How to avoid getting sued for your writing
A guide to understanding libel law
In journalism, people will often threaten you, lie to you or claim what you are writing is inaccurate. Even on Facebook and Twitter, you can be sued for libel - and US companies will often bring the case against you in the UK in order to have a better chance of winning against you.
Here’s a guide on how to avoid that, tailored for amateur journalists, but relevant whether you’re simply a humble commenter or running a full-blown news site.
In law, a person is defamed if you write something which either:
1. Is published (on a blog, newspaper, or Facebook etc.)
2. Has been distributed to a third party (someone read it other than you and the publisher).
3. Meets the definition of libellous, as described below.
Something is libellous if it does any of the following:
1. Exposes a company or individual to hatred or ridicule.
2. Causes them to be shunned (people avoid a company’s product, etc.)
3. Lowers them in the estimation in the minds of "right-thinking" members of society.
4. Disparages them in their place of work.
If something you’ve written ticks all of the first three boxes and any of the following four, then guess what! You’re eligible to be sued for libel under UK defamation law.
Here is a rough guide on how to avoid this and how to structure your writing so as to not end up in court:
The three defences to a libel, knowing which ones to use:
1. Justification (it’s true):
As depressing as it sounds, something being true is often the least used defence in journalism, as the burden of proof falls on the person making the accusation. The standards required to convince a judge, and potentially a jury, are based on the balance of probability. This differs from a criminal court, where a guilty verdict must only be given when beyond all reasonable doubt. In other words, there is less evidence required to prove someone is guilty of libel than guilty of robbery.
While this should hopefully be obvious, writing something you’re not sure is definitely true is the thing most likely to get you sued. Accuracy should be the most crucial part of whatever story you write.
But how do you know for sure that something is 100% true?
The dilemma here is that, sometimes, you don’t. There are a few rules of thumb, though, which journalists use in practice to help navigate these legal waters.
Note: While a lot of companies’ websites you write comments on might be based in the USA or elsewhere, the company or organisation can chose to sue you based on a lot of factors. If they can, they will try and sue you in the UK, even if you don’t live there, as it has notoriously strict libel laws – all the more reason it is important for you to read and understands this guide.
Note: Also, if you think that posting anonymously on a website or with no links to your address will stop you from being summoned to court, you should know that in some cases libel law gives the defamed party the right to demand a website reveal the identity of the person commenting. While this is rare, addresses of website users have been given out in the past in order to bring a case.
The Watergate Rule – double sourcing:
The Watergate Rule was a rule first originating at the New York Times during the Nixon investigation when editor Abraham Rosenthal told his reporters only two publish the story when they had two separate sources from the White House corroborating the information.
The Watergate scandal led to a lot of misinformation being sent from the White House, with journalists often being deliberately misinformed.
The important thing about the rule is that the sources must not have been in contact with each other before the journalist contacted them. They had to use their own discretion to establish this, though it generally involved being quick on the phone so as not to give time for the two sources to talk.
As a rule, if you hear something from two separate sources who have insider information, it is most likely true.
Establishing whether your sources are trustworthy is really up to you to evaluate, but common sense should really prevail here.
If you’re writing that there’s been an outbreak of bird flu in Edinburgh, you probably need more than two blokes at the pub to verify this. Hospital workers, medical officials or press officers (spokespersons) will be good sources on a story like this. The sources being in Edinburgh would also help.
Inversely, if you’re writing a story announcing that Monkey World is closing down, and your source is the CEO of Monkey World, then you probably don’t need a second source on that.
Sources can be anyone, but often include eyewitnesses to events, employees of companies (who might have been subject to a circulated memo), lawyers, officials, press officers, events managers, etc. In other words, people who are in the know.
It should go without saying that your information can’t be second hand. You have to speak with the source directly. Also, not everyone you talk to counts as ‘a source’ – speaking to two people does not mean you’ve done your due diligence – a source is someone with insider knowledge on a certain topic, though having conversations with people who are not insiders can often point you to the right direction.
Above all, make sure the person you’re talking to is the best qualified to speak on the subject you’re writing about.
It is important you maintain relationships with these people. Get their names written down (always ask how to spell it), exchange details, and talk to them as regularly as you can without annoying them.
Due Diligence – the right of reply:
The best way to avoid this is to contact the person or company you’re going to write about and put your questions directly to them.
This is not only proper journalistic conduct, as it gives the subject the right of reply, but it also gives you the opportunity to get more information and present original journalism to your readers.
It is always best to speak with someone on the phone. This gives you the chance to gauge whether someone is being genuine in a much better way than responding to an email.
This can be intimidating, but it is something you’ll have to get over if you ever want to produce original and well-researched journalism. Try to be as informed as possible before speaking with someone, don’t be afraid to ask tough questions, and don’t follow the TV approach of grilling them as harshly as possible – network interviews are a spectator sport, and trying to make the interviewee look uncomfortable is a technique rarely ever used in actual reporting.
If you’re new to this kind of thing, it helps to be polite and inquisitive, respecting people’s time and limitations.
If talking to a company, go through their press office. You can say you are a freelance journalist, which most of the time will not count against you. Be persistent, but calling up somewhere more than three times in a row can technically be classed as harassment - all the more reason to have good communication with your sources.
Record the call if you can, something which is considered note-taking under the Independent Press Standards Organisation (IPSO) code of conduct, which as a beginner, you should memorise as your go-to ethics guide in journalism.
There are various apps you can use if you don’t have an iPhone. If you do it’s a little more difficult. Your other options include buying a dictaphone and connecting it to a landline (useful if you have a company phone), learning how to touch type, or learning shorthand.
If you aren’t sure you’ve gotten a quote exactly right, don’t publish it. Misquoting someone is one of the most common reasons people get in trouble.
For face-to-face meetings, ask the person you are meeting with if it’s okay to record the conversation. Not telling them and recording anyway breaches IPSO rules and will land you in trouble, and – while there are exceptions to this rule – it’s not a good way to get a source to trust you.
If you’ve ticked all the boxes above, and you’ve done as much research as you can. You can feel safe that if someone does threaten to sue, you can rely on justification (i.e. it’s true) as your defence in court.
Case studies:
- BBC defends defamation claim using justification defence
- 'World's worst' tennis player loses libel action
- Chris Jefferies wins 'substantial' libel damages from newspapers
- Irving v. Penguin: Historians on Trial and the Determination of Truth Under English Libel Law
- The Daily Mail makes history
2. Qualified and absolute privilege (someone super reliable said it):
Absolute Privilege allows statements to be made without fear of legal action being taken, even if those statements are defamatory, untrue, or even a combination of the two. This level of privilege is only given to a select few, namely either the parliament or the courts.
Examples of circumstances in which absolute privilege is recognised include:
* Houses of Parliament – MPs are able to speak freely during parliamentary proceedings and cannot be sued for slander (verbal defamation) or even breaking the Official Secrets Act 1989.
* Hansard – the official report produced to report proceedings in the Houses of Parliament.
* Judicial proceedings – judges, lawyers, juries and witnesses are among those free to make defamatory statements – even with malice – during judicial proceedings.
As long as you get the quotes and dates correct, and publish quickly, you don’t have to worry about getting sued when writing this down. It is the most reliable libel defence in journalism.
Qualified Privilege allows journalists to publish defamatory statements as long as they are published “without malice”, meaning that the publication must be motivated by a desire to inform, without the “intention to do someone wrong”.
For this reason, professional journalists don’t tend to write about people they know personally or about companies or organisations they have worked for in the past.
Some things which qualify for qualified privilege include:
*Statements made in governmental reports of official proceedings.
*Statements made by lower government officials such members of town or local boards.
*Citizen testimony during legislative proceedings.
*Statements made in self-defence or to warn others about a harm or danger.
*Certain types of statements made by a former employer to a potential employer regarding the employee.
*Published books or film reviews that constitute fair criticism.
The biggest difference between absolute and qualified privilege is that, unlike absolute privilege, qualified privilege comes with conditions. In order for you to have legal protection from being sued, your writing needs to be:
*Fast – published at the next available opportunity (within the same day, usually, but up to about a week)
*Accurate – published information is a correct account of proceedings. The need for accuracy extends to spellings (names, place names, etc.) and the identification of individuals.
*Fair – the definition of fair varies depending on the context.
Fair means the following: You can’t leave relevant stuff out. If you’re writing up a court case about a murder, leaving out the fact that the accused murdered a police officer in self-defence would not count as fair, hence it would lose you qualified privilege as a defence in court.
In order to make sure you can use qualified privilege, you need to give the subject of your remark the right of reply, which means contacting them and asking them about the accusation. This was also discussed in the due diligence section – which you must include in your article in some form.
Case studies:
- Why benefits could come from principle of qualified privilege
3. Honest comment (it’s my opinion)
Honest comment is in some ways the best defence to writing, as it allows you to say whatever you want as long as it’s clearly your own opinion.
The problem with this one is you need to write something which is an actual opinion and not leave it ambiguous for this defence to work.
“In my opinion, Bill Gates is a paedophile,” will not qualify for an honest comment defence, for example.
There is only one requirement for this defence – it has to be an honest comment on something which is in the ‘public interest’.
This is a much-debated subject within journalism, but an article will be deemed to be in the public interest if it is:
- Detecting and exposing crime
- Detecting and exposing serious impropriety
- Protecting public health and safety
- Preventing the public from being misled by an action or statement of an individual or organisation
Exposing an MP as lying would fall under public interest, whereas commenting on a celebrity’s children would not. “Impropriety” is quite a broad term, though, and will often cover most things worth writing about.
Case studies:
1. Goodfellas Pizza restaurant: Out of the stories posted here, this really is the most entertaining of the lot, and a fascinating case of how far the honest comment defence stretches.
Pitfalls and how to avoid them:
1. Repeating allegations
Do not think it is okay to write something because it has already been reported somewhere else, written online, or spoken by someone online or off. This is not a defence. You’re the one publishing it, and either the publisher, the writer, or the distributor can be sued for this – but not, in fact, the person who makes the statements.
This is one of the most common mistakes people make when considering libel law. As an unofficial rule, if two or more broadsheet papers (e.g. The New York Times, The Times) have reported something, you can feel safe to report it yourself. (If it turns out not to be true, they’ll be sued and take the information down long before it gets back to you.)
2. Making it vague (but too specific)
This is one of the worst offenders on the list. If you don’t want to name an individual, some writers tend to settle for a description of the person which gives the reader a vague impression of the person, but leaves the actual individual anonymous. At least, in their mind.
This is more dangerous than some may realise, because if the group you are describing is too small then everyone in that group can sue you, hitting you with up to twenty-five libel cases instead of just one.
Let’s say you have two eyewitnesses who say they saw a police officer shoot a young boy on Avenue Street, in central London, and they both came out of the Buckingham Palace Police Station. They were both white, with ginger hair, and had Scottish accents.
You’ve checked your sources and know you have a story. But how to identify the officers without knowing who they were?
After sending questions and a summary of what you will write to the police station in question (and duly publishing their reply in your copy), you will want to write something along the lines of Police Officers Shoot Nine-Year-Old Boy on Avenue Street.
But how to describe the officers in the story?
If you write that two unidentified police officers shot the boy, you would likely not get sued, as there are too many police officers in London for individuals to be identified.
If you say that it was two police officers from Buckingham Palace Police Station, though, then every single police officer in the station can sue you. A very similar case to this happened and the police won the defamation dispute.
Can you report that the officers were ginger? Or Scottish? Again, no, as there are probably too few ginger, Scottish police officers in London, so the group might be small enough for all ginger, Scottish, London-based officers to bring a case against you.
Could you report that they were white? In this case, yes, as there are more than likely too many white officers in London for them to claim they have been identified individually.
The number set by case law is 25, but case law changes all the time, and so it is better to ere on the side of caution. If the group you’re identifying has less than forty or so people in it, it is better to make the descriptions vaguer. (Publications do ride roughshod over this, but many of these papers are in and out of court. You, hopefully, will not be.)
Note: It is also possible to make an accusation by accident, without meaning to, as it is based on what the reader understands and not what the publisher intended. This happened to the Sunday Times in the Michael Foot case.
3. Implying the accusation
Don’t try and get around defamation law by using an analogy or metaphor to hint at an accusation. This will get you sued as surely as if you’d just come out and said it. If you’re a Private Eye reader and are thinking to yourself that this is what the publication does constantly, you’d be forgetting that the Private Eye – esteemed paper that it is – is actually relying on the justification defence before making its accusations through analogy, getting enough evidence to back up its claim before doing so.
Note: It is also possible to defame someone you did not know existed. The classic English case was that of Artemus Jones. A journalist wrote an article about a factual event but invented a character he called "Artemus Jones", to add human interest. Unfortunately, there was someone with this name in real life, a London lawyer, who then sued the paper and won.
4. He said, she said
Don’t repeat rumours. Do real reporting and fact check everything before publishing your copy. The best way to achieve this is to be organised, doing copious amounts of research, and giving yourself enough time to prepare your story beforehand so you aren’t in a rush to publish.
Note: Defamation is not limited to linguistic forms; visual forms such as photographs, paintings, illustrations, status and bodily gestures can also be regarded as defamatory.
Slander:
The difference between libel and slander is that libel relates to the written word whereas slander relates to the spoken.
If you are making a video, then you will have to follow slightly different law than if you wrote an article or a blog post, but the same issues still apply.
The main difference is this: In a slander case, the claimant must prove that the effect of the defamation has actually been damaging to them.
There is no such requirement in a case of libel.
However, there are several instances of slander where the damage is assumed and it need not be proven – this is called slander 'actionable per se'. These include:
- An accusation of committing an imprisonable crime
- Of having a contagious disease
- Of being incapable in their office, profession or business.
Using Twitter, Facebook or other social mediums:
Can you be sued under libel law for what you write on Facebook or Twitter?
Unfortunately, yes you can.
Under UK (and US) libel law, Twitter and Facebook are not classes as publishers per se, simply aggregators of self-publishers (that means you). Because of this legal category, you are on the hook for anything you write on these websites and anyone who is libelled via your comments can sue you, as happens regularly on Twitter.
Note: The UK High Court has ruled that defamation on internet bulletin boards is akin to slander rather than libel, so watch out for that if you are an active commenter online.
Case studies: Katie Hopkins sued after Twitter comments.
Getting sued (or threatened)
In the real world, if you work in a newsroom and write something the offended party deems to be libellous, the person will more often than not threaten to sue before they actually sue.
This isn’t ideal, obviously, but it is a lot better than a direct summons to court. Best practice if you have libelled someone is to own up to it, apologise to the person involved, and publish an apology. If the article is online, correct it with an italicised note at the bottom explaining how the article previously published incorrect information.
This is embarrassing, for you and for your publication, which should give you all the more reason to learn libel law properly and avoid this situation in the first place.
If you’d done your homework on libel law, though, and the person is still threatening to sue, don’t back down, and ask for legal advice on the matter (which this isn’t, just to be clear).
If you’re not sure, it is best to take the article down from whichever website it appears on. You can always put it back up at a later date once you’re 100% certain you’re in the clear.
Having said that, in journalism, people will often threaten you, lie to you or claim what you are writing is inaccurate. If you have done sufficient research, talked to enough people, triple-checked your facts, and scrutinised your sources, you will have nothing to fear.
Good luck.
Resources and related links:
2. https://www.theguardian.com/law/2010/dec/01/libel-reform-medialaw
3. https://ethicaljournalismnetwork.org/the-public-interest
4. https://publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36206.htm
6. https://www.theguardian.com/books/2000/apr/11/irving.uk
7. http://alaninbelfast.blogspot.com/2008/03/goodfellas-two-reviews-neither-too-kind.html
8. https://www.irishtimes.com/news/belfast-restaurant-libel-award-is-overturned-on-appeal-1.901953
10. https://www.independent.co.uk/topic/defamation
11. http://natashacspencer.blogspot.com/2010/10/media-law_18.html
12. https://www.independent.co.uk/news/michael-foot-wins-six-figure-libel-award-1590183.html
13. https://www.legalzoom.com/articles/differences-between-defamation-slander-and-libel
14. https://www.justiceinitiative.org/voices/why-snowden-won-t-get-public-interest-defense-he-deserves
15. https://inforrm.org/2019/04/03/a-closer-look-at-the-public-interest-defence-jessica-lovell/