It's official, the quote of the week "Dont rely on a prostitute as a main witness" - Chris Horrie. Though this sounds amusing... and indeed is amusing, the reasoning behind it is pretty sound, though potentially unfair to prostitutes. In anycase I'll explain later.
Defamation is a civil dispute, it is an argument or disagreement between two people or parties, and the way that it's seen is that damaging reputation is somewhat like damaging property. This is because though there will be no physical damage, as there would be with property, if you damage someones reputation then it may have an affect on their earning ability, which will cost them money just like damaging property would. Earning ability is key here, if you say something which insults someone personally but doesnt affect their ability to earn money then it's fine. This is known as comment. Essentially, rudeness is encouraged, hence why Jeremy Clarkson is so well off. It is almost impossible to libel a dead person, because they are dead and therefore the worst has already happened to them. The only possible exception to this that I can think of is if the family of the deceased sue for besmirching their relatives memory or something similar, but then this may not come under the libel umbrella so to speak.
In order for something to be considered defamatory then it must be 3 things. First, it must identify the person who is to be de-famed. This must be a direct identification, not a generalised account. For example, were you to say something about an entire football team, a player on the team couldnt sue claiming that they were personally de-famed, but if you were to pick that player out specifically then they could.
Secondly, and quite obviously, the defamatory statement must be published. If it's said in private then at the very worse it's a case of innocuous slander. As soon as it's actually put down as written word, or even said in a radio broadcast, it becomes libel. The definition of publication is "Publication - set down in a permanent form and shown to a third party." the permanant form is important because it shows why radio is considered libel, since it's all recorded a permanent form is created. Apparently facebook counts as publication, so be carefull what you say in your statuses... though admittedly a full blown libel case would be an heroic (if expensive) frape.
Thirdly and finally, the statement must be defamatory, attacking a persons's ability to earn money and not just their personality. To be considered defamatory a statement must expose them to any of the following four things.
1) Expose them to hatred, ridicule or contempt
2) Causes them to be shunned or avoided
3) Discredits them in their trade, buisness or profession
4) Generally lowers them in the eyes of right-thinking members of society.
In order to be guilty of libel, a statement must only tend to prove that one of these is true. Tend is the key word here, there is no beyond reasonable doubt like there is in criminal courts.
Ways to avoid libel:
This is handy to know for obvious reasons, and I'm honestly not trying to make it sound like a "How to guide for getting out of libel lawsuits" but here it is. Spelling is everything, if you spell a name wrong then the person whose name you've actually written is free to sue for libel. Having said that there are bound to be people who have the same name, spelt in the same way, as the person whom the article is about. Since this is the case, there are ways to avoid them suing you aswell. This is called positive identification, so it helps to have a photo of the person that you're actually writing about. A description also helps, such as age, occupation, where they live and so on, but apparently if you do this in any old article you sound like an idiot... food for thought. If you've gone to these lengths and someone still claims libel action, you can rightly claim that it's accidental libel, since you've stated the name, age, adress (not specifically obviously) of the intended subject.
The Big Three Defence:
1) Justification - It's true and we can prove it!! This is a complete defence, if the statement that you're publishing is true then you've got nothing to worry about, as long as you can prove that it's true. The standard in a libel case is the balance of probability rather than beyond reasonable doubt, therefore if you can prove it's true you will not lose.
2) Fair Comment (based on fact) - Because of freedom of speech journalists have a lot of scope to say hurtful or controversial things about people, so long as they make it absolutely clear that this is comment and not fact. It must be your honest opinion and it must be said without malice. If it can be proved that you are saying something that you know isnt true then it completely COMPLETELY destroys any defence that you may have had against it being libelous.
3) Absolute Privilege and qualified privilege - privilege in general is the right to disobey the law, soldiers have privilege because they can shoot and kill people and not be punished by the law (unless it's classified as a war crime, or they just shoot someone in the street). Lawyers and Judges have privilege because they can defame people and not face any consequences. Journalists have qualified privilege, this means that they have privilege but it is bound by rules. As a trial continues a lawyer will say massively defamatory things to make the defendant seem guilty, a court reporting journalist may print these defamatory things as long as they follow the three rules binding what they write. These rules restricting journalists privilege are that what they report must be fast, accurate and fair. Fast insofar as it must be in the first possible issue of whatever medium they're reporting in. Accurate means that there must be no spelling mistakes or misprints. Finally it must be made fair by reporting the not guilty plea (if made) and must include a summary of their defense.
Examples of Libel cases:
Russell Slade, the ex manager of Yeovil Town won a libel case against the club after it published defamatory statements about him after he had left the club in early 2009. He was payed substantial damages and had his legal costs covered by the club.
Warren Furman, who may be better known as Ace from the TV series Gladiators, was involved in a libel case when, on an internet forum, there were allegations that he raped Katie Price. The case was settled in the form of a published apology, significant payout and covered legal costs.
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