Some would say that we are increasingly seeing people express themselves on social media websites, such as, Facebook and Twitter. Though how many of those 'opinions' could be classed as harmless and innocent rants under the new laws of defamation?
The rise in defamation cases linked to the internet has been inevitable with the rise in technology. People are prone to relying on this idea of ‘freedom of speech’ no matter what the speech says and what circumstances surround it. The media itself has been seen and known to thrive on this very type of ‘gossip’ about celebrities, in order to expose the lives of many people if given the opportunity to. How is this rise happening, you ask? Well, with the increase of social media around the world, blogs, tweets and posts have failed to put in place the same kind of pre-publication controls that traditional types of media (for example, newspaper articles) use from time to time. As a result of this, there exists an ongoing battle between individuals trying to protect their privacy and the media trying to post allegedly private material.
So who is the winner in this type of war; the potentially sensationalised media who stand by freedom of speech, or the celebrities who struggle to maintain their privacy despite the public nature of their very lives?
Before discussing this debate too deeply, it would make sense to state what exactly the law condemns when an issue of defamation arises. The first necessary element, is that of publication. The claimant must show that there has been a statement published to someone other than himself. Secondly, the statement must refer to the claimant and this is where the court will decide whether the content defamatory or not. In order for the claim to succeed, the last element must be proven; the publication was made without lawful justification.
Making a Publication:
There are two types of defamation; libel and slander. The former must be of a written nature (which includes broadcasts under the Broadcasting Act 1990) and is 'actionable per se'. This means that the claimant does not need to prove that they have suffered any loss or damage as a result of the publication. Whereas, the latter must be published orally and the claimant must prove actual damage. Section 1 of the new Defamation Act 2013 has provided authority for this in that a statement is not defamatory unless it has caused 'serious harm to the reputation of the claimant'. However, there are exceptions to this rule. For example, if the spoken words accuse the claimant of committing a crime or suggest that they are unfit for their profession, then the damage can be presumed.
As the purpose of defamation is to protect reputation, the publication must be made to a third party. For example, if I were to publish a defamatory statement on this blog about a claimant, the third party would be you - the readers, or the 'right-thinking members of society' (Sim v Stetch). As mentioned above, the statement would also need to make reference to the claimant - even referring to the claimant's public nickname could get you into trouble!
The DA 2013 has provided far greater protection for publishers, using measures which underpin freedom of speech. The single publication rule has now been introduced under s.8 to prevent additional action being brought in relation to publication of the same material by the same publisher after one year (the limitation period). This means that when a statement is passed on, it no longer will be a fresh publication. The modern laws of defamation simultaneously and rather cleverly also safeguard the right to reputation as the court has the discretion to extend the limitation period whenever it is just and reasonable to do so.
Defamatory Nature:
As mentioned above, there is now the requirement of 'serious harm' by which the claimant must prove a reputational and/or financial loss due to the defamatory statement. It is interesting to see how these types of restrictions will affect claimants seeking retribution, as he/she would not be able to simply bring action against any negative statement made about them. Will this assist in changing society's perception of what is acceptable to speak and publish freely?
What standard of freedom is currently at? How far can a person go to feel justified in expressing what they believe as their opinions in the public eye? In recent news, Brenda Leyland clearly felt very strongly opinionated about the McCanns and the loss of their daughter, Madeleine. Others have had the same view regarding their suspicions of the McCann family and possible criminal offences, however the media appeared to hugely condemn Leyland for it.
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| Image courtesy of Emily Gosden - The Telegraph |
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| Image courtesy of Emily Gosden - The Telegraph |
Defences:
The DA 2013 appears to have added new defences in addition to those which existed in the old legislation. Amongst the defence of 'truth' (s.2), operators of websites (s.5) and qualified/absolute privilege (s.6-7) are the defences of public interest (s.4) and the defence of honest opinion (s.3). From a personal perspective, the defence of public interest (which was established in Reynolds v Times Newspaper) sparks my curiosity the most. The defence applies where the defendant can prove that the statement complained of was a statement on a matter of public interest and that he reasonably believed so. However, the key question is how one would measure what should be within the public interest and what would not. Surely that is down to interpretation of public affairs. The importance here, lies within reaching a consensus of what is vital to the public in a general sense.
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