Meeting on Privacy and Libel at the Society of Authors.
Mark Le Fanu introduced the meeting stressing some positive features for writers:
(i) people in general are reluctant to sue because it is expensive;
(ii) libel damages payments are dropping;
(iii) publishers are generally insured and tend not to pass the cost of claims onto authors;
(iv) the Society of Authors are in the process of arranging a means for authors to find affordable cover and there will be details in the next edition of the Author.
Nicola started by outlining the difference between libel and slander. I thought I knew this but I didn't - not precisely.
Slander is spoken and the claimant has to show how they have been damaged. Libel is written, or performed on the stage and they have to show injury to reputation. There is a subtle difference, apparently. Together they are called defamation. The actual amount awarded has gone down recently but is usually in the range of £200 000. However, the costs can be even more enormous.
The actual wording is important: 'the lowering of the claimant's reputation in the judgment of right thinking people'. Points to note about this are:
(i) The right minded people are the jury;
(ii) And the claimant's reputation must be lowered; so a mass murderer may find it difficult to make a case! Similarly, it is probably not libellous these days to claim that someone in most fields of life does not believe in God because it would not damage their reputation; however it would damage the reputation of the Archbishop of Canterbury, and in a case like this would be libellous.
Writers often think that if they do not name a person in a piece they will 'get away with it'. This is a common fallacy. In fact, if the claimant is identifiable, then the writer can be sued. Sometimes 'not naming' can make things worse - and can lead to all the people who could be the person not mentioned in a piece of writing suing the writer. For instance if the writer claimed that one of the sales people in a firm were being dishonest then all the sales people in that firm could sue the writer.
Similarly, if the person is not clearly identified and can be mistaken for someone else then that 'someone else' can sue if it could have been them from what is written. This is pertinent to novelists. There are various methods to help try to preclude this sort of mistaken identity in a novel. It helps, when inventing a character to specify age, occupation and address and then check to see that person does not exist at that address through parish records or company files. I must admit I was pretty surprised to hear about this. Another alternative is to use a very common name such as John Smith, or to use a very strange or invented name.
Lying about someone is not necessarily libellous if the lie does not damage the reputation. For instance claiming that someone could not attend because they were ill (when they were not) would not be libellous because everyone is ill sometimes and saying they are ill does not 'lower their reputation'.
The precise meaning of the words as written is important. The test is to determine the sense any group of ordinary readers (even if they are in the minority) would make of a piece. If it is decided that just a few readers could take a piece to mean something defamatory then the claimant has a right to sue. These ordinary readers could have a sense of irony, and could also have specialist knowledge. For instance if a footballer were to be reported leaving a house which was the address of a brothel then the reporter could be sued, even if only few people had that 'specialist knowledge'.
The piece as a whole is looked at - not just the headline. So a headline can seem to be defamatory on its own, but if the entire piece is not then that writer is quite safe.
Repeating rumours is also defamatory.
However, fair comment is not. So an opinion piece i.e. a review or piece of criticism is not libellous as long it is made clear that it just opinion. But it must be based on fact and not go 'too far' or exaggerate in a demeaning way.
Death of either claimant or writer exonerates the writer.
In the UK, the claimant can only claim within a year of publication. However, if a blog post or on the internet this is from last download so the writer can be potentially sued until the blog post is taken down.
If a writer can claim that a piece is written on the basis that the public 'need to know' then this can be all right too. In this way investigative journalism is justified, and sources do not have to be named to protect them.
Sometimes a 'damaged reputation' can be mended by an amendment or public, written apology.
The laws in this area have tightened considerably recently.
For instance in 2002 it was deemed okay in the courts for a newspaper to publish a story about a footballer visiting a prostitute; but in 2008 Max Mosely's affairs were considered to be breach of privacy (although the Times still has an article on line here).
Naomi Campbell provided another test case. When she was photographed coming out of a clinic she won her case of breach of privacy because health is considered to be a private matter (as is family life, and contents of a home).
In general it has to be shown that the article is of sufficient interest to the public (versus the claimant's human right to privacy).
It has to be fact-based, non-intrusive and sympathetic.
There has to be no breach of contract e.g. nanny who has previously been employed by a family is unlikely then to be allowed to write a book about her experience.
In contrast to libel, the right to privacy extends to after the claimant's death...probably. This is still being tested.
In general the advice was 'Don't say anything about anyone that you wouldn't want them to say about you.'
(corrected later thanks to CFR!)
The UK encourages 'libel tourism' because the 'burden of proof' is with the writer rather than the claimant. Because the costs involved are large it is usually only the very wealthy that bring libel or privacy actions. They can afford expensive barristers who are experienced and convincing to the judge who decides the case (in contrast to the writer who usually cannot). Thus the law tends to favour the claimant.
Judge Edie has often presided over these cases - as he was over Simon Singh's case. But today it has been announced that Simon has decided to appeal against this judgment - which could bode well for freedom of expression in this country. There is a petition to show your support on the Sense About Science site.
Added Later: There is lots more interesting discussion on this topic on Nature Network. Maxine's post is a good starting point.