English Law presumes that everyone has a good reputation and any deliberate attempt to harm the reputation can be put in the hands of law. Reputation is of great value to any individuals. Any deliberate attempt to tarnish one’s reputation must be investigated by law. The English law relies on defamation act that protects the individuals against any malicious attempt by a third party that is likely to taint their reputation. From a PR perspective, defamation can have serious impact on any organisation’s reputation. It can create public hatred, contempt, ridicule or inflict injury to the reputation of an organisation or an individual (The First Amendment Handbook, 2011). Organisations and celebrities take years to build reputation and hence, it is of utmost importance to keep their reputation free from any damage. It is important for practitioners in media & communication field to take measures to make sure that the communication that is put in the public domain is not construed as defamatory. Defamation is one of the most common legal problems that is faced by practitioners in this field and is perhaps, the most frustrating problems for both the parties. This is due to the fact that the terms are not clearly defined (Heath, 2004).
Expressing opinions is a part of human rights. The European Convention clearly states the Principles on Freedom of Expression. According to UK Human Rights Blog, the articles 10 (1) & (2) state that ‘every individual has the right of freedom of expression including freedom to hold opinions and to impart or receive information and ideas without interference by public authority’ while at the same time, these freedoms carry duty and responsibilities and may be subject to certain formalities, conditions and restrictions or penalties if they violate
Interests of national security, territorial integrity, public safety
Prevention of disorder and crime
Protection of health or morals
Protection or reputation or rights of others
Preventing the disclosure of information received in confidence; or
Maintaining the authority and impartiality of the judiciary
If these conditions for freedom of speech are breached, there is a potential that the statement put in the public domain might cause harm to the reputation of an individual or organisation. The Defamation Act 1996 was amended in 2013 which came into force on 1st January 2014. Under the new law, the claimant has to provide ‘evidence’ of the damage, which can be financial in nature in case the claimant is an organisation that trades for profit. Pre 2014, the law focused on the words used in the publication to analyse whether they are capable of causing harm to one’s reputation. With the amendment of 2013, both organisations and individuals can sue only if there is a proof of ‘serious damage’ to their reputation – which makes it harder for the claimant to succeed in absence of evidence. Another change that the defamation law 2013 has brought is the abolition of jury. In case of celebrity lawsuits, the jury might get influenced by the personality of the public figure. It was also realised that the verdict of the jury often leaves room for doubt along with added expenses and reduced efficiency (Habib, 2014).
The defences to a defamation claim can be, truth, honest opinion or public interest.
Truth – If a statement that is claimed to be defamatory by an organisation or individual is defended by providing ‘substantial’ evidence, it is likely to have an upper hand. This is explained by Chase levels where level one states that the truth has to be factually correct without any ambiguity. At level two, it should convey the impression that there are reasonable grounds to believe in the facts. And finally level three conveys the impression that suspicion exists that something has occurred.
Honest opinion – A statement falls under this category if the statement is an honest opinion by an honest person without any intent of malice.
Public interest defence – If the published statement, can be proved to be in the interest of public, it can prove to be a strong defence.
To prove the ‘seriousness’ of the damage to reputation, the organisations have to prove the financial loss that they have incurred (or are likely to incur) as a result of a particular statement. Organisations that are trading for profit often find it difficult to prove the loss in goodwill or the dip in share prices as a result of a defamatory statement (Ecceles, 2007). It only becomes more difficult for individuals (celebrities or public figures) to prove the same. Unlike an organisation, they do not have quantitative measures such as profits or share prices. In case the losses can not be quantified, the case can be put under the ‘Hypothetical reader or viewer test' where it analysed whether an ordinary reader could interpret the meaning that is defamatory to the claimant. Ultimately, it is upto the court and how they interpret the ‘serious damage’ to an individual’s reputation. The elements that make up a defamation law suit should include publication, identification, defamation and fault. The defamatory statement has to be ‘published’ and the claimant has to be ‘identifiable’ in the context. The statement published has to be capable of decreasing the value of the claimant (defamation) and it should have caused a serious harm to the reputation of the claimant (Fault) (The First Amendment Handbook, 2011).
The second part of this report focuses on an example that will highlight the consequences of defamation law suit from a PR perspective. Lance Armstrong sued Sunday Times for an article that was published in June 2004 by Alan English, the deputy sports editor at the time for the newspaper. The article was based on a book by David Walsh, the newspaper’s chief sports writer at the time. Armstrong sued the newspaper on the grounds that despite his denials involving his abuse of performance enhancing drugs, the article meant otherwise and that essentially claimed that he was a fraud and a liar in the eyes of the public. Both Walsh and English were defendants in the case and argued that any reasonable reader could not or would not have understood that the publication has accused Armstrong’s indulgence with performance enhancing drugs. In December 2004, Justice Eady said that the facts exhibited in the article might suggest that Armstrong indeed has been involved with these performance-enhancing drugs. It was declared that the article was defamatory and any reasonable reader would have understood the article to mean that Armstrong had taken drugs to enhance performance (Chase level 3). As a result, Sunday times settled the law suit by paying £300,000 to Armstrong on behalf of the damage to his reputation. As discussed above, the Defamation Act 1996 prevailed then and there was no need for evidence of damage. The court gave the decision based on the words that were used in the article. This lawsuit eventually turned against Armstrong when in January 2013, he confessed on the Oprah Show that he had indeed taken performance enhancing drugs of all kinds and that it would have been impossible to win seven titles of Tour de France in a row without them. As a result, Sunday Times launched a High Court bid in order to claim their losses plus £720,000 claiming that Armstrong’s claim in 2006 was baseless and fraudulent. They settled for a £1 million from Armstrong. This particular move proved to be a major PR fiasco for Lance Armstrong and was a huge setback to his career. According to a report by The Guardian, 37% of the sports fans believed that he should not get credit for his achievements. A USADA report reported that his favourable rating dropped from 75 points (from +76 in 2006 to +1 in 2012) (Mackinley, 2013). Several sponsors also terminated business with Armstrong on the basis of this interview.
This case not only highlights the importance of facts in a defamation law suit but also the importance of truth between a PR representative, the client and the public. Transparency is extremely important while dealing with public figures who are respected and looked upon. Prior to this incident, Lance Armstrong held a respectable position in the minds of sports fans. As a struggling cancer survivor, and a writer, he was seen as a motivational figure. However, this case proved to be a turning point in his career, from where it was difficult to return.
From the point of view of the publication, too, the vitality of ‘evidence’ needs to be understood. This case makes us understand the importance of ‘truth’ in any form of public communication. According to a research done by Porter / Novelli public relations firm, 95% of the people are offended about a company (or a public figure) lying with regard to a crisis (Henry, 2008). Armstrong did not just vehemently oppose the allegations made by Sunday Times, he went on to sue the publication on the basis of a lie. As a PR practitioner, it is always a good practice to be aware of the media laws as they may be of great importance while formulating information for the public. Public Relations is concerned with reputation management and it is the duty of a PR practitioner to suggest their clients not to indulge in any activity that may lead to a harm to their reputation. With the digital media coming into picture, the importance of truth holds a higher place than before. Every communication put into the digital media gets held in the servers and can be retrieved at any given point in time. Any attempt to change the truth can be proved otherwise. It is the responsibility of the publication and organisation (or individual) both to be factually equipped before presenting the information to the world.