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This page intends to explain what the law of defamation means, and how you can avoid posting defamatory material to any BBC community site or messageboard.
BBC Defamation Policy
It is against the House Rules to post defamatory material to any BBC community site or messageboard. If you post content that we believe might be defamatory, we will remove it. Potentially defamatory material, may, at the Editor's discretion, be posted if there is credible evidence supporting your claims, or if the content is deemed to be fair comment.
What is Defamation?
Defamation is the legal term that covers both slander and libel; slander is defamation by word of mouth, and libel is defamation in written form. It is, therefore, the type of defamation we are concerned with in content posted onto the BBC. A statement about an individual or organisation is deemed to be defamatory if it harms their reputation by:
Who Can Sue for Defamation?
Individuals can sue for defamation, and companies can sue for injury to their trading reputation. Although most of the expensive legal claims made against media companies have been made by companies and not individuals, a lot of claims are made against individuals too. It is therefore, important to check your facts whether talking about companies or individuals.
In addition, groups of identifiable individuals can sue for defamation, for example clubs, interest groups etc. See the 'Identification' section below for more details.
Who Can't Sue for Defamation?
Governments and local authorities can't sue for defamation, but individuals within those organisations can if the defamatory statements disparage individuals in their office, profession or trade. So it is possible to defame the UK Prime Minister or the President of the USA as individuals, but not their governments. However, dead people can not be defamed and their estate cannot sue for defamation.
Who Can be Sued?
Both the publisher and the author of defamatory material can be sued for making defamatory statements. This means that both you as the author of the content, and the BBC as the publisher, can be sued for defamation.
The following sets out some of the defamation issues you should be aware of when writing content for any BBC community site or messageboard.
Meaning - Regardless of whether you intend to or not, if a statement is understood by a reasonable person to be defamatory, you will be liable for defamation. A statement that is apparently innocent may carry an inference that is defamatory, so be extra careful that what you write can not be interpreted to be defamatory when you didn't mean it to be.
You cannot imply or infer something defamatory about someone, or make a comment from which a defamatory statement could be inferred. Even if a statement seems innocent on the surface, it's possible that it could be interpreted as defamatory to those with special knowledge, so be careful, as innuendo may be defamatory.
Identification - For a defamation case to succeed, the defamatory statement must be seen to refer to the claimant, even if that was not the writer's intention. Leaving out someone's name is no guarantee of avoiding defamation, if there are other clues that could lead to their identification.
Not naming anyone can be equally problematic. For example, if you said that 'one of the authors of today's five top articles has stolen work from someone else', then each of the authors of 'today's articles' could argue that the statement could reasonably be taken to refer to him or her, and they could all sue for libel. However, if you said 'all BBC community members were crooks', then the category is so wide that no single member could say he or she was defamed.
Repetition - Just because you are quoting someone else's words does not mean it is safe. If you say 'X said that Y did Z', then if saying that Y did Z is defamatory, you have just repeated a defamatory statement. Even if you are quoting published work, it is possible that the publisher was sued when they published it, or it is possible that it slipped by unnoticed. Whatever the case, it is not safe to repeat it. As far as the law is concerned, each publication is a fresh publication of the defamation and can be sued upon.
Defences to Defamation
The three main defences to any claim for defamation are Justification, Fair Comment and Privilege. When publishing articles and postings, our Editors and hosts will have regard to these defences. It is not a defence to defamation to argue that your story should be published in the public interest. Let's look at each in a bit more detail.
Justification - This is the most commonly used defence against libel. Put simply, this means that however much the subject of your story dislikes what you are saying, you have evidence that will stand up in a court of law that can prove what you are saying to be true.
Simply putting 'allegedly' at the start of your statement doesn't stop a statement being defamatory at all; you need to have proof that what you are saying is true. As far as user generated content articles go, if you say anything contentious about an individual or company, put in a footnote to a reliable source where this fact can be checked. Put in a footnote for each statement you make that might make us, as publishers, uneasy. It is not enough just to cite lots of sources at the end of your article; you must be specific with which source proves which statement, so they can be checked.
Fair Comment - Opinion made honestly on a matter of public interest can also be used as a defence against defamation. The term 'fair comment' gives the impression that the comments have to be 'fair', but in fact, all that is required is that the opinion is honestly held. However, for the defence to succeed, it is essential that the statement was made without malice.
In law, malice means more than spite or ill will - it means any dishonest or improper motive. If you made a comment based on facts you knew to be untrue, or commented upon facts recklessly without caring whether they were true or not, or made a comment about someone simply to discredit them, then this would constitute malice, and you would not be able to claim 'fair comment' as your defence.
Privilege - There are times when complete freedom of speech, without any risk of defamation action, is in the public interest. For example, the Bill of Rights allows MPs to say what they like within the debating chambers of the House of Commons, so they can debate without having to worry about being sued.
Reporters covering court proceedings, the proceedings of industrial tribunals and certain other kinds of public enquiries, are also protected by privilege, so long as the case is open to the public and the report is fair, accurate and made without malice.
On the subject of court proceedings, you are not allowed to publish anything might influence the court proceedings. This is called contempt. It is for this reason that no publications can allow comments about ongoing court cases that might have any bearing on the outcome, this includes members' articles and postings on to BBC community sites and messageboards.
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