The Right to a Good Name

Your parents probably taught you the old rule that if you don’t have anything nice to say about someone, then you shouldn’t say anything at all. 

Following this advice on your broadcasts, podcasts and social media will make your mum and dad proud but also keep you out of legal trouble!

This is because everyone has a legal right to a good name. 

We Have Free Speech in the UK, Don’t We?

Well actually, NO. 

The concept of free speech in the UK is really a myth. You can only speak or write freely after obeying certain laws made in the UK and also governed by organisations such as the European Court of Human Rights.

In the United States, it’s different as there’s a legal right to free speech under the First Amendment of the US Constitution. This doesn’t exist in the UK. 

What Is Defamation?

Defamation is all about ensuring the legal right to a good name. 

The word Defamation literally means to “de-fame” someone. In other words, ruining their credibility or harming their reputation.

The law says everyone has a right to a good name throughout their lives, unless there’s undeniable evidence to the contrary such as being convicted of a crime.

Time and society changes. What was considered defamatory 50 years ago may not be a problem today, for example calling Elton John “gay”.

Defamation is divided into two parts – LIBEL and SLANDER.

•       LIBEL is written Defamation in a newspaper, book, magazine, website, social media such as Twitter/X or Facebook 

•       SLANDER is spoken Defamation. Anyone making a claim for Slander must prove actual loss or damage, for example that someone has lost money or their job.

Despite broadcasting and podcasting dealing in the spoken word, anything defamatory is considered to be Libel rather than Slander because it’s effectively ‘published’ to a large number of people through transmission.

People sometimes also take legal action for MALICIOUS FALSEHOOD. This means a statement is a lie told with malice. In other words, the person making it knew what they were saying was false and would cause harm or damage.

What Is Libel?

Libel is anything published or broadcast which “tends to”:

•       Expose someone to HATRED, RIDICULE, CONTEMPT or DISGRACE.
•       Lead someone to be SHUNNED or AVOIDED.
•       Injure someone in their BUSINESS, OFFICE, TRADE or PROFESSION.
•       Lower someone in the eyes of “right-thinking members of society generally”.

The use of the phrase “tends to” means claimants don’t have to prove any of these things happened. The burden of proof is on you (see later).

Someone who brings a claim for Libel is called a claimant and the person defending it is a defendant. 

What Can Be Defamatory?

All sorts of things can be potentially defamatory ranging from accusing someone of taking a bribe to calling them a liar, being a fraud or a cheat, taking illegal drugs, being a paedophile or terrorist, misusing their position for personal gain and committing a crime they didn’t do.

If you falsely accuse someone of being a thief who steals money, for example, you’ve ruined their reputation because others may not now trust them or do business with them. They can then take legal action against you for defamation – and if you can’t prove what you said, you will lose the case and a lot of money. 

Who Can Claim for Libel and What Has to be Proved?

Any living individual can start a legal claim for Libel. For a Libel action to succeed against you, someone ONLY has to prove the statement you made was:

•       Defamatory
•       Refers to them
•       Published or broadcast by you
•       Did serious reputational harm

You can’t defame the dead.

In England and Wales, Libel actions must be started within one year of first publication or broadcast. In Scotland, the limit used to be three years but a new law in 2021 brought it in line with the rest of the UK and it is now also one year. 

Businesses, companies and organisations can also start a Libel action if they can prove serious financial loss.

Some people are easier to libel than others. For example, an Olympic legend, family man and charity worker compared to a disgraced former pop star convicted of child molestation. That’s because to lower your reputation depends on how good or bad your reputation is in the first place. 

People take libel action for many reasons. For example, to clear their name; to make money; to scare off other media from saying negative things about them; and because not taking action will make them look guilty.

There are also many reasons why people do NOT take libel action – the prohibitive cost (although contingency arrangements – no-win-no-fee – are available); they revel in the notoriety; they fear more could come out about them; they don’t want publicity; and of course, that what was said about them is actually true. 

The Burden of Proof is on YOU!

Almost uniquely in English law, the burden of proof in Libel cases lies with the broadcaster, podcaster, writer or publisher NOT the claimant.

In other words, YOU must be able to prove that what you say about them on air or on your podcast or write on your blog or social media page is actually true. The person you’re talking about doesn’t have to prove that you’re wrong or any statement about them is false. 

For example, if you described someone on a radio show, podcast or in a tweet as a “junkie” and they took legal action against you, it’s up to you to prove in court that they’re a habitual drug addict.

One of the most effective ways to protect yourself against the threat of Libel is to use only verifiable facts.  A verifiable fact is one that’s capable of being proven true or false. 

So, ask yourself – Is this true? Can I prove it? Would I like this said about me?

Interviews and Guests

You’re responsible for what your guests or interviewees say on the radio or on a podcast. As the producer or presenter, you’re the one broadcasting or distributing the content and will therefore be held legally responsible for what it says. 

If someone libels someone else on your radio station or podcast, you as the broadcaster or podcaster will be the one facing legal action. 

“Nudge Nudge, Wink Wink…”

Libel is all about the meaning of words or phrases. 

It also covers the following:

INNUENDO – something attributed to the words by people who have a specialist knowledge.

INFERENCE – reading between the lines without any specialist knowledge.

IMPLICATION – something suggested without being directly or explicitly stated.

How Does Libel Affect Radio and Podcasts?

When you’re on-air or putting out a podcast, you have the power to influence – and that comes with huge responsibility. 

As a presenter, it’s vitally important that you’re aware of your legal obligations because the consequences of getting it wrong can be severe for both you and your radio station or podcast.

Although most libel cases are brought against newspapers, it doesn’t mean that radio stations, presenters and podcasts are exempt.

A slip of the tongue can result in a claim for libel.

By law all UK radio stations must keep a recorded ‘log’ of their output for 42 days. This means if a libel comment is broadcast, then the station will have a copy of it. Chances are you’ll need to provide this recording in court so an overview of context can be considered.

 

How Does Libel Affect Twitter/X, Facebook and Blogs?

Although social media may feel like a place for informal discussion, opinions and banter, you’re effectively publishing or broadcasting what you say like newspapers and traditional media.

You may feel safe writing a tweet or post on your smart phone in a coffee shop, but when you press the ‘send’ button you’re publishing what you say – and the implications can have huge consequences.

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

When you post on a blog or on Twitter/X or Facebook, you have a REAL responsibility for what you write.

You may be able to delete your comments from your device – but your words are stored somewhere on a server and, as we’ll see, you can be traced and held responsible.

You can end up being sued personally for damages and legal costs which could run into thousands of pounds.

A lack of knowledge is no defence. Saying it was just a joke is no defence. A casual, throwaway remark can result in legal action against you. 

The First Twitter Libel Cases

Courtney Love

US singer Courtney Love paid more than $430,000 in 2011 to settle the world’s first Twitter/X Libel lawsuit.

She agreed an out-of-court settlement with a fashion designer Dawn Simorangkir rather than risk going to trial over what legal papers described as a string of defamatory comments in tweets on her former Twitter/X account @courtneylover79.

Among other things, Ms Simorangkir was accused of being “a nasty, lying hosebag thief”.

Ms Love, the widow of Nirvana frontman Kurt Cobain, argued that her rantings were merely an opinion and that Ms Simorangkir couldn’t prove how they damaged her.

But the designer claimed Ms Love was influential as an entertainer and noted the power of social media to disseminate damaging comments.

Even though the case didn’t go to trial, it’s set a disturbing precedent in the US where freedom of speech generally trumps accusations of Libel.

Colin Elsbury

Meanwhile a former mayor of Caerphilly in South Wales made legal history when he became the first person in Britain to pay damages for Libel on Twitter/X.

Colin Elsbury was ordered by the High Court in Cardiff to pay £3,000 compensation after he mistakenly tweeted that political rival Eddie Talbot had to be removed by police from a polling station.

In addition to the payment of damages, Mr Elsbury was also left with a bill for legal costs of about £50,000.

He also had to publish a formal apology on his Twitter/X feed for damaging Mr Talbot’s reputation and for causing him to suffer anger, upset and ridicule.

Two More Recent Twitter Libel Cases

A.C. Grayling

A.C. Grayling is a Professor at Oxford University and a philosopher. As part of his job, he regularly visits schools to teach Humanities.

During a Twitter/X argument about Brexit, Peter North tweeted, “I’d bet good money that Grayling has a hard drive full of underage botty videos”. In other words, it was being suggested that Professor Grayling was a paedophile. 

The tweet was seen by Mr North’s 8,000 Twitter/X followers and was left up for eight days.

Professor Grayling took legal action for Libel against Mr North. He won the case and was awarded £20,000 in damages.

Dr Christian Jessen

TV presenter and medical doctor Christian Jessen tweeted false claims that Northern Ireland politician Arlene Foster, the DUP Leader, was having an extra-marital affair with her police protection officer.