In the wake of the Belfast News 'Goodfellas' libel case I thought it would be relevan

Ernie Whalley · 13th February 2007, 12:39 PM

The common view of the courts has been that a fair critique of a restaurant, movie, TV show, or theatre play is not libellous, even though the comments or criticism are disparaging and may result in a loss of business or reputation. Reviews are reasonably understood to be one person's opinion.
The recent judgment in the Goodfellas franchisee v Belfast News/Caroline Workman case would, if followed by the courts here, make it extremely difficult for restaurant reviewers to engage in any meaningful criticism.
My own hope is the judgment is overturned on appeal. If anything it also reinforces my lack of faith in the jury system as used in libel cases.

What are defamation and libel?
Defamation is any published material that damages the reputation of an individual or an organisation. This covers material on the internet as well as newspaper reports and radio and television broadcasts - even drama and fiction can be defamatory if they damage someone’s reputation. You can only publish defamatory material if it comes within one of the recognised legal defences. If it doesn’t, the publication of such material will amount to libel – defamation in written or recorded form - and you may have to pay substantial damages.

The purpose of libel law
Libel law protects individuals or organisations from unwarranted, mistaken or untruthful attacks on their reputation. A person is libelled if a publication:
Exposes them to hatred, ridicule or contempt
Causes them to be shunned or avoided
Discredits them in their trade, business or profession
Generally lowers them in the eyes of right thinking members of society

For a reviewer the most important thing is getting your facts right.
The most important point is to make absolutely sure that what you are printing or writing is true. Do not make claims or accusations that you cannot prove. Even if you think you can do this, be cautious. Proving things in court can be very difficult.

The test of 'what the words actually mean' is 'what a reasonable reader is likely to take as their natural and ordinary meaning, in their full context' - what you intended as the author or publisher is irrelevant.

The burden of proof lies with the defendant
Almost uniquely in law, in libel cases the burden of proof lies with the author / publisher and not the complainant. In other words, you have to prove that what you write is true. The person you’ve targeted does not have to prove that you’re wrong.

Three tips for journalists
Don’t rely on the literal meaning of the words.
You cannot solely rely on proving that your statements were literally true if, when they’re taken as a whole, they have an extended, more damaging meaning. Also, for example, if somebody was guilty of fraud once, calling him a fraudster in a way which might suggest he’s still doing the same may well give rise to a libel which can’t be defended. Be especially wary when referring to events in the past.

Don’t exaggerate in your claims or language
For example, a company may run a factory which produces certain chemicals. For you to suggest that babies will be born deformed as a result may get you into a lawsuit.

Innuendo can catch you out
Your comments may not appear particularly defamatory taken at face value, but greater knowledge of a person or situation may make it problematic because of the innuendo. To say Mr Jones doesn’t recycle his waste paper may sound harmless enough. But to people who know that Mr Jones is a Green Party activist, the innuendo of the statement is that he is hypocritical in his politics.

Common mistakes and assumptions
Repeating rumours
It is inadvisable to repeat a defamatory rumour unless you are in a position to prove it’s true. Even if you are contradicting the rumour you should not repeat it. And adding ‘allegedly’ is not enough to get you out of libel difficulties.

Quoting others
If you publish defamatory remarks about people or organisations made by other people you will be just as liable to be sued as they are. So if you can’t prove the truth of their statements, don’t repeat them.

Drawing unprovable conclusions
It is a common mistake to draw unverifiable conclusions from the basic facts. For example, if Mr Brown is seen going into a hotel room with a call-girl, this does not necessarily mean he enjoyed a ‘night of passion’, and will certainly not prove that he did.

Irresponsible adjectives
Be very careful about the adjectives you use. A misplaced word can result in costly action. If you are campaigning about a factory that releases chemicals into the atmosphere, referring to the factory as ‘poisoning the atmosphere’ is inadvisable!

Representing all sides
Presenting all sides of an argument is often good practice, but is not a defence against publishing defamatory remarks.

The case for the defence

The law lays down a number of ways in which defamatory publications may be defended. If the defences succeed, the publisher wins. But if they don’t succeed, the publisher loses: the complainant will have been libelled and will therefore be entitled to be paid damages and their legal costs. The defences are listed below.

Truth
The most usual defence against libel is to prove that the information published is true. But this can be a dangerous route because an unsuccessful plea could increase the damages against you because you will have increased the harm to the complainant.

Remember above all that (unlike the normal 'innocent until proved guilty' vibe) the onus is one the publisher of the statement to prove truth or justification not on the person libelled to prove that the statement was untrue or unjustified. Truth

Fair comment
Fair comment covers content, mainly opinion, that cannot by its very nature be true or false. To be properly defensible, these comments must satisfy four counts, i.e. be: based on fact; made in good faith; published without malice; and on a matter of public interest.
Remember, 'mere vulgar abuse' is not libel. To call the chairman of The Bigbux Coffee Co a 'total twat' is probably not libellous. To call him a 'crooked twat' is - unless, of course, you can prove it!

Privilege
Privilege is the defence where the law recognises that individuals should be free to speak their minds (and others to report what they say) without fear of being sued even if they get their facts wrong. It allows people to speak freely in court proceedings and debates in Parliament, and allows for such proceedings to be reported, so long as the reports are both fair and accurate.

Case study:
In 1990 McDonalds served a libel writ on several members of a campaigning organisation over the production and distribution of the ‘What’s Wrong with McDonalds?’ leaflet. The legal battle between Helen Steel and David Morris, a gardener and a postman, and the McDonalds corporation became one of the most famous cases in British legal history, not least because it became the longest running British trial.
To win the case, the pair would have had to prove from primary sources the truth of their allegations about McDonalds. After hearing all the evidence, the judge (who did find that some of the allegations were true) ruled that the pair had libelled McDonalds because the evidence they called was not enough to prove the majority of their statements. They were ordered to pay damages of £60,000. The trial cost millions of pounds in legal fees.

This article has been compiled from a number of sources including GuardianOnline, the BBC website, several legal textbooks and from my course notes and previous experience as a lawyer.

13th February 2007, 12:39 PM	#1
Ernie Whalley Restaurant at the end of the universe Join Date: Feb 2003 Location: On the dark side of a glass Posts: 2,160	In the wake of the Belfast News 'Goodfellas' libel case The common view of the courts has been that a fair critique of a restaurant, movie, TV show, or theatre play is not libellous, even though the comments or criticism are disparaging and may result in a loss of business or reputation. Reviews are reasonably understood to be one person's opinion. The recent judgment in the Goodfellas franchisee v Belfast News/Caroline Workman case would, if followed by the courts here, make it extremely difficult for restaurant reviewers to engage in any meaningful criticism. My own hope is the judgment is overturned on appeal. If anything it also reinforces my lack of faith in the jury system as used in libel cases. What are defamation and libel? Defamation is any published material that damages the reputation of an individual or an organisation. This covers material on the internet as well as newspaper reports and radio and television broadcasts - even drama and fiction can be defamatory if they damage someone’s reputation. You can only publish defamatory material if it comes within one of the recognised legal defences. If it doesn’t, the publication of such material will amount to libel – defamation in written or recorded form - and you may have to pay substantial damages. The purpose of libel law Libel law protects individuals or organisations from unwarranted, mistaken or untruthful attacks on their reputation. A person is libelled if a publication: Exposes them to hatred, ridicule or contempt Causes them to be shunned or avoided Discredits them in their trade, business or profession Generally lowers them in the eyes of right thinking members of society For a reviewer the most important thing is getting your facts right. The most important point is to make absolutely sure that what you are printing or writing is true. Do not make claims or accusations that you cannot prove. Even if you think you can do this, be cautious. Proving things in court can be very difficult. The test of 'what the words actually mean' is 'what a reasonable reader is likely to take as their natural and ordinary meaning, in their full context' - what you intended as the author or publisher is irrelevant. The burden of proof lies with the defendant Almost uniquely in law, in libel cases the burden of proof lies with the author / publisher and not the complainant. In other words, you have to prove that what you write is true. The person you’ve targeted does not have to prove that you’re wrong. Three tips for journalists Don’t rely on the literal meaning of the words. You cannot solely rely on proving that your statements were literally true if, when they’re taken as a whole, they have an extended, more damaging meaning. Also, for example, if somebody was guilty of fraud once, calling him a fraudster in a way which might suggest he’s still doing the same may well give rise to a libel which can’t be defended. Be especially wary when referring to events in the past. Don’t exaggerate in your claims or language For example, a company may run a factory which produces certain chemicals. For you to suggest that babies will be born deformed as a result may get you into a lawsuit. Innuendo can catch you out Your comments may not appear particularly defamatory taken at face value, but greater knowledge of a person or situation may make it problematic because of the innuendo. To say Mr Jones doesn’t recycle his waste paper may sound harmless enough. But to people who know that Mr Jones is a Green Party activist, the innuendo of the statement is that he is hypocritical in his politics. Common mistakes and assumptions Repeating rumours It is inadvisable to repeat a defamatory rumour unless you are in a position to prove it’s true. Even if you are contradicting the rumour you should not repeat it. And adding ‘allegedly’ is not enough to get you out of libel difficulties. Quoting others If you publish defamatory remarks about people or organisations made by other people you will be just as liable to be sued as they are. So if you can’t prove the truth of their statements, don’t repeat them. Drawing unprovable conclusions It is a common mistake to draw unverifiable conclusions from the basic facts. For example, if Mr Brown is seen going into a hotel room with a call-girl, this does not necessarily mean he enjoyed a ‘night of passion’, and will certainly not prove that he did. Irresponsible adjectives Be very careful about the adjectives you use. A misplaced word can result in costly action. If you are campaigning about a factory that releases chemicals into the atmosphere, referring to the factory as ‘poisoning the atmosphere’ is inadvisable! Representing all sides Presenting all sides of an argument is often good practice, but is not a defence against publishing defamatory remarks. The case for the defence The law lays down a number of ways in which defamatory publications may be defended. If the defences succeed, the publisher wins. But if they don’t succeed, the publisher loses: the complainant will have been libelled and will therefore be entitled to be paid damages and their legal costs. The defences are listed below. Truth The most usual defence against libel is to prove that the information published is true. But this can be a dangerous route because an unsuccessful plea could increase the damages against you because you will have increased the harm to the complainant. Remember above all that (unlike the normal 'innocent until proved guilty' vibe) the onus is one the publisher of the statement to prove truth or justification not on the person libelled to prove that the statement was untrue or unjustified. Truth Fair comment Fair comment covers content, mainly opinion, that cannot by its very nature be true or false. To be properly defensible, these comments must satisfy four counts, i.e. be: based on fact; made in good faith; published without malice; and on a matter of public interest. Remember, 'mere vulgar abuse' is not libel. To call the chairman of The Bigbux Coffee Co a 'total twat' is probably not libellous. To call him a 'crooked twat' is - unless, of course, you can prove it! Privilege Privilege is the defence where the law recognises that individuals should be free to speak their minds (and others to report what they say) without fear of being sued even if they get their facts wrong. It allows people to speak freely in court proceedings and debates in Parliament, and allows for such proceedings to be reported, so long as the reports are both fair and accurate. Case study: In 1990 McDonalds served a libel writ on several members of a campaigning organisation over the production and distribution of the ‘What’s Wrong with McDonalds?’ leaflet. The legal battle between Helen Steel and David Morris, a gardener and a postman, and the McDonalds corporation became one of the most famous cases in British legal history, not least because it became the longest running British trial. To win the case, the pair would have had to prove from primary sources the truth of their allegations about McDonalds. After hearing all the evidence, the judge (who did find that some of the allegations were true) ruled that the pair had libelled McDonalds because the evidence they called was not enough to prove the majority of their statements. They were ordered to pay damages of £60,000. The trial cost millions of pounds in legal fees. This article has been compiled from a number of sources including GuardianOnline, the BBC website, several legal textbooks and from my course notes and previous experience as a lawyer.

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