Emma Morgan Duke By Emma Morgan Duke, 23rd Feb 2011 | Follow this author | RSS Feed
Posted in Wikinut>Writing>Essays

This page discusses what defamation is and what this means for any Journalist.


A defamatory statement involves some imputation against character or reputation, including business or financial reputation. Broadly speaking defamatory statements are those published or spoken which affect the reputation of a person, company or organisation.

There are four different ways to defame somebody; lowering them in the estimation of the public, causing them to be shunned or avoided, disparaging them in their business or profession, exposing them to hatred, ridicule or contempt. Fashions in defamation change. Something that was defamatory in the past may not be defamatory now. For example, Accusations of Sabbath breaking are less likely to be held defamatory as they were in the last century.

Journalists do have some defences against defamation; Justification, fair comment, privilege and RIXA. Being able to justify that the words or combination of words and pictures that were used are true in substance and fact is a defence against defamation.
If a story is supported by the facts and it is honestly held, and it is a matter of public interest and it is not malicious – then it is a fair comment. “The press is perfectly entitled to comment on matters of public interest but the comment must both be fair and be based on fact, not supposition.” (Scots law for Journalists p.221)

Certain conditions must be present before the defence of fair comment will succeed. First, the matter complained of must be comment. The defence does not protect defamatory statements of fact. Secondly, the comment must be such as an honest man could have made. “Comment, however, does not cease to be fair merely because it represents a stupid, partisan or eccentric point of view fools and cranks can have their say.” (Scots law for journalists p.222). Thirdly, a defence of fair comment will not fail only because the truth of every allegation of fact is not proved, if the expression of opinion is fair comment in view of such facts as are proved. Fourthly, the comment must be on a matter of public interest. This allows the person making the comment plenty of scope. It does not cover observations on matters regarded by the law as lying outside the legitimate sphere of journalism such as the private lives of private citizens.

Fair comment is a particularly relevant defence when dealing with stories on public figures. There is a belief amongst many journalists that people in public life must accept they will be criticised in the media. To a degree this is true but the law of defamation applies to public figures as well as to the man in the street.

There are two types of privilege- absolute and qualified. If a statement has absolute, no action can be based on it, however false, defamatory or malicious it may be. A defamation action must be raised within three years or else it will be time barred. If a statement is qualified privilege an action can be based on it but the pursuer must prove that it was made with malice.

There can sometimes be unintentional defamation when a person can recover damages for defamation even if the statement complained of was not intended to refer to him or was not intended to be defamatory. In 1989, a spoof advertisement was sent to and then appeared in The Herald newspaper intimating that the company C.R Smith had gone into liquidation. This was quite untrue and the paper quickly corrected the inaccuracy. But had any business losses been suffered by C.R. Smith they may well have been able to sue the newspaper for recovery. It follows that, in so far as possible, a newspaper should institute a system of checking that the person inserting any advertisement is bona fide.

Section 4 of the Defamation Act of 1952 was intended to alleviate injustice in the case of innocent publication. Its provisions are, however, limited and it is doubtful if it had achieved its aim. To establish that words were published innocently the publisher must prove that he did not intend them to refer to the person complaining and did not know of circumstances by virtue of which they might be understood to refer to him or that the words were not defamatory on their face, and that he did not know the circumstances by virtue of which they might be understood to be defamatory of the person complaining. The publisher must also prove in all cases that he exercised reasonable care in relation to the publication and , where he is not the author, that the words were written by the author without malice. If the publisher can satisfy these conditions, he can escape liability by making an “offer of amends”, under the act. This means an offer to publish a correction, retraction, and apology and where documents or records containing the words complained of have been distributed, to take reasonable steps to notify the recipients that the words are alleged to be defamatory of the person concerned.


Defamation, Journalism

Meet the author

author avatar Emma Morgan Duke
Studied Journalism at university- currently working full time whilst pursuing my writing career. Always working on a novel that rarely gets completed.

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author avatar Retired
23rd Feb 2011 (#)

informative and interesting, and I think it goes beyond jourmalism as well.

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author avatar Denise O
24th Feb 2011 (#)

Well written and explained.
Thank you for sharing.:)

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author avatar B Buchanan
27th Jul 2011 (#)

The content is plagarised from Scots Law for Journalists by Bonnington et al

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