Libel
Note: These are standard editorial procedures based on the law, but there can be no guarantee that a judge and/or jury might not see matters differently in a particular case. In case of doubt, check with a lawyer.Libel, in a nutshell, is publishing something bad about somebody that isn’t true. It differs from slander in that slander involves private communication. There are two kinds of libel: civil libel, for which you can be sued, and criminal libel, for which you can go to jail or be fined. Criminal libel is rare and not regarded as a practical concern by most journalists. These guidelines deal only with civil libel.
Libel has four essential elements. It must be:
• published
• directed at an identifiable living person
• defamatory (a fancy word for “bad”)
• false
To deal with each of these in turn:
Published includes (among other possibilities) being printed in a newspaper or magazine, broadcast by radio or TV, or posted on a website.
It applies to everything in the newspaper or on the website, including news from a wire service, letters to the editor, quotes, cartoons, display ads, and classified ads. The newspaper is responsible for its entire content and can be sued in respect of anything it prints in any form.
Even if the source of a libel (e.g. a politician, letter writer or advertiser) is ultimately to blame, the newspaper is still responsible and can be sued, along with the source or separately from the source.
Anyone connected with publishing the libel can be sued—the newspaper itself, the writer, the editor and anybody else. In theory even the printer, a store selling the paper, or a paper carrier can be sued, although these things don’t happen in practice.
Identifiable living person means anyone the reader can reasonably identify, even if the name is not given. If you write that the leadership at City Hall is corrupt, the mayor can sue, even if his name and/or title are not mentioned. Members of small groups can sue for general statements even if individuals aren’t singled out; if the paper publishes a statement that the creative writing department is full of perverts, any member of the department who chooses can sue. Corporations and incorporated organizations, which have the status of a legal person, can also sue.
Large groups of people cannot sue for general statements. If you wrote that all college teachers are perverts, no individual teacher could sue. But if you wrote that all college teachers are perverts and therefore Jones, who is a college teacher, must be a pervert, Jones could sue.
Non-incorporated organizations cannot sue as such. But if the story is written in a way that appears to apply to identifiable individuals of an organization can sue. I wouldn’t write that the stamp club is defrauding Canada Post, because it’s likely the club president would be deemed to have been identified as a crook by such a story.
Dead people, and their heirs, cannot sue. But if what you write about the dead implicitly defames the living, the living can sue—e.g. if you write that the late Jones sexually abused his children, his children could sue.
Defamatory means the allegation is bad enough that ordinary, decent people would think worse of the person defamed. Not everything bad is defamatory. To say that an instructor is ugly, or gives boring lectures, or tells stupid jokes, is not defamatory.
The standard definition of “defamatory” is something that “tends to lower the plaintiff [person suing for libel] in the estimation of right-thinking members of society.” If the statement would expose the individual to hatred, contempt or ridicule, harm her in her occupation, or cost him money, it’s defamatory.
Some examples: to say that someone is dishonest, untrustworthy, was fired from a job for cause, insolvent, unfit or incompetent in her job, cheats as an athlete, or violates his duty in someway is defamatory. Less obvious things can be defamatory too: if you write that somebody else owns what is in fact my house, you have defamed me.
To be defamatory, a libel need only “tend to lower” people’s opinion—whether it really affects anybody’s opinion or not. If you write that I’m a child molester, you have defamed me even if nobody in Canada believes you.
Defamation need not be explicit. It is possible to defame by innuendo—the conclusion a reasonable reader would draw from the story. Years ago, in the context of an argument about drinking, the Nanaimo MLA wrote in a newspaper column that the premier sometimes appeared not to be in condition to conduct the business of the legislature. He did not explicitly say the premier appeared to have been drinking—technically the premier might have had the flu or something. But in the context, the obvious meaning was that the premier had been drinking, and the premier won his libel suit.
Defamation can even be due to accidental juxtaposition. If you happen to lay out a page with a story and picture about the citizen of the year and another story on somebody charged with murder, and it looks as if the picture of the citizen of the year might belong with the murder story, you have defamed the citizen of the year.
False. Libel by definition is false. If I really were a child molester, it would still be defamatory to call me one, but it wouldn’t be libel. HOWEVER, there is a big problem with this.
If somebody sues you for libel, she must go to court and prove to the satisfaction of judge and/or jury that the story was published, that she was identified, and that the story defamed her. But she does not have to prove the story was false. You have to prove it was true. If you can, great. If not, you lose the suit.
This is actually fairer than it may sound. It is often impossible to prove a negative. I have never committed adultery, but it would be impossible for me to prove that. So if the burden of proof were on the plaintiff, newspapers would be free to accuse me of adultery, and there would be nothing I could do about it.
This means it isn’t enough for your story to be true. You have to be able to prove it’s true. This can be difficult, if for example your sources are unwilling to testify under oath, or if they are willing but the jury doesn’t believe them.
It is also necessary to prove the truth of the exact wording of the defamatory statement. If you write that I’m a bank robber and you can only prove that I robbed the 7-Eleven, you will lose the libel suit.
Defences against libel suits that DON’T WORK
There are a number of apparent defences against libel suits that do not work. These include:
Honest mistake. You’re still responsible, and people have lost libel suits for things published in total innocence. Of course, you’ll probably get dinged for less money for an honest mistake than for something printed irresponsibly or maliciously, but you’ll still lose.
Blaming your source. You’re responsible for whatever you publish. The plaintiff can sue you and the source together, or even sue you but not sue the source if he chooses.
“It was just a joke.” This works only if the judge and/or jury sees it as a joke. You can’t count on that.
“Alleged.” This word is worthless from a legal standpoint. Calling me an alleged child molester puts you in the same position as calling me a child molester.
Previous publication of the same allegation. If three other newspapers called me a child molester and I didn’t sue them, you might feel safe, but you aren’t. I can still sue you (maybe the fourth time is the last straw), and you can’t even mention the previous publications in your defence.
“Hey, he’s a politician.” Just because people often say nasty things about each other in politics (and sports, and some other fields) doesn’t mean the rules are any different.
One defence that works up to a point, but not as well as people think:
Retraction. It’s a myth that a paper can libel somebody in a page 1 headline, then retract the allegations the next day in 6-pt type on page 19 and get off free.
First of all, the retraction doesn’t count for anything unless it is as prominent in location and type size as the original allegation.
Second, the plaintiff can still sue you.
However, many people will accept the retraction and not sue. If they do sue, the apology shows good faith and you’ll probably be dinged less in court because of it. Finally, an apology limits the type of damages that can be awarded.
This is a bit technical, but if the newspaper publishes a “full and fair retraction” in the next issue after receiving the writ of libel, AND if the libel was published in good faith, for the public benefit, in honest mistake or misunderstanding of the facts, and did NOT allege a criminal charge, then the plaintiff can recover only “actual damages” (i.e. out-of-pocket losses, which don’t arise in most libel cases).
Retractions should be generous to the point of grovelling—this is no time to be snide or grudging. You might want to a lawyer about the wording. In certain cases you might want to see a lawyer about the wisdom of publishing a retraction at all. If you retract, you’re cutting off some of your other options, such as the defence of justification (see below). Nevertheless, a retraction is often the best way to go. If you’re wrong, admit it and apologize.
The defences that actually work:
• Justification. This is the defence of truth. If you can prove it’s true, it isn’t libel. But remember that this can be difficult (see above). Also, if you try it and lose, you will probably be dinged for more than if you had apologized. In practice, this doesn’t get used much, because if the story was true, the plaintiff knows that, and while she may bluster and even file papers, she probably won’t go through with the suit.
• Consent. If the plaintiff has consented to publication of the allegations, he can’t sue successfully. If you interviewed me and I told you I was a child molester, I have no ground for suing you. Also, if somebody else told you that and I agreed to sit down with you and tell you what really happened and why I’m not a child molester, you could safely print the allegation along with denial. But mere denial is not consent—if you call me up and ask me if I’m a child molester, and I shout “bullshit!” and hang up the phone, I haven’t consented to anything. Here again, you might have to prove consent in court, but people who have consented know that and probably won’t pursue a lawsuit.
• Privilege. This is a big one for daily newspapers. It makes it possible to print many stories that would not be possible without it.
You are free to print what is said in certain formal public settings, especially involving government bodies or agencies, even if it’s defamatory (and may turn out to be untrue). This covers Parliament and its committees, the B.C. legislature, city council, school board, the Malaspina board etc. as well as court cases (BUT SEE RESTRICTIONS UNDER CONTEMPT OF COURT) It also covers lawful public meetings held to discuss matters of public interest (e.g. an all-candidates’ meeting or a public hearing on the proposed convention centre). Finally, it covers bulletins issued by public authorities for public information, such as “wanted” notices, dangerous product recalls, health board closures of restaurants and so on.
It does NOT cover comments by politicians outside the meeting, even during the meeting or immediately afterward. (e.g. What the minister of Terpsichore says in the House of Commons is privileged; if she repeats the same statement to reporters in the hall five minutes later, or expands on the statement, that isn’t privileged.) It must be part of the proceedings of the meeting. Privilege does NOT cover one-party or one-sided meetings, press conferences, or “public meetings” in which a crank rents a hall and shares all his opinions with whoever turns up. It probably does NOT cover what the police, etc., tell you on the phone, as opposed to written notice. And it is dangerous to publish the contents of writs (papers filed in court cases not yet heard), which contain unproven and one-sided allegations.
For the defence of privilege to apply, coverage of the privileged material must be accurate, fair and balanced (defence as well as Crown in a court case, both sides of a political argument, the response as well as the accusation at a public meeting). A person defamed by privileged material has a right to respond to it with a reasonable statement of contradiction or explanation.
In court cases, the defence of privilege applies to testimony only while covering the actual case at the time. If a witness calls me a child molester when I’m on trial, you can report that, but you can’t dredge it up at a later date. (On the other hand, if I’m actually convicted, that will always be true and you can mention the conviction itself whenever you want.)
The defence of privilege will fail if the plaintiff can prove that the material was published primarily out of malice. Malice, at law, can mean 1) spite (I don’t like the guy I’m writing about); 2) ulterior motive—writing something bad about him because he’s my business rival and I want to drive his customers away, or 3) reckless disregard for the truth—it’s a good story and I don’t care if it’s true or not.
• Fair comment. This defence protects expressions of opinion on matters of public interest. It will be of special interest to writers of editorials and opinion columns. Among other things, it protects most (NOT all) criticism of politicians and other public
You are allowed to write any reasonable or even semi-reasonable opinion about a matter of legitimate public interest if you base it on facts. The facts must be accurately stated in the same article. Thus it is permissible to call Gordon Campbell a terrible premier and an untrustworthy politician because of Bill 29, the repudiation of contracts and the impaired driving incident. Somebody else might write that he’s a great premier and a principled statesmen because Bill 29 is strong leadership, the contracts had to be repudiated as a matter of fiscal responsibility, and the driving charge is irrelevant because he was on his own time; but both the positive and the negative opinions are fair game
The defence of fair comment applies also to such things as play reviews; plays may not be as important as government, maybe, but they’re offered to the public and reviewers have a right to comment on them.
There are some limitations to this. You can’t say Campbell is a terrible premier because he steals money, when in fact he doesn’t. That would still be libel. You shouldn’t flatly state that he’s untrustworthy without giving your reasons for it, because it then becomes an attack on his general character rather than an evaluation of specific things he has done.
Most importantly, you can’t attribute dishonourable or corrupt motives to anybody. With tuition increases, for example, you can say that Campbell is indifferent to the education of the poor, but you can’t say his purpose is to deny education to the poor.
Strictly speaking, due to a 1979 court decision, the “fair comment” defence is probably not available to newspapers with respect to letters to the editor (because the letters aren’t the newspaper’s opinion). In practice, editors have continued to treat letters to the editor as a forum for fair comment—there really isn’t much choice unless you want to cut them off altogether—but it’s worth bearing in mind that if a letter is really worth suing over (most of them aren’t), the victim has that option to sue the newspaper without suing the letter writer. The same rules would apply as to a columnist’s opinion.
Here are some examples of problems from letters and columns:
• One letter writer said another letter may have been written “in a deliberate attempt to inflame and mislead students.” The suggestion that the previous writer might have consciously chosen to write something s/he knew was false, for a dishonourable motive, is defamatory.
• Another letter writer attributed “several criminal acts” to “Gordon Campbell’s Liberal Party” and also called Campbell “a criminal.” This implies guilt of a Criminal Code offence; the writer gave no specifics that could either back up such an allegation or show that it was meant metaphorically. Criminal Code offences are things like robbery and assault, and libel law treats such allegations as more serious than other forms of defamation.
• An opinion column wrote of “the morons who enforce it” [the college’s unpopular parking policy]. This would be safe if there are a couple of dozen employees ticketing vehicles, but if there are only three or four of them, they could be deemed to be identified and could at least argue that “moron” is defamatory of them as individuals.
As with privilege, the defence of fair comment will fail if malice is the dominant motive. I wouldn’t consider political opposition to Gordon Campbell to be either “spite” or “ulterior motive,” but if someone really hates him as an individual, or wants to succeed him as Liberal leader, or is so opposed to him they don’t care whether allegations against him are true or not, those things would be malice.
Keep your notes
In order for the paper to help defend you, the writer, it is essential that you keep your notes, tapes and any documents you used in your articles. Without these you will be successfully sued for libel.
Keep a well-organized folder or box with old notes and tapes somewhere in your room in case one of your articles is called into question. Libel allegations can happen long after the article has been printed, so it’s important to keep these things for one year.
Content provided by the Martlet Publishing Society, with files from CUP.
