things:

1. Words are defamatory: A right thinking member of society, using their intelligence and judgement, would consider that the words read in their natural and ordinary meaning, or by inference or innuendo, would consider them to be defamatory of the claimant.
2. Identification: A reasonable reader generally, or a reader with specialist knowledge would understand the words to refer to the claimant. There is no safety in not naming someone (Morgan v Oldhams Press) Or half heartedly naming someone. It is also possible to libel a group, providing the group is not too big and has a group identity (Banbury CID v News of the World)
3. Publication: Words must be published to a third person. Every fresh publication is a fresh libel.

Best Defences in order of strength

Justification,
Fair Comment,
Absolute Privilege,
Qualified Privilege.

Justification: an absolute defence.

True and applies to statements of facts.
Must be able to prove truth in substance and in fact, in their natural and ordinary meaning, and of any inference and innuendo.

Innuendo: hidden meaning for people with specialist knowledge.
Inference: suggested but not said.

The best defence to take is justification (i.e it is provably true)

Unless you can be sure of that, you are on dodgy ground. If you are forced to use the Reynolds defense then you are on very dodgy ground.

Reynolds is less dodgy than it was, thanks to a recent case concerning Searchlight and (who else?) the BNP:

http://www.guardian.co.uk/media/2006/jun/05/mondaymediasection13


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