Page 69 - Law and the Media

Law and the Media
The first two are broadly concerned with compensation, and the third is aimed at punishing
the defendant.

Compensatory damages
Compensatory damages aim to put the claimant back in the position he would have been in
had the defamatory material never been published. Under this heading the claimant is entitled
to recover the monetary equivalent of everything he has lost and suffered as a result of the
defamation.

There are two components to the compensatory award. Special damages amount to a sum
equal to the actual financial or material loss suffered by the claimant. Damages for distress
and injury to reputation are an intangible loss, and are more difficult to calculate. The jury
must assess the effect of the defamation on the claimant’s feelings (McCarey v Associated
Newspapers Ltd (No 2) (1965)).

Aggravated damages
Aggravated damages are awarded where the behaviour of the defendant has somehow added
to the hurt and injury to the claimant that resulted from the mere publication of the
defamatory words. Various factors may give rise to an award under this category of damages.
Anything that looks like a campaign of vilification, even if many of the derogatory things
said about the claimant are true, might qualify, as would repetition of the defamation after
the original complaint is made. Failing to publish the claimant’s denial or explanation, or
making no attempt to check the defamatory allegations with him, could also be said to
aggravate the injury. Similarly, failing to apologize and persisting in a plea of justification are
normally put forward with some success as arguments for awarding aggravated damages.

Exemplary damages
In certain circumstances the jury in a libel action may decide that the defendant should be
liable not only to compensate the claimant for the wrong committed but should also suffer
punishment for the way he has behaved. The appropriate course in such cases is to make
an award of exemplary damages. They are a purely punitive measure that will only apply
where the jury are satisfied that the defendant showed a cynical disregard for the feelings
of the claimant by knowingly publishing the defamatory statement in the hope of profiting
from it.

In John v Mirror Group Newspapers (1997) Elton John was awarded exemplary damages
because the Mirror deliberately published for profit a defamatory statement about him.

1.6 Costs

Having to pay damages is, of course, not the only financial penalty an unsuccessful
defendant has to bear. He will usually also have to pay the entire costs of the action,
including those of the other party. Although the award of costs is a matter for the discretion
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