Writing tips: Libel

What are defamation and libel?

Defamation is any published material that damages the reputation of an individual or an organisation. As well as books, this covers material on the internet as well as radio and television broadcasts – so even drama and fiction can be defamatory if they damage someone’s reputation.

You can only publish defamatory material if it comes within one of the recognised legal defences. If it doesn’t, the publication will amount to libel and you may have to pay substantial damages. Slander is ‘defamation by word of mouth’.

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The purpose of libel law

Libel law protects individuals or organisations from unwarranted, mistaken or untruthful attacks on their reputation.

A person is libelled if a publication:

  • Exposes them to hatred, ridicule or contempt
  • Causes them to be shunned or avoided
  • Generally lowers them in the eyes of society
  • Discredits them in their trade, business or profession

Get your facts right

The most important point is to make absolutely sure that what you are printing or writing is true. Do not make claims or accusations that you cannot prove. Even if you think you can do this, be cautious. Proving things in court can be very difficult.

And the test of what the words mean is what a reasonable reader is likely to take as their natural and ordinary meaning, in their full context – what you intended as the author or publisher is irrelevant.

If you write something that cannot be substantiated, the credibility of your site, organisation or cause may be questioned. It can also land you with an expensive lawsuit and there is no legal aid for libel cases.

The burden of proof lies with the defendant

Almost uniquely in English law, in libel cases the burden of proof lies with the author or publisher and not the complainant. In other words, you must prove that what you write is true. The person you’ve targeted does not have to prove that you’re wrong.

Three tips for writing safely

Don’t rely on the literal meaning. You cannot solely rely on proving that your statements were literally true if, when they’re taken as a whole, they have an extended, more damaging meaning. Also, for example, if somebody was guilty of fraud once, calling him a fraudster in a way which might suggest he’s still doing the same may well give rise to a libel which can’t be defended. Be especially wary when referring to events in the past.

Don’t exaggerate in your claims or language. For example, a company may run a factory which produces certain chemicals. For you to suggest that babies will be born deformed as a result may get you into libel trouble.

Innuendo can catch you out. Your comments may not appear particularly defamatory taken at face value, but greater knowledge of a person or situation may make it problematic because of the innuendo. To say Mr Jones doesn’t recycle his waste paper may sound harmless enough. But to people who know that Mr Jones is a Green Party activist, the innuendo of the statement is that he is hypocritical in his politics.

Common mistakes and assumptions

Repeating rumours. It is inadvisable to repeat a defamatory rumour unless you are in a position to prove it’s true. Even if you are contradicting the rumour you should not repeat it. And adding ‘allegedly’ is not enough to get you out of libel difficulties.

Quoting others. If you publish defamatory remarks about people or organisations made by other people you will be just as liable to be sued as they are. So if you can’t prove the truth of their statements, don’t repeat them.

Drawing unprovable conclusions. It is a common mistake to draw unverifiable conclusions from the basic facts. For example, if Mr Brown is seen going into a hotel room with a call-girl, this does not necessarily mean he enjoyed a ‘night of passion’, and will certainly not prove that he did.

Irresponsible adjectives. Be very careful about the adjectives you use. A misplaced word can result in costly action. If you are campaigning about a factory that releases chemicals into the atmosphere, referring to the factory as ‘poisoning the atmosphere’ is inadvisable.

Defences against libel

The law lays down a few ways in which defamatory publications may be defended. If the defences succeed, the publisher wins. But if they don’t succeed, the publisher loses: the complainant will have been libelled and will therefore be entitled to be paid damages and their legal costs. The defences are listed below.

First, justification. The most usual defence against libel is to prove that the information published is true. But this can be a dangerous route because an unsuccessful plea could increase the damages against you because you will have increased the harm to the complainant. And remember, you must be able to deal with every libellous possibility, such as inference and innuendo.

If your statement infers something greater, it is not enough to prove that the statement is just literally true. Merely asserting something will not be sufficient to prove that it’s true – you will need witnesses and documents to back up assertions (whether they’re yours or someone you’re quoting).

Second, fair comment. This covers content, mainly opinion, that cannot by its very nature be true or false. To be properly defensible, these comments must be: based on fact, made in good faith, and published without malice.

On a matter of public interest, in 2001, Daily Mail lost a libel action brought by the former Tottenham Hotspur chairman Alan Sugar over the remark that he was a “miser” when he ran the club because he didn’t give his manager enough money to buy top class players. The jury were not sufficiently persuaded that there was any factual basis for making this comment. They didn’t deem it fair comment. He was awarded £100,000.

Last, privilege. Privilege is the defence where the law recognises that individuals should be free to speak their minds (and others to report what they say) without fear of being sued even if they get their facts wrong. It allows people to speak freely in court proceedings and debates in Parliament, and allows for such proceedings to be reported, so long as the reports are both fair and accurate.

Disclaimer

Do note that we’re a bunch of writers. We’re not lawyers. The advice above is provided as an assistance and guide, but can’t possibly cover every possible jurisdiction or circumstance. If in any doubt whatsoever, speak to a lawyer.

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