Page 41 - Law and the Media

Law and the Media
In order to prove defamation, the claimant must show defamatory language by the defendant
which:

Identifies or refers to the claimant, and
Is published to a third party.

The law presumes that the defamatory statement is false and that the claimant is of good
reputation. The claimant is not required to prove any actual damage to reputation or other loss.
The burden of establishing the truth of the statement or any other defence is on the defendant.

Defamation actions are heard by a judge and jury. In general, the judge determines issues of
law and the jury determines issues of fact. Legal aid is not available in an action for
defamation.

The real skill for writers and broadcasters and their editors or producers is determining when
statements which may be construed as ‘tending to lower the claimant in the estimation of
right thinking members of society generally’ can be published with a reasonable degree of
safety. Consideration should be given to the following:

Is the piece true?
Can it be proved to be true?
If not, is it covered by one of the other defences to defamation?
Is the subject of the piece likely to sue?

1.2.2 Libel and slander

Defamatory language is placed into two categories. The more common and more serious is
libel. Libel is defamation in writing or some other permanent form, such as a tape or video
recording. Radio and television broadcasts and computer-generated transmissions are
defined by statute as libel. Slander is spoken defamation or defamatory language in some
other temporary form. Although actions against newspaper and television companies for
slander are rare, the writer or broadcaster should always be conscious of the risk of making
a slanderous statement – particularly the investigative journalist who is checking allegations
of wrongdoing or confronting the wrongdoer in person. If the writer or broadcaster makes
defamatory statements about the wrongdoer to or in the hearing of a third party, he is exposed
to the risk of being sued for slander.

The distinction between libel and slander is relevant only to the issue of damages. Damage
is presumed in cases of libel. In cases of slander the claimant has to prove actual loss, unless
the allegation falls within one of four exceptions where damage is presumed:

1. An allegation that the claimant has committed a crime punishable by imprisonment
2. An allegation that the claimant is suffering from a contagious or infectious disease
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