Press Gazette’s Defamation 2014 conference last month provided a great primer on what the new Defamation Act means for journalists.
We have yet to see the first court case brought under the act (which only applies to stories published after 1 January this year) – so we don't know for certain how much it has changed things.
One of the architects of the act Lord Lester QC explained how it has been the biggest shake-up of libel law in a century.
The consensus from the top lawyers in the room at the Hippodrome Casino appeared to be that the Defamation Act is a positive step which is likely to lead to less libel cases and earlier settlements.
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Gavin Millar QC said: "Every journalist has to be part lawyer nowadays, particular if you are doing public interest work and risk attacking the reputations of the rich and powerful.
"There are the beginnings of signs that claimants are less willing to use defamation claims against newspapers."
Here's a video overview of the event:
My big take-homes from Defamation 2014 were as follows:
1. Keep copious and organised notes, don’t delete emails, preserve the ‘audit trail'. Judges will expect journalists who are defending contentious stories to be to able to provide evidence to back up their assertions.
2. It’s worth taking a close look at sections six and seven which substantially extend journalistic privilege and effectively provide get of jail free cards when it comes to getting sued for libel. This means that reports in a number of new areas, including statements in a scientific or academic journal (under certain conditions), are pretty much immune from libel actions.
3. A lot of the defences in the new act come down to whether or not something is in the public interest. Pinning down what the public interest in is not easy, but as Gavin Millar QC said at one point "it's like the elephant in the room, you know it when you see it". The act states that we have a defence if the statement complained of was, or formed part of, a statement on a matter of public interest, and the journalist reasonably believed that publishing it was in the public interest. But to use this defence you have to ensure the copy is balanced and thorough steps were taken to verify the facts
4. In the words of PA Media Lawyer editor Mike Dodd, use your 'antenna'. If you think a story is going to be legally risky, speak to your editor and/or a lawyer first – don't wait until you've received a legal letter before considering what your defences are.
5 . From Andrew Caldecott QC (pictured top) – make sure you put any allegations to the target of your story and give their response reasonable prominence in the piece.
6. Watch what you say in emails because they could be read out at the High Court (or even the Old Bailey). Caldecott: "The email that says ‘we’ve got the bastard’ may be true but is often best left to the canteen or refreshment room."
7. The new act is good news for business journalists. Profit-making corporations have to prove "serious financial loss" to win a claim for defamation, which is hard to do. Gavin Millar QC: "The act creates a much more rigorous test of what is defamatory where the claimant is a profit-making corporation". Remember local authorities are already barred from suing for libel.
8. Getting your facts right is still the best way to avoid getting sued. Times editorial legal manager Pia Sarma: "Checking your facts is still a big thing. I’m really interested in the public interest defence, it’s really important still to aim for accuracy and if you can’t check it, leave it out.
"Thrash it out with your editors early on, work out what’s in the public interest, what parts you want to publish and look at how you’re going to defend it. If it’s really contentious and you want to get it into the paper then make sure you’ve had the conversation early on because you want to understand are we alleging that they are actually guilty of this or is it something lower than that. It’s easy just to pitch it at the wrong height and be left having to defend it.
9. Press conferences anywhere in the world are protected by qualified privilege. Godwin Bussutil, barrister from 5RB, said: "A fair and accurate report of a press conference held anywhere in the world for the discussion of a matter of public interest will be protected by privilege [a complete bar on libel actions]." But note, that protection does not extend to the person speaking at the press conference.
10. You’re unlikely to get sued for libel over website comments, provided anonymous defamatory comments are taken down once they are flagged. Dan Tench from Olswang: "When it comes to online comments you are essentially immune from liability [under libel] if the poster is identifiable." That said, there's also privacy and contempt of court to take into consideration.
Pictures: JB Young Photography.
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