Page 331 - Law and the Media

Law and the Media
Predictably, defamation actions that involve commercial entities as the pursuer have yielded
the highest awards. In Capital Life v Sunday Mail (1979) the Capital Life Assurance
Company was awarded £327 000 excluding interest and ‘expenses’, in other words costs, in
respect of a defamatory statement that they had engaged in unlawful business practices.

However, even without such features awards have been increasing at what is a worrying rate
for the media. In Baigent v BBC (1999) a total award of £186 000 was made to five family
members who ran a nursing home in Lanarkshire in the wake of a documentary saying that
the elderly residents were poorly treated. In Wray v Associated Newspapers and Another
(2000) the MP Jimmy Wray was awarded damages of £60 000 after a newspaper reported his
former wife’s claims that he had physically abused her. The judge conceded that the figure
chosen was ‘instinctive’. In contrast, Anton Gecas unsuccessfully sued Scottish Television in
1992 in respect of a programme that alleged he was involved with the death squad
extermination of Jewish civilians. The court said that if it had found in Gecas’s favour it
would have awarded £20 000 in respect of the allegations.

Awards of damages at these levels, whether granted by judge or jury, have proved resistant
to appeal.

20.3 Reporting restrictions

20.3.1 Defamation

Since the introduction of the Defamation Act 1996, fair and accurate contemporaneous
reporting of a public court of justice in Scotland is granted absolute privilege for the purposes
of defamation actions.

Such reports need not be full:

There is no duty on a reporter in a report of a law suit to make his report
exhaustive, it is . . . sufficient if the reporter gives the result of the litigation truly
and correctly.
(Duncan v Associated Newspapers (1929))

However, the report must give equal prominence to both sides (Wright and Greig v Outram
(1890)).

The publisher has the onus of proof as to whether the report is fair and accurate (Hope v
Outram (1909)).

In Cunningham v Scotsman Publications (1987) the court held that privilege applies to
documents ‘referred to and founded upon before the court with a view to advancing a
submission which is being made’, even if the whole document is not read.
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