Media Law: Sullivan vs. New York Times - Case Study Example

The United Kingdom has several important libel laws: defamation act is nevertheless the most important one. However does English libel legislation has Sullivan defense Whether there is any provision that resembles Sullivan method! In order to answer this question one should recall the main features of Sullivan defense, and recall this case in order to understand the meaning of the Sullivan defense. Sullivan vs. New York Times was one of the most important cases for the protection of freedom of speech and protection of public persons from the spreading of false facts or information about them. It was tried in the USA in 1964, during the era civil right movements and fight of African Americans for their rights. Sullivan a policeman from Montgomery, Alabama, sued New York Times for alleged untrue facts about him in the ad of New York Times. Alleged false information consisted of several minor inaccurate details about the protests at Alabama State College. Most of them were of minor character (for instance the names of songs were confused or some other minor facts were stated). Supreme Court found that newspaper really misrepresented some facts, yet it nevertheless held that public official who sued for the damages must prove first of all, that untrue information was intentionally presented as such or that no attempt was actually made to find out whether this information was false or untrue and thus gross neglect to the verification of the truth occurred. However, in the opinion of the Court no such intentions were evident in the actions of New York Times, and thus the case of the Sullivan collapsed. 1 1 New York Times Co vs. Sullivan, < http://caselaw.lp.findlaw.com/scripts/getcase.plcourt=us&vol=376&invol=254> The above mentioned decision was made by US High Court in 1964, yet the reverberations of this decision extended far beyond the year when it was accepted. However, is Sullivan defense present in current libel laws of the United Kingdom In order to answer this question one has to study the law that regulates libel and defamatory. Let us consider the most important features of UK libel law. What considered a defamatory statement by the law of the United Kingdom First of all, one should distinguish between slander and libel. Libel is the statement in print; whereas slander is statement in spoken form (however statement made by radio and TV broadcasters or by some performers can be regarded as libel as well). Libel can b presented in any form, it can be written on bulletin boards, websites and emails 2. As far as the broadcasting is concerned, defamatory statements are regulated by Broadcasting Act of 1990 3, and this act protects broadcasters especially if they make true, honest statements without malice. However, the broadcasting is a unique type of media, as the sound as well as visual materials is transmitted, and a broadcaster might wrongfully point out, or give the impression that they target some persons or companies. As the result of it some people may believe that they were especially targeted and singled out whereas they were not Also some allegations in defamation can be made when particular text can be on top of some pictures that might induce persons to make some conclusions about particular person or event. 2 Libel, < http://www.media-solicitors.co.uk/libel_Section.htm> 3 Broadcast < http://www.media-solicitors.co.uk/Broadcast_Section.htm> The same pertains to the radio that can mix music with particular text and thus can give particular impression about the event or another person. 4 If the statements induce person to evince hatred toward particular individual, might entail isolation of the person mentioned (the person can be avoided by some group of people as the result of the libel), damage his reputation and entail some financial difficulties or losses either for business or some groups of people, then the statements can be denoted as defamatory ones5. However, if the statements might induce people to hate or consider with contempt Royal family, Government, Parliament or the whole system of justice, or just tend to promote disturbances in the country and the society as a whole or in some particular region, then such statement can be considered as the criminal defamatory libel and both civil and criminal litigations can be brought against the persons who made the statements. Apart from above mentioned types of defamatory, there exists another kind of defamatory statement- obscenity. 6 In spite of the fact that there are many types of defamatory it is necessary to distinguish between defamatory statements and fair comments as, in latter case the court might evaluate whether the statements where made without malice. For instance, any person can express any opinion either about another person or business. 4Ibid. 5 Defamation < http://www.media-solicitors.co.uk/Defamation_Section.htm> 6 Ibid. Yet, it is not seen as a defamatory statement, even if the famous individual expresses it and this statement might damage credibility and financial status of others persons (for instance the statement of the person that claims that he does not like some particular company or business might damage the brands of some companies). According to the law of the United Kingdom, the statements presumed to be defamatory should be proved by claimant. The claimant must also show that all or majority of people that read alleged defamatory statements can draw the conclusion that these statements are referring to the claimant. Certainly, if the person publishes some claims the responsibility lies within him to prove them, and the person that publishes it must prove that his allegations are true ones. In case of defamatory, it is not necessary to show that any financial loses occurred, it would be enough to proof that they might occur. The judge might investigate this by asking experts on the matter in question whether the statement might lead to the consequences mentioned7. Defamatory law of the United Kingdom is quite complex, most of the issues of defamatory are regulated by Defamatory act of 1996. If the author of defamatory statements does not know that the statement is defamatory and takes some steps in order to augment the reaction of his publication he will have the defense. This act denotes author as an original source of the statement, not the person who published it. Section 2 of the Defamatory Act denoted the publisher as the person whose business is providing public with some information materials; it also might include the section of the population that distributes defamatory statements8. 7Defamation Act, < http://www.opsi.gov.uk/acts/acts1996/1996031.htm> 8Ibid. Person is not considered as an author when he was just involved in the printing of the material, or selling of it. He also is not considered as such if he just distributed the movie or was selling some films. Defamatory law was revised in 2000, and several important amendments were added to it. First is defense to offer the amends. This can be used by the editors if they indented to reduce the exposure9. Second if the claims on the defamatory are less than 10000 GBP, the case can be settled summarily. According to these new provisions the court has power to decide whether the defendant has the defense or not, it also can resolve the issue of refuting of the alleged defamatory statements by pointing out not only when but how statements that must refute defamatory one should be published. There are some legal controversies in the fact that Internet Service providers (ISP) might not constitute commercial publishers. As one could see in Lauren Godfrey v Demon Internet Limited, the ISP was not regarded as the publisher within the meaning defined in defamatory law. Yet, nevertheless, despite this fact the judge on the process Justice Morland, held that words "publications" as well "publish" were defined in the Common law, rather than in the Defamatory Act, and thus ISP should bear the responsibility. (Lauren Godfrey V Demon). The case was actually won by the Dr. Godfrey, who claimed that Internet Service provider had enough time to remove the publication which was in his view defamatory and yet nevertheless the provider had not done it. 9 Defamation < http://www.media-solicitors.co.uk/Defamation_Section.htm> 10 Case Analysis of Laurence Godfrey v. Demon Internet Limited, < http://www.cyber-rights.org/reports/demon.htm> However, apparently due to the fact that internet industry had been in initial stages of its development in 1996, the fact that ISP was just notified was not sufficient in views of many specialists to bring litigations against the provider. Many claimed that simple notice was not suffice in this case, as Internet service provider rarely had any powers to ascertain whether the allegations were false or true ones. Demon Internet on the other hand filled the complaint in which it stated that the decision would harm all internet community, if internet providers were required to monitor the messages and communications submitted on their web sites. Also, according to the Demon Internet, the accusations that the internet provider could be sued for libel for content published on the internet might have some negative impact on the freedom of speech in the country. 11 Several other notable organizations argued that the decisions of this case would hamper the development of online industry in the United Kingdom, and might even restrict the freedom of speech online. In Spite of the fact that internet media is relatively new type of mass media, it nevertheless liable to the same rules as more traditional types (such as newspapers, magazines and journals). They can be sued if they publish some untrue and defamatory statements. In order not to be sued the ISP should be operative enough to remove statements considered to be defamatory. As the statements of ISP may appear around the globe than litigations proceedings can be brought at any country where it is published. 11 Ibid. However, ISP has some advantages as well. As few people read online media, it is unlikely that the dimensions of the damage caused by online media would be the same as the damage caused by traditional one. Moreover, online media can remove all materials relatively quickly, much quicker than offline (where it is not possible to remove the statement, though there is a possibility to issue denial of alleged defamatory statement). This practice differs from the practice taken by the courts in the USA. US Congress decided that internet Service Providers is not liable to any tort liability. 12 In making and evaluating of intentions of the person who makes defamatory statements the Court takes into account several important factors such as his responsibility in publishing of the material, how it was published, the circumstances of the publishing and the actual character of the person who published it. In my opinion this type of consideration gives the Court the possibility to be as much impartial as possible and take into account all reasons that the author might have had in publishing and distributing of the material mentioned. Defamation act also regulates the possibility of mitigation of the dispute between the parties concerned. As far as the statement of the plaintiff is concerned, it is subjected to several restrictions from the court. Statement can be dismissed if the court finds that the statement of the plaintiff will not be able to succeed and therefore there is no reason to try it. 13 The court should take into account several important factors before start considering the process of the consideration of the claims of the plaintiff. 12 Ibid. 13 Defamation Act < http://www.opsi.gov.uk/acts/acts1996/1996031.htm > First it can start proceeding only when all persons involved in the defamatory actions are present, when the conflict of interest has been properly evaluated, the nature of the publication in media (how serious were allegations and how they were published). Certainly, the scope of the distribution of the alleged facts will be taken into account. Undoubtedly, if the newspaper is well-known, then more damage was incurred than when the statement was published in relatively unknown newspapers or web site. Proceeding can be resolved by so called summary relief, if there is a declaration on behalf of defendant that statement was defamatory, when there is already an order from the court to publish apology or any other statement that refutes defamatory information, if there is an order that does not allow publisher to publish or continuing publishing materials mentioned. As one can see the laws that regulate media in the USA differ in several serious respects from the UK libel laws, however, Sullivan defense is still present in the UK law as it acknowledges that it is necessary to establish the deliberate aim to mislead in the publishing and writing of the information materials. It is necessary to prove malicious intent on the part of the publisher. On this point the law of the United Kingdom has many similar features with the law of the United States that demands that actual malicious aim of the publisher should be proved. In both of these countries there is a provision in law that stipulates that malicious intentions should be proved before any claims on the defamatory can be successfully settled. 14 14 Defamation and Libel cases < www.cptech.org/ecom/jurisdiction/defamation2.html - 21k> In practice however, it is very difficult, though not impossible to prove the intent Actual process might be lengthy and might entail huge financial outlays for the claimant, neither it is possible to ascertain the mechanism of how malicious intent can be proved. In my opinion the fact that untruthful statements have been published must be suffice to bring compensation from the person, even if the fact that the person could not know that it was untruthful information and thought that it was true, can not justify in many circumstances the fact that the person may suffer due to the materials published. There must be as I guess more responsibility of publishing sources, as they should investigate more thoroughly information that deem to be suspicious and which can lead to some negative consequences either for some particular person or the government as the whole, as even if the lawsuit is won and the innocence of the claimant is proved the exposure and stress that claimant suffers might lead to some problems in the future. In order to understand it one can refer to one of the most recent cases -BBC Today program of Andrew Calluagn, which accused Government of the United Kingdom of fixing up the dossier in order to convince the public that Iraq possessed huge stockpiles of Chemical weapons which it could deploy within 45 minutes if it wanted to15. The scandal, that surrounded this issue led to the death of Dr David Kelly, who was denoted as the source of the resources used by the journalist. In this case the responsibility lied within BBC to prove allegations. Richard Smabrook, the head of the news section of BBC acknowledged that there were some mistakes in the statements of the BBC journalist, and that lawyers should have studied it before it was made. The journalist himself said that he did not want to state or even imply that the Government lied. 15 BBC Iraq reporter admits errors, < http://www.cnn.com/2003/WORLD/europe/09/17/uk.hutton/index.html> In this case, it is clear that journalist accused the Government of some unethical deeds, however, the responsibility to prove lied within the journalists, and it was enough for the Government to prove that the facts presented by the broadcaster were wrong, not just that he had some malicious intentions to discredit it as was the case in Sullivan case. There are many cases in the United Kingdom that tried the persons for alleged libel, there are enough instances that may allow to state that Sullivan defense is present in the laws of the United Kingdom and malicious intentions by the publisher must be proved in order to resolve the case successfully. Works cited. BBC Iraq reporter admits errors, from < http://www.cnn.com/2003/WORLD/europe/09/17/uk.hutton/index.html> Hutton rejects 'whitewash' claim, from < http://news.bbc.co.uk/1/hi/uk_politics/3709243.stm> Defamation Act, from < http://www.opsi.gov.uk/acts/acts1996/1996031.htm> New York Times Co vs. Sullivan, from < http://caselaw.lp.findlaw.com/scripts/getcase.plcourt=us&vol=376&invol=254> Defamation from < http://www.media-solicitors.co.uk/Defamation_Section.htm> Libel, from < http://www.media-solicitors.co.uk/libel_Section.htm> Broadcast from < http://www.media-solicitors.co.uk/Broadcast_Section.htm> Case Analysis of Laurence Godfrey v. Demon Internet Limited, from < http://www.cyber-rights.org/reports/demon.htm> Godfrey v Demon, from < http://en.wikipedia.org/wiki/Godfrey_v._Demon> Defamation and Libel cases from < www.cptech.org/ecom/jurisdiction/defamation2.html - 21k> Read More