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Defamation Claims: Putting The Fear In Broadcasters?

Defamation Claims: Putting The Fear In Broadcasters?

Just two years after Transworld abandons the publication in the United Kingdom of Lawrence Wright’s novel ‘Going Clear: Scientology, Hollywood and the Prison of Belief’, Sky Atlantic is now withholding the broadcast of a new television documentary based on the book, amidst concerns over potential defamation claims in Northern Ireland.

When the Defamation Act 2013 came into force in England and Wales on 1 January 2014, it was widely recognised as raising the bar for defamation claims and providing clearer protection for those publicly expressing opinions.  However, this Act does not apply to Northern Ireland or Scotland, which remain governed by 20-year-old legislation supplemented by case law.
The inconsistent legislative framework across the United Kingdom has now proven to be problematic to television companies who are unable to vary broadcasts between regions.  While a broadcaster may feel safe from defamation claims in England and Wales, the same may not be true in Scotland or Northern Ireland.  This, it appears, may be leading broadcasters to err on the side of caution in order to avoid potential legal action.

There is no doubt that television broadcasters are vulnerable to defamation claims.  Channel 4 was the subject of legal action in 2013 in respect of its ‘Dispatches’ programme, which, according to Ryanair,  contained defamatory statements relating to the safety of the airline.  Similarly, Irish broadcaster RTÉ suspended its programme ‘Prime Time Investigates’ in 2011 after the government announced an independent inquiry into the station for defaming a priest.  RTÉ is believed to have paid the priest more than €1m in damages in respect of the defamation.

Generally speaking the law on what constitutes defamation is the same across the UK.  However, with the passing of section 1 of the 2013 Act, claimants in England and Wales must now demonstrate that a statement has caused (or is likely to cause) serious harm.  In the case of a business this must be evidenced by proving serious financial loss.  The “serious harm test” represents a substantial hurdle for a claimant to overcome but no such hurdle faces those pursuing defamation actions in Scotland or Northern Ireland.  It therefore follows that claimants may be more likely to succeed in Scotland/Northern Ireland, leading broadcasters to fear defamation actions in the two jurisdictions.

There is an important balancing exercise to be undertaken between a person’s (whether individual or company) right to protect their reputation as against a broadcaster’s right to freedom of expression.  As matters currently stand the separate defamation laws across the United Kingdom further complicate this exercise.  Scotland has not yet published proposals to overhaul its defamation laws and become more aligned with England and Wales, but it may become inevitable.  Until then it will be interesting to watch whether other broadcasters take the same approach as Sky and remain cautious, or whether, controversial broadcasts will lead to defamation actions in Scotland or Northern Ireland.

Kirsteen MacDonald