The first question when you consider a libel action: "Is what I have written basically true?

If it is not true in substance and in fact then you will be deprived of the two classic defences:
* Justification - you are justified in damaging a reputation because what you are saying is true.
* Fair Comment - the comment complained of has to be based firmly on fact.

The other great defence is Privilege - the recognition by the state that sometimes a person's reputation must be allowed to be wrongly defamed in the greater interests of free speech and open justice.

Until recently Privilege, as far as the Press was concerned, was largely confined to foreseeable occasions where the need for free speech is paramount. These occasions are listed in the 1996 Defamation Act.

In 1999 a judgment of the House of Lords in the case of Reynolds v Times Newspapers afforded the Press the chance to gain Privilege outside those occasions for public interest stories about events which no one could possibly foresee.

Most libels occur through carelessness or ignorance or the Press going out on a limb with a story that is not 100 per cent right.

If the journalists and their lawyers do their jobs properly there should be little danger. It is when assumptions are made or people get careless that the writs start to fly.

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"It's not us saying it - we're just quoting him." One of the most common causes of libel actions is repeating statements made by people you interview and not being able to prove the truth of what they told you. In the early 90s newspapers had to pay damages to the Birmingham Six after they quoted former members of the West Midlands police as saying: "In our eyes their guilt is beyond doubt."

"We're only denying a rumour." It is dangerous to repeat a defamatory rumour in any circumstances unless the newspaper is in a position to prove it is true. It is even dangerous to repeat the rumour for the bona fide purposes of contradicting it.

"We gave a fair show to both sides." Not enough - you still printed a libelous statement even if you let the person give his side of the affair.. The only safe way is not to print the libel unless you can prove it is true.

People add 2+2 and make 5: Example: An IRA terrorist blows himself up on a bus. Another badly injured Irishman is lifted from the wreckage and rushed to hospital and placed in a small ward guarded by armed detectives. The police give the press those bare facts. The press draw conclusions and report:
"Bus bomber under police guard. IRA man dies and accomplice injured."
The unfortunate Irishman had nothing at all to do with the bomber. He was totally innocent. He sued a number of papers before he died.

Careless Adjectives: Rumours had been circulating that 'tycoon' Owen Oyston was being investigated by the police. A junior reporter, having listened to the gossip, wrote the caption: Disgraced tycoon Owen Oyston. At that time Oyston did not have a stain on his character. He had never been officially 'disgraced'. He sued and the paper settled out of court. Shortly afterwards Oyston went down for six years for sex offences. The paper can't get its money back - it's the person's reputation at the time of publication that matters.

One assumption that used to be wrong but now has a grain of truth to it because of the Reynolds case: "It's in the public interest." (Details later)

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Words must be taken in the context in which they are used

The test of what the words mean is the test of the reasonable man - not the meaning intended by the person who wrote the words

Example: Radio City in Liverpool were sued for calling a travel agent a con-man.
They said it meant the agent deceived "some at least of his customers".
The travel agent said the words meant he was habitually dishonest or cynical.
Radio City produced 19 witnesses who said they had had lousy holidays. The travel agent produced 21 who said their holidays were fine. The travel agent won £350,000 damages plus costs.

Stage One: The literal meaning. Be careful not to rely solely on proving the defamatory description was literally true. If you call a man a thief in screaming headlines and his conviction was for stealing a packet of biscuits a couple of years ago you could be in trouble. The words have to be commensurate with the offence. A Liar has to be a serial liar, a mega-liar, not a fibber like you or me. Beware of raking up a long buried past which may suggest that a stain on the person's character still exists. What is at stake is the person's reputation today and not the reputation he has since lived down as in the case of John Profumo.

Stage Two: The inference a reasonable person would draw from the word.
Example: 'Tory boss Archer pays off vice girl.' Literally true and the News of the World could prove it. But they couldn't prove the inference that Archer had had a sexual relationship with the prostitute. It cost the paper £50,000.

Stage Three: Innuendo the words may not be defamatory to everyone but they are to a smaller group of people who are aware of additional facts or circumstances.
Example: To say Mr Smith is a socialist is not obviously defamatory but if readers know that he is member of the Conservative Party it might be defamatory because it imputes he is politically dishonest.

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"We're safe if we don't name them."
Not always. All a claimant has to demonstrate to the court is that his family and friends understood the offending article to refer to him. Therefore if , say, you allege that an unnamed police constable, aged 30, working out of the town's central police station, had mistreated a prisoner in the cells, there is the chance of all the constables in their 30s at the station suing. During the 1980s and 90s the Police Federation made good use of this aspect of libel law.
The more detailed the description the better. Get the constable named in an official police statement - that way it's privileged. (see Privilege later)

Group Defamation.
The law allows groups of people, rather than individuals, to sue as a body but the courts keep the numbers as low as possible.
Example: If you wrote "All lawyers are crooks" then plainly all the members of the legal profession could not sue because the reasonable man would know that many lawyers could not be crooks. But when a former policeman alleged that he had been forced out of a police dog-handling team because of anti-semitism, all 12 members of the team sued for libel and won. Watch out for similar small groups like trustees, school governors, etc.

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When a case comes to court the law starts with the presumption that the words complained of in the newspaper are false. It is up to the newspaper to prove they are true. It has always been a complete answer for a civil action for defamation to prove that the words complained of are true in substance and in fact.

The plea of justification must be broad enough to cover every libelous imputation in the statements. Where the words complained of give rise to an inferential meaning ( as in Archer above) it is not sufficient to prove they are literally true.

Justification is theoretically the simplest form of defence but at the same time it is certainly the most dangerous. An unsuccessful plea of justification could increase the damages.

The jury is entitled to take into account in assessing the damages everything that takes place right up to the moment when they retire to consider the verdict and compensate the plaintiff - not only for the actual defamation but for the insult to him , with all the attendant publicity of the newspaper arguing in court that what they wrote was correct.

Getting just a bit of it wrong.
The position of a defendant faced with justifying several distinct charges is eased to some extent by the Defamation Act which says you do not necessarily have to prove them all.

If, for instance, you call a man a murderer, rapist, arsonist, thief and liar and can prove the first four but not the fifth then the defence is probably OK because wrongly adding the label liar to a man you can prove to be a murderer, rapist, arsonist and thief is hardly likely to damage his reputation.

One drawback with this defence is that it is the plaintiff can cherry pick. In the example above he may choose to sue only on the allegation that he is a liar. The newspaper would not then be free to advance evidence about him being a murderer and so on.

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1. Fact:
a. You may accurately report what some public person has done and then say: "Such conduct is disgraceful" or
b. Without reporting what the man has done identify the conduct with a reference the reader can understand.

The important thing is that you enable your readers to judge for themselves how far your opinion is well founded.

There are two exceptions

1. Where the comment is based on privileged material such as a report of a court case and the facts mentioned in the report later turn out to be untrue.

2. A plea of Fair Comment will not fail because of some unimportant inaccuracy in the facts on which the opinion is based - a wrong date or place or a slight misrepresentation of an incident.

2. Good Faith: The defence will not succeed unless the jury is satisfied that the comment is one that an honest-minded man could make on the facts.

The one question that does not have to be answered is whether the comment is fair in the generally accepted sense of reasonable, just or moderate.

The test is: "Would any honest man, however prejudiced he may be, however exaggerated or obstinate his views, have said what this criticism has said? Is the comment relevant to the facts"?

The jury may think the comment is entirely wrong but if they are satisfied it is honest the defence will work.

What then would be classed as dishonest? One example was the judge's assessment of comments made by the controversial historian David Irving.

The judge said Irving was ..." motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence."

3. No malice: Evidence of lack of honesty on the part of the newspaper is called express malice - spite or ill will or some other wrong or improper motive. Apart from a history of ill-will the best evidence of express malice is that the newspaper knew that some of the facts upon which the comment was based were untrue. (But now see Malice in Statutory Privilege notes below)

(Readers Letters: If the paper prints a letter and both the letter writer and the paper are sued both may plead fair comment but the letter writer's defence may fail because of malice. The question of whether the writer's malice carries on to the newspaper has not been definitely resolved - but the indications are that the newspaper would not lose the defence because of malice.)

4. Public Interest: The person about whom the newspaper is passing an opinion must be in the public arena - he could be a local councillor, a sports star, a government minister, a judge, a local chef, an author, a newspaper editor etc etc - anyone who has placed himself or herself in the public eye.

The private conduct of such people is off-limits unless it has a bearing on their ability or qualifications for public office (for example Jonathan Aitken or MPs taking cash or questions).

People who are not in the public arena, who hold no public office and have done nothing to bring themselves into the public eye are off-limits - for example, a lottery winner who has asked that he be kept anonymous but has been unveiled by the Press and labelled Scrooge in a story that he refused to give money to charity.

Fair Comment Update

The libel action by Richard Branson against journalist Tom Bowers has resulted in a major change in the law affecting Fair Comment. For the first time an allegation concerning the state of a person's mind can be defended as a comment.

Bowers wrote of Richard Branson: " Sceptics will inevitably whisper that Branson's motive (for his bid for the national lottery) is self glorification".

Branson claimed that this imputation of his motive was one of fact rather than comment and was untrue.

Previously it had long been held that defamatory statements concerning a person's motivation could only be defended by proving that the imputation was true, something that Bowers plainly could not do.

But the Court of Appeal held that Bower's statement could be defended by Fair Comment since it was " something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark or observation."

Judges now will be able to rule whether words are capable of being comment (the jury decides if they are).

Fair Comment Update 2.

NO NEED TO BE MEALY-MOUTHED

Lord Nichols said in the Court of Appeal (Cheng v Paul) that malice in the shape of spite or ill-will by the writer need not negate the defence of Fair Comment.

"Actuation by spite, animosity, intent to injure or other motivation, whatever it may be, even if the dominant or sole motive, does not of itself defeat the defence of Fair Comment though it may be evidence from which a lack of genuine belief (thus making it dishonest) may be inferred."

He added: " Critics need no longer be mealy mouthed in denouncing what they disagree with "provided the objective limits of fair comment defence were established."

That is:

• The issue was one of public interest,

• The comment was readily recognisable as such and based on facts which were probably true or protected by privilege,

• The article explicitly indicated what were the relevant facts and

• It was a comment which could have been made by an honest person, no matter how prejudiced or obstinate."

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The defence of Privilege is an acknowledgement that on certain occasions it is necessary that a person be allowed to speak freely even if, when doing so, he falsely damages another person's reputation.

The occasions on which Privilege exist have been determined by Parliament (Statutory Privilege) or, over the years, by judicial precedents (Common Law Privilege)

1. Absolute Privilege which gives absolute immunity from an action for libel even if what was said was motivated by malice.
2. Qualified Privilege which provides the same immunity from an action for libel when reporting matters of public interest as long as certain conditions are met.

These conditions for qualified privilege are that the reports must be:

* Fair and accurate

* Published without malice

* On a matter of public concern

* And the publication must be for the public benefit - this is important. An MP can stand up in Parliament and, under the protection of Absolute privilege, label a man a killer. He cannot be sued for libel even if he knows, and it can be demonstrated that he knows, that he is making a false accusation. The reporter in the Press Gallery, however, has only qualified privilege for his report of what the MP said. If he checked the allegation and found that it was wrong and went ahead and printed it then he would lose the defence because it would plainly not be for the public benefit to label an innocent man a murderer even if the actual murder was a matter of public concern.

Explanatory note on Malice: In an action for libel being defended by a plea of qualified privilege the plaintiff is the one who has to prove there was malice behind the publication.

An example of the defence of qualified privilege being defeated by malice was seen in the case of the Newcastle council nursery workers who were suspended and sacked following allegations of child abuse.

They were later acquitted at Newcastle Crown Court after the judge said there was no evidence upon which a reasonable jury would convict.

Newcastle Council was unhappy with this verdict and set up an independent review team to investigate what had happened at the nursery. The review team was told it could not make any findings on matters which had been dealt with by the criminal court.

But the resulting report three years later was a public pronouncement on the guilt of the nursery nurses, Chris Lillie and Dawn Reed. Hundreds of copies of the report were published and received massive publicity in the local press.

Lillie and Reed sued the council and the Newcastle Evening Chronicle for libel. The council and the newspaper pleaded truth and qualified privilege in their defence.

The libel judge had concluded the allegations of child abuse were not true so the only realistic defence open to the council and review team was qualified privilege for a report by a team appointed by a local authority to hold a local inquiry.

Qualified privilege can only be defeated by malice which is notoriously difficult for claimants to prove. Malice is established where it is shown that the defendant had no honest belief in the statement or was indifferent to its truth or falsity.

The qualified privilege succeeded for the council but not for the review team.

The libel trial judge decided that the team's conclusions were based on 'gossip' and prejudice' and noted that they had included in their report a number of fundamental claims which they must have known to be untrue and could not be explained on the basis of incompetence or mere carelessness. This met the malice test.

The review team was ordered to pay £200, 000 to both Lillie and Reed, the highest level of damages permitted for libel.

Parliament has listed the occasions when anything said can be safely reported under the protection of qualified privilege. The two area of statutory privilege which most affect journalists are those covering the reporting of courts and the reporting of various meetings.

These are the main changes in those areas introduced by the 1996 Defamation Act:

A fair and accurate report, published contemporaneously of UK court proceedings held in public attracts Absolute privilege and is immune from an action for libel. This not only applies to UK courts but also certain other European courts and international tribunals listed in S3 of the '96 Act.

Qualified privilege now extends to fair and accurate reports of proceedings of any court (or legislature) anywhere else in the world.

Fair and accurate: If the report is unfair or inaccurate it forfeits both Absolute or Qualified privilege.
Example: In 1993 The Sunday Sport paid substantial out of court damages to a police officer who had been found not guilty of indecent assault.
The paper had reported the opening statement by the prosecution and the main evidence of the alleged victim but did not include her cross-examination by the defence which began the same day. During the cross-examination the alleged victim made a number of admissions which weakened the evidence she had given earlier and which the paper had reported. The Sunday Sport then briefly reported the policeman's acquittal. They should also have reported the admissions which effectively negated much of the adverse publicity the policeman had received.

Contemporaneous: If the court report is not published contemporaneously - roughly the next reasonably available edition of the paper - it loses Absolute privilege but is still protected by Satutory Qualified privilege if all the conditions attaching to that defence are met.

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 The 1996 Defamation Act lists the various occasions which are covered by Qualified Privilege and divides them into two categories..

In Category One there is no requirement to give a right of reply to a person who has been defamed. In Category Two there is.

Fair and accurate reports of proceedings in public of:

* A legislature anywhere in the world

* A court anywhere in the world

* A public inquiry by a government or legislature anywhere in the world

* Proceedings anywhere in the world of an international organisation or an international conference.

Fair and accurate copies or extracts of written matter:

* A copy or extract from any register or other document required by law to be open to public inspection.

* A notice or advertisement published on the authority of a court, or of a judge or official of a court, anywhere in the world.

* A copy or extract or extract from matter published on the authority of a government or legislature anywhere in the world.

* A copy or extract from matter published anywhere in the world by an international organisation or an international conference.

Written matter: A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by:

* a legislature in any member state of the European Union or the European Parliament

* The government of any member state of the EU or any authority performing governmental functions in any member state or part of a member state or the European Commission. ('Governmental functions' embraces, for instance, an officer of state, chief officer of police, local authority)

* An international organisation or international conference.

* A court in any member state or the European Court of Justice or by a judge or officer of any such court.

Reports of the entire Proceedings of:

* Any lawful public meeting
( a public meeting is defined as a meeting, in good faith and lawfully held for lawful purposes and for the furtherance or discussion of any matter of public concern whether admission to the meeting is general or restricted.)

* Any meeting of county council or district council committees or sub committees (not parish councils)

* Magistrates acting otherwise than a court exercising judicial authority (eg. a licensing bench)

* Any commission, tribunal, committee or person conducting an inquiry authorised by an Act of Parliament, by the Crown or by a minister of the Crown.

* A person authorised by a local authority to hold a local inquiry

* Any other tribunal, board, committee or body authorised by an Act of Parliament as long as the public and Press are not denied admission.

* General meeting of any company or association constituted, registered or certified by or under an Act of Parliament or incorporated by Royal Charter - not being a private company as defined by the Companies Act 1948

Reports of the findings or decisions only of any of the following associations or any of their committees or governing bodies:

* A UK ( or EU member state) association which promotes or encourages exercise in or interest in any: Art, Charity, Science, Religion, or Learning.

* A UK ( or EU member state) association which promotes or safeguards the interests of any: Trade, Business, Industry or Profession

* A UK ( or EU member state) association which promotes or safeguards the interest of any Game, Sport, Pastime, to the playing of which members of the public are invited or admitted.

NB. In all cases the association must be empowered by its constitution to exercise control over its members and to adjudicate on the conduct of its members and on matters of concern to the association

Press Conferences: A House of Lords ruling means that a press conference and the written press release which might be distributed at the press conference (even if not read out) are protected by qualified privilege on the basis that they are public meetings as defined by the 1996 Defamation Act. Take care, though, that the press conference is 'lawfully held, for a lawful purpose' as the Act requires.

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Fair and accurate reports of PROCEEDINGS IN PUBLIC of any :

LEGISLATURE - (Just the same as reporting debates in UK Parliament or reporting evidence given to select committees but would not extend to lobby briefings or anything of that sort because they are not proceedings to which the public is admitted.)

COURT - (criminal and civil at any level.)

PUBLIC INQUIRY - (as long as the person conducting the inquiry has been appointed by a government or a legislature.)

INTERNATIONAL ORGANISATION OR CONFERENCE - (The United Nations is an obvious on-going example. Amnesty International's annual meeting....a World Health Organisation conference.... that kind of thing.)

WRITTEN MATTER:

NOTICE OR ADVERTISEMENT published on the authority of a court, or of a judge or court official.

A fair and accurate copy or extracts from:

MATTER PUBLISHED ON THE AUTHORITY OF A GOVERNMENT OR LEGISLATURE -

(This could be something dramatic like the FBI's OE10 Most Wanted' More mundanely it covers the myriad reports issued by governments every day.)

MATTER PUBLISHED BY AN INTERNATIONAL ORGANISATION OR CONFERENCE. (Back to the UN, Amnesty International, W.H.O. etc etc)

E.U. MEMBER STATES

Present members: Belgium, Germany, France, Italy, Luxembourg, The Netherlands, Denmark, Ireland, UK., Greece, Spain, Portugal, Austria, Finland, Sweden. (Accession negotiations concluded with: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic, Slovenia. Could all be members by May 2004.)

Fair and accurate reports of THE ENTIRE PROCEEDINGS of:

ANY LAWFUL PUBLIC MEETING - this has to be a meeting lawfully held for a lawful purpose, and for the furtherance or discussion of a matter of public concern. (A meeting at which speakers urged people to burn down the houses of alleged paedophiles would not be covered because it was called to encourage something unlawful.)

A GENERAL MEETING OF A PUBLIC COMPANY formed under the law of a member state.

REPORTS OF THE FINDINGS OR DECISIONS ONLY of the following type of associations or of any committee or governing body of such an association.

1. The 'findings or decisions' could be a one-line sentence or 100 pages of why the association decided to take a certain decision: the important distinction is that privilege does not attach to the actual proceedings which led to the finding or decision but only to the authorised statement issued afterwards.

2. What links all the associations is that they must be empowered by their constitutions to:

A. exercise control over or adjudicate on matters of concern to the association eg the Football Association changing the offside rule and B. exercise control on the actions of any person subject to such control , eg the Football Association banning a player for taking drugs.

* An association formed to promote or encourage interest in:

ART ,SCIENCE, RELIGION, LEARNING.

An association formed to promote or safeguard the interests of any:

TRADE, BUSINESS, INDUSTRY, PROFESSION

An association formed to promote or safeguard the interests of any:

GAME, SPORT, PASTIME, to the playing of which the public are invited or admitted.

An association formed to promote:

CHARITABLE OBJECTS or other OBJECTS BENEFICIAL TO THE COMMUNITY.

A fair and accurate copy of or extract from a notice or other matter issued

for the information of the public by:

A LEGISLATURE in any member state or the European Parliament

THE GOVERNMENT of any member state or

ANY AUTHORITY PERFORMING GOVERNMENTAL FUNCTIONS in any member state or the

European Commission..........

( 'Performing governmental functions' is a very wide area. It certainly covers a statement by a chief officer of

police, an officer of state, the chief executive of a local authority etc)

AN INTERNATIONAL ORGANISATION OR INTERNATIONAL CONFERENCE.

A COURT in any member state or the European Court of Justice or by a judge or officer of any such court.

A fair and accurate copy or extract from any document circulated to members of a PUBLIC COMPANY:

* by or with the authority of the board of directors

* or by the auditors of the company.

* or which related to the appointment, resignation, retirement or dismissal of directors of the company.

NB: The defence of Qualified Privilege can lost if you fail to give the aggrieved person a right to explain or contradict the allegations made in the piece. This does NOT mean that you have to give his side of things in the original story. It means that subsequently you have to give him a reasonable right of reply if he asks for one. If you refuse to do so you lose the defence if he sues for libel. The occasions of privilege listed under " anywhere in the world' do NOT require a right of reply. Those listed under EU member states DO.

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To understand the concept of common law privilege think of a character reference.

The man who asks for it has a serious interest in finding out the truth about the man to whom he's about to offer a job.

The man who has to write the reference has a duty to tell the truth about the applicant, warts and all.

If, when writing that reference, he defames the applicant's reputation he would, without privilege, be vulnerable to an action for libel. But, if he writes the reference without malice, he is immune because of the privilege afforded by the Common Law.

Common Law privilege is based on the principle that a person who has a moral, legal or social duty to inform another person about a third party should be able to write freely without the fear of a writ for defamation hanging over every word.

Historically, the principle was difficult to extend to newspapers.

First there was the issue of whether newspapers had a moral, legal or social duty to inform readers of matters of public concern.

Second, did each and every reader of the newspaper have a corresponding duty or interest in receiving the information? Was the story of such concern to each individual reader that a wrongful allegation about a person whose life or conduct might never affect them should be protected by privilege?

The 1999 landmark decision of the House of Lords in Reynolds v Times Newspapers clarified the position.

The Law Lords decided that, in certain circumstances:
* The media did have a DUTY to impart information to its readers
* There was certain information that the public at large had a legitimate INTEREST in receiving.

The Law Lords laid down the criteria by which a judge presiding over a libel trial would decide whether the story was protected by common law privilege. So, if a newspaper prints an allegation against a person which is untrue and the newspaper is sued and pleads qualified privilege as a defence, the court will take into account the following before granting or withholding the defence of qualified privilege.

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

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

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

4. The steps taken to verify the information.

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

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

7. Whether comment was sought from the plaintiff. He might have information others did not possess or had not disclosed. An approach to the plaintiff would not always be necessary.

8. Whether the article contained the gist of the plaintiff's side of the story.

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

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

Lord Nichols, giving the leading judgment in Reynolds said a paper's unwillingness to reveal its sources should not be held against it when it claimed privilege.

"Above all," he said, " the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog.

"The court should be slow to conclude that a publication was not in the public interest and therefore the public had no right to know, especially when the information is in the field of political discussion.

"Any lingering doubts should be resolved in favour of publication."

An example of the way in which judges apply the Reynolds' criteria is contained in the Court of Appeal's judgement when The Sun appealed against a High Court libel victory by the former Liverpool goalkeeper Bruce Grobelaar who had been accused by the paper of throwing matches.

The Court accepted the Sun's claim that the High Court jury's verdict was perverse and stripped Grobbelaar of the £85,000 he had been awarded.

But it rejected the Sun's second point that the paper's coverage, anyway, was entitled to the protection of qualified privilege following Reynolds.

The paper's handling of the Grobbelaar story, said one law lord in the Court of Appeal , was a sustained and mocking campaign of vilification.

Whether or not a newspaper report gets qualified privilege under Reynolds is based on an assessment of specific considerations relating to the way in which the paper covered the story.

Lord Justice Simon Brown said there was much to criticise about the the tone of the stories (Reynolds: A newspaper could raise queries or call for an investigation. It need not adopt allegations as statements of fact) and the circumstances of the publication..

" Here we are concerned not with a single article but with massive and relentless coverage of the story over seven separate daily issues of the Sun, generally spread across several pages and under prominent headlines," he said.

" Moreover, so far from these publications "raising questions or calling for an investigation", they asserted Mr Grobbelaar's guilt in the most unequivocal of terms: he was, the Sun proclaimed, a self-confessed cheat, who "must never be allowed to play again".

"Certain aspects of the coverage demonstrably went beyond what Mr Grobbelaar had in fact admitted on tape.

"By its headline reading 'I let in three goals and picked up £40,000', the Sun was plainly implying that those goals had been deliberately let in whereas Mr Grobbelaar's actual admission was that he had selected the Newcastle match to be lost ' because I knew ... there's fuck all chance of winning at Newcastle.'

" Other features of the coverage calculated to add credence to the central allegation of corrupt match-fixing were unsupported even by Mr Vincent's evidence.

" These included a banner headline 'Grob the liar does a flyer' implying that Mr Grobbelaar was at Gatwick with a view to evading justice rather than to play in an international

" And the claim that Mr Vincent was a "close friend" who "was appalled at [Mr Grobbelaar's] corruption", and had "decided to speak out for the sake of the keeper's loyal fans", rather than a paid informant in vengeful mood against Mr Grobbelaar for having brought him to penury."

Lord Justice Brown said there was much to criticise about the publications in question and those responsible for them.

"The language used was in the highest degree emotive: 'The ultimate betrayal'; 'He fouled the field of dreams'; 'Secret code of Mr Fix-it'; 'Shame will haunt Grob for the rest of his life'.

" These are just a sample of the many headlines used in this sustained and mocking campaign of vilification. Having paraded Mr Grobbelaar's guilt, the Sun revelled in his downfall.

"There was in addition a lamentable involvement of his family. Whilst he was being confronted at Gatwick, other Sun reporters repeatedly knocked on the door of the family home where his wife and children were, asking for her comments and taking photographs.

" Another headline read: 'Shameful secret has Deb in tears.' Furthermore, in one of the editions complained of, the Sun's published questions to Mr Grobbelaar included: "How much of what's been happening have you told the children about? Have they been getting a hard time at school?"

" The articles, in short, were calculated to embarrass not only Mr Grobbelaar but also his wife and children.

"There can be no doubt that considered as a whole this newspaper campaign carried prejudgment of guilt to its uttermost limits.

" It is difficult to dispute the criticism that the Sun took upon themselves the roles of the police, prosecuting authority, judge and jury.

" Can a succession of defamatory publications of this nature attract the defence of qualified privilege? How is the balance to be struck?

" The ultimate question, of course, is whether the general public was entitled to receive the information contained in these publications irrespective of whether in the end it proved to be true or false.

" Who, in other words, is to bear the risk that allegations of this sort, convincing though no doubt they appear to the newspaper when published, may finally turn out to be false?

" To my mind there can be only one answer to these questions. If newspapers choose to publish exposés of this character, unambiguously asserting the criminal guilt of those they investigate, they must do so at their own financial risk.

" Given the obvious commercial benefits attending this style of journalism - the editor here ordered an increase in the Sun's print run in advance of its Grobbelaar exclusive - and the substantially reduced level of damages awards now recoverable under modern libel law, it seems to me absurd to suggest that the Sun will be discouraged from pursuing its investigatory role unless protected by qualified privilege.

" On the contrary, the protection of publications of this nature would in my judgment give rise to the altogether greater risk that newspaper investigations would become less thorough, and their exposés more sensational, (even) than at present.

" Recognising though I do that we "should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, [and that] any lingering doubts should be resolved in favour of publication" (as per Lord Nicholls in Reynolds), I reach the clear conclusion that these publications judged in the round should not be held protected by qualified privilege. I have, indeed, no "lingering doubts" whatever.

" Obviously the defence would have applied had the Sun merely passed on their information to the police and the FA.

" I would regard it as applying, too, had the Sun chosen instead to publish a restrained piece couched in the language of suspicion and allegation rather than, as here, an unqualified assertion of guilt.

" With regard to these publications, however, I would unhesitatingly rule that the defence is unavailable."

Update: Geraldine Proudler, a lawyer who acts for The Guardian, analysed the way in which the courts had so far applied the Reynolds factors. Of six cases only two papers had been granted qualified privilege after the courts, in effect, had examined the quality and seriousness of the journalism behind the offending stories.

Ms Proudler's conclusions

1. The tone of the article is crucial - if the journalist represents serious allegations as being facts this will almost certainly cause a qualified privilege defence to fail.

2. It is very important to give the individual a proper opportunity to comment on the allegations and then report fully what he says - however far-fetched his explanation seems.

3. In a public interest case, qualified privilege can provide a defence when the journalist has got his facts wrong but ONLY when he properly applies the Reynolds factor.

Alastair Brett, the Legal Manager for Times Newspapers, provided a checklist for how newspapers could bring a public interest story within the Reynolds criteria:

The newspaper must be able to demonstrate that:

1. The subject matter is of genuine public interest or concern

2. It has done its best to seek a response/comment from the person attacked in the piece

3. The source of its information is honest, reliable and knowledgeable i.e not driven by malice.

4. It has taken appropriate steps to verify the information and

5. It has adopted a suitable tone in the piece i.e calling for a proper investigation rather than adopting what we have been told as gospel.

In practical terms this means

a. We must set the scene and flag up the public interest point (i.e exposing a crime, protection of public health and safety, misleading statements and/or hypocrisy by those in public office etc)

b. The article should not be written from a first-person point of view but rather... " The Manchester Evening News has learnt that there are serious concerns surrounding..." with a finishing call for a further or fuller investigation into the matters/allegations contained in the article.

c. We should not include material which is pure rumour and suspicion and for which there is no basis of any kind other than pure conjecture.

d. Most importantly we must be able to say we made every effort to get a full response from the claimant and

e. We must obtain all or any supporting documents (particularly from confidential sources) prior to publication of the article.

Pre-Publication Checklist

1. Is the story unambiguous and clear in its meaning? Are you saying precisely what you mean to say?

2. Can you prove what you have said is true? e.g

Is it actual "fraud" or really "financial mismanagement"?

Did he really "lie" or was he making an innocent mistake?

Was it actual "corruption" or an "unusual payment" possibly involving "financial irregularities"/

3. Is there a hidden or inferential meaning?

e.g the vicar was seen at 6 Shepherd's Market (a well known brothel)

4. If no one is named, is someone still identifiable (and therefore able to sue)?

e.g a number of people will know the claimant is the person referred to.

5. Have we interviewed the subject of the story?

It is essential to get the subject's reaction to the allegation.

If a person is attacked in the columns of a newspaper he is entitled to have his reply published in that newspaper and, as far as he is concerned, that reply is privileged.

But if the person goes further than necessary to defend his own reputation and uses the occasion to attack his adversary he will lose the protection or at least provide evidence that he is actuated by malice. His reply must be relevant to the charge he professes to answer.

The newspaper could be privileged in three ways:
1. Privilege derived from the person defending his reputation through its columns.
2. Privilege deriving from the 'right of reply' provisions of the Defamation Act 1996. (see later)
3. Privilege deriving from the 'duty' and 'interest' principle. The paper owes a duty (a) to the person who has been attacked in its columns and (b) to its readers who have a corresponding interest in receiving the person's reply.

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This barrier to a court action for libel is afforded by Sections 2-4 of the 1996 Defamation Act.

It is specifically designed to settle the matter without going to court. Any or all of the following might be included in a settlement.

* Suitable correction

* Sufficient apology

* Publish correction and apology in a manner that is reasonable and practicable in the circumstances.

* Pay to the aggrieved party such compensation (if any) and such costs as may be agreed or determined to be payable

NB. The offer to make amends must be in writing and expressed as an offer under the terms of S2. The court can be called in to decide on any differences which arise between the parties.

This in fact would mean that the court, for example, could decide where the apology should go in the paper and how prominently it should be displayed.

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Any statement in disparagement of goods or their quality is defamatory if it reflects on the owner or manufacturer in his character as a person or a trader.

Imputations that give most cause for complaint are dishonesty, carelessness or incompetence.The imputation of improper motives is a common libel risk.


In the case of Walker Wingsails Systems v Yachting World the magazine contrasted the manufacturer's striking claims for a yacht's performance with those achieved by the journalist who test-sailed her. The article also revealed that the company's claims of impressive sales 'deals' were in fact returnable deposits rather than firm contracts.
The manufacturer sued and said the article meant he had deliberately misled the public by his publicity material.
His wife, the sales director said that effectively the article called her husband and herself 'charlatans and liars.'
Yachting World claimed Fair Comment and denied the article meant the manufacturer had been dishonest but maintained the firm had made its claims carelessly and irresponsibly. They lost.

Lesson: The fact on which comment is based must be correct. In the Yachting World case the manufacturer claimed the magazine, when making its criticisms, had failed to point out that the boat when tested by the magazine was far heavier than it had been when the manufacturer's performance claims were originally made and, in addition, its bottom had become badly fouled.

Fair comment also fails if the plaintiff can show that the defendant was motivated by malice. This did not necessarily involve telling lies. If someone publishes defamatory material by way of comment recklessly, without considering or caring whether it be true or false, then they are treated as if he or she knew it was false - ergo:no fair comment.

Which? always sends the factual results of its tests to the manufacturers but never the comments they are to make about the products.

Justification a good defence in consumerism but be careful you have the facts straight. Bovril, the meat extract company, collected damages when a book said the product contained sugar. The statement (which was incorrect) implied the company was lying when stating the contents of its product.

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One of the aims of the Act was to make libel actions more accessible to the public. Libel still remains the only civil action for which you cannot get Legal Aid but if plaintiffs are willing to accept damages of £10,000 or less they can take advantage of the new 'fast track' procedure. This, of course, makes newspapers much more liable to be sued.

The summary procedure under Ss 8-10 of the Act aims to assist the ordinary litigant by controlling and reducing the role of the jury without abolishing it - thus making libel more predictable, more accessible and quicker and cheaper for the ordinary litigant.

In a suitable case a plaintiff wanting a quick apology and modest damages will not be forced to incur huge legal costs in getting them.

Claims will be dealt with without a jury.

The court may dismiss plaintiff's case summarily if satisfied it has no reasonable prospect of success and there is no reason why it should be tried.

Equally, Court may give judgment for the plaintiff if satisfied there is no defence which has a realistic chance of success.

Summary relief consists of any or all of the following:

* Declaration that the statement was false and defamatory

* Order to publish suitable correction and apology

* Damages not exceeding £10,000

* Injunction restraining further publication

Newspapers can be sued for articles on their web sites as well as in the paper itself. Each 'hit' is a new publication of a defamatory statement. It is, therefore, essential to remove an offending statement from the electronic archive as quickly as possible.

If, afterwards, an offer of amends is made under S2 of the Defamation Act 1996 it may be useful for your lawyers to insert something on the lines of the following draft paragraphs in their Offer of Amends letter:

"In addition to the above we will of course notify various licensed data bases of the error/damaging section in the article and ask that this be deleted in its entirety/the relevant paragraph/sentence be deleted from the story. Exactly the same will happen to the article as it appeared on our website - the on-line edition of the newspaper.

"Should your client want us to write to any named individuals or companies to say that the article was wrong and how we have apologised; to your client, we are of course happy to do so. Please could you let us have any such list of people/companies as soon as possible".

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SECTION 12 of the Human Rights Act applies to the factors a court must take into account when considering whether to grant an injunction stopping information being made public.

1. If the newspaper is not present or represented at the hearing then an injunction can not be granted unless the court is satisfied:

a. The person applying for the injunction has taken every practicable step to notify the newspaper about the hearing
or
b. There are compelling reasons why the newspaper should not be notified.

2. No injunction should granted unless the court is satisfied that the applicant is finally likely to be able to establish that publication should not be allowed.

3. During it all the court must have regard to:

a. the importance of the newspaper's right to freedom of expression
b. the extent to which it is in the public interest for the material to be published

while at the same time keeping in mind any relevant issue of privacy.