How to avoid libel and defamation
This page was created by the BBC.
Updated: 23 Apr 2004
By BBC Action Network team
1. What are defamation and libel?
2. Get your facts right
3. Three tips for writing
4. Common mistakes and assumptions
5. Defences against libel
6. If a complaint is made
7. Feedback and comments
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
- Discredits them in their trade, business or profession
- Generally lowers them in the eyes of right thinking members of society For example, MORAL rights campaigner Victoria Gillick recently won a £5,000 settlement and an apology after taking libel action against the Brook Advisory Centre, a charity which gives sex advice to young people, over allegations that Brook had suggested Mrs Gillick “bore a moral responsibility” for an increase in pregnancies among teenagers. A fact sheet published by Brook contained the heading “What caused the teenage conception rate to rise in the 1980s?”, and listed a legal action brought by Mrs Gillick against the Department of Health over contraception guidelines as one of the causes.
Almost uniquely in English law, in libel cases the burden of proof lies with the author / publisher and not the complainant. In other words, you have to prove that what you write is true. The person you’ve targeted does not have to prove that you’re wrong.McLibel
In 1990 McDonalds served a libel writ on several members of a campaigning organisation over the production and distribution of the ‘What’s Wrong with McDonalds?’ leaflet. The legal battle between Helen Steel and David Morris, a gardener and a postman, and the McDonalds corporation became one of the most famous cases in British legal history, not least because it became the longest running British trial.To win the case, the pair would have to prove from primary sources the truth of their allegations about McDonalds. After hearing all the evidence, the judge (who did find that some of the allegations were true) ruled that the pair had libelled McDonalds because the evidence they called was not enough to prove the majority of their statements. They were ordered to pay damages of £60, 000. The trial was estimated to have cost millions of pounds in legal fees.
Libel is ‘defamation in a permanent form’
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.
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!Representing all sides
Presenting all sides of an argument is often good practice, but is not a defence against publishing defamatory remarks made by or about those involved.
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).Fair comment
Fair comment 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
Published without malice
On a matter of public interest In 2001, the 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.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.
6. If a complaint is made
Remember the burden of proof lies with the author
What follows does not constitute legal advice, but if a complaint is made against you or your campaign, you could consider one or more of the following steps, depending on how serious the complaint is or how far you wish to pursue your case:
Take legal advice as soon as possible and before responding to the claimant
Check the original statement and any associated investigative work collected before it was written
Consider withdrawing the original statement if, after checking, you think your words were mistaken
Perhaps do further investigative work to help explain your position
Keep all drafts and supplementary documentary evidence
Ensure all those involved in the writing and research of the statement are aware of the situation and aware they may have to provide evidence or statements
Inform your insurers, if you have libel insurance, and comply with their requests
If you have had material on Action Network rejected because it was potentially libellous, check through this guide to see why it might have been rejected. You will probably have to rewrite your original contribution, removing anything which cannot be proved in a court of law.
7. Feedback and comments If this guide helped you sort something out, please tell us!