Page 49 - Law and the Media

Law and the Media
In cases where writers or broadcasters are sued over factual pieces, justification will often be
the only plausible defence. In principle this should not be something that causes concern, as
truth and accuracy are supposed to be bywords for the profession of journalism and
broadcasting. In practice, success in raising the defence of justification is measured not by
whether the piece is true but whether the defendant can prove that the piece is true. Because
the law presumes that the defamatory statement is false, the defendant has the onerous task
of overcoming this presumption by proving that the statement is true. A defendant who
intends to raise justification should believe that the statement is true and should intend to
prove its truth at trial if necessary. The defendant should also have reasonable evidence to
support the plea of justification or reasonable grounds for supposing that sufficient evidence
will be available at trial (McDonalds v Steel (1995)). On average, a libel action comes to trial
between one to two years after proceedings have been issued. This significant lapse of time
often means that memories have become hazy. Defendants’ lawyers often find that some
witnesses no longer wish to be involved or cannot be traced. It is vital to have clear and
admissible evidence before publication. Notebooks containing rumour and hearsay are
insufficient.

The defendant must adduce enough evidence to satisfy the jury on the balance of
probabilities that the published statement is true. This means that it is more likely than not
that the statement is true. It is a lower standard than the criminal standard of beyond
reasonable doubt. In practice, however, where the published allegation is very serious the
defendant’s evidence will have to be convincing.

Meaning
The judge decides whether the statement complained of is capable of bearing the defamatory
meaning pleaded by the claimant. This is a matter of law (Mapp v News Group Newspapers
Ltd (1997)). The meaning that the statement bears in fact and the issue of whether the
defendant has successfully proved the statement to be true in substance or fact or
substantially true is a matter for the jury.

It is not enough for the defendant to plead that he believed a defamatory statement to be true
because he was repeating rumours elsewhere. The ‘rule against repetition’ means that it is
necessary for the defendant to prove that the subject matter of the rumour itself was true
(Stern v Piper (1996)).

Substantial justification
In order to succeed in the defence of justification, it is not necessary for the defendant to
prove every minor detail of fact, although he must meet the claimant’s challenge head on and
establish as true those allegations that effectively cause the defamation. This crucial element
has been described as the ‘sting’ of the libel.

The defendant must prove that the words used ‘were true in substance and in fact’
(Sutherland v Stopes (1925), Hoare v Jessop (1965)). For example, if the allegation is that
the claimant robbed the National Westminster bank in Chelsea at 11 am last Thursday, the
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