Page 47 - Law and the Media

Law and the Media
1.2.8 Identification

The second element the claimant has to prove in an action for defamation is that the ordinary,
reasonable person would understand that the defamatory statement referred to the claimant.
The claimant does not need to be named in the piece, and can be identified by description,
photograph or other characteristic information.

In most cases, claimants will have no difficulty in establishing this element of the tort of
defamation, as they will have been named or pictured in the piece. However, in some cases the
issue of identity is not so clear. In this type of case the question for the jury is objective. They
must consider whether the ordinary, reasonable person would understand the defamatory
material to refer to the claimant. A writer or broadcaster may omit the name of the wrongdoer
from a piece but give broad hints as to who may be responsible in order to avoid the risk of
being sued. This can be a dangerous practice. In Hayward v Thompson (1982) the claimant,
Jack Hayward, argued that a reference to him in the Sunday Telegraph as ‘a wealthy benefactor
of the Liberal Party’ combined with a subsequent report in the Sunday Telegraph one week
later naming him specifically was enough to establish identification. The court agreed. The risk
extends to identification in other publications. As a result, stopping short of identifying a
wrongdoer can be problematic where another newspaper or programme carries the same story
and publishes the name and picture of the wrongdoer.

Another regular pitfall is the innocent publication or transmission of an accurate piece
followed by the discovery that an unknown third party with the same name claims to have
been defamed. Such ‘gold-diggers’ have ample precedent in their favour. The intention of the
defendant is irrelevant. What is important is the effect upon the reputation of the claimant
(Hulton v Jones (1910)). In situations where confusion might arise, writers and broadcasters
should take care to make the identification of their subject clear. The particular danger in
reporting court cases of confusing the wrongdoer with innocent people is avoided by
publishing ages, occupations and addresses.

Television producers should be careful about portraying innocent people on screen as the
broadcaster utters a potentially defamatory statement. A London CID officer won £20 000 in
libel damages because he happened to be walking out of a police station which was being
filmed by a BBC crew for a programme on corruption in the London CID. Although the
programme only referred to general allegations of corruption, the particular officer was
clearly identifiable from the film.

1.2.9 Publication

A defamatory statement may be thought, written or spoken – even to the person who is
defamed – but it does not become actionable until it is published to a third party because
reputation exists entirely on the belief of other people about the claimant. Communication of
the defamatory statement to the claimant only will not harm the claimant’s reputation and is
therefore not actionable.
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