Page 44 - Law and the Media

Defamation
allegation that an unmarried woman spent the night with her boyfriend in a hotel would have
lowered her in the eyes of the average person in the 1920s, but would be unlikely to do so
today.

Most of the categories of defamatory language are obvious. To suggest that a person is a
thief, a fraudster or a cheat will always be defamatory. It is also defamatory to suggest a
person is incompetent or unqualified in his trade or profession.

An allegation of criminal or immoral behaviour is usually defamatory, although it must be
remembered that the attitude of the ‘right thinking member of society’ towards morality is
likely to change with the passage of time. In 1959 the celebrated Daily Mirror columnist
Cassandra (in reality the writer William Connor) wrote of the American pianist Liberace:

He is the summit of sex, the pinnacle of Masculine, Feminine and Neuter.
Everything that He, She and It can ever want...

The article went on to liken him to:

. . . a . . . deadly, winking, sniggering, chromium-plated, scent-impregnated,
luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of
mother-love...

Liberace claimed the article suggested he was homosexual, and sued for libel. At the end of
the trial the jury agreed with him and awarded the then substantial sum of £8000 in damages
(Liberace v Daily Mirror Newspapers Ltd (1959)).

The issue of whether an allegation of homosexuality is defamatory was aired before a libel
jury again in 1992. Jason Donovan, an unmarried Australian actor and singer with a huge
following amongst British teenagers, sued a youth magazine called TheFace for suggesting
that he was homosexual. Since Donovan had previously gone on record to say that he was
not gay, he also sued the magazine for damages for the implicit suggestion that he was a
hypocrite. The jury awarded £200 000 to Donovan, which caused an uproar amongst certain
sections of society who protested that being thought of as gay is not something that can
damage a person’s reputation. Ironically, Donovan’s reaction was to issue a statement that
broadly agreed with this viewpoint. He waived the £200 000 damages and proclaimed that
his primary motive in suing the newspaper was to clear his name of the slur of hypocrisy. A
decade after the Donovan case the ‘right thinking member of society generally’ may not
agree that it is defamatory to allege a person is homosexual.

It is not defamatory to say someone owes money, but it is defamatory to say that a person
cannot or will not pay his debts (Winstanley v Bampton (1943)). It is not defamatory to
criticize a person’s service or product, but it is defamatory to say someone is unfit for his
profession or is incompetent in his business. In practice, it may be difficult to distinguish
between these points of view (South Hetton v North Eastern News Association (1894)).
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