Page 40 - Law and the Media

1 Defamation

Marietta Cauchi

1.1 Introduction

The law of defamation protects the reputation of a person from defamatory statements made
about him to a third party without lawful justification. The English common law places great
value on the right of reputation. It is less concerned with freedom of expression. The result
is that those in the media are in much the same position as other members of the public when
it comes to defamatory statements, having only limited special protection.

The common law of defamation in England is based on case law codified by statute, most
recently the Defamation Act 1996. The origins of the law of defamation date back as far as
King Alfred the Great who, in the ninth century, decreed that slanderers should have their
tongues cut out. Over the years the penalties imposed upon those who transgress this branch
of the civil law have become financial rather than physical. The categories of defamation
have continued to grow. However, until the incorporation of the European Convention on
Human Rights into English law by the Human Rights Act 1998, the legal principles have
remained virtually unchanged. The Article 10 European Convention on Human Rights right
to freedom of expression is now the starting point in all cases involving restrictions on
expression.

Of all the legal problems impinging upon the writer or broadcaster bringing news and
information to the public it is defamation, specifically libel, which is the most common
problem, as well as the most expensive. Any individual whose name has been blackened by
a newspaper article or television programme will say that a libel case is a two-year nightmare
with massive expense and no prospect of legal aid. The newspaper or television company
will complain that libel actions are little more than lotteries in which claimants are unduly
favoured by the court and damages are completely unpredictable.

1.2 General principles

1.2.1 What is defamation?

A statement is defamatory if it tends to lower the claimant in the estimation of right thinking
members of society generally (Sim v Stretch (1936)).