Are You Offended or is it Freedom of Speech?
“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
―John Milton, Areopagitica
We are always encouraged to voice our thoughts and to use the liberty of freedom of speech. However, can we say everything that we want to or the laws give us a boundary that if crossed can have consequences? How much can we communicate without restrictions? No matter how welcome we are in this world to express our feelings, the law is above all that confines us to defame another person.
After all, it is the act of making and spreading false statements about a person that can harm his/her reputation. Defamation is a complicated law as proving that the person’s standing is damaged can get difficult because reputation is intangible. There are two kinds of defamation known to the law; Slander and Libel. Defamation got distributed into two categories before the advent of modern media. A defamatory statement when spread in writing and published is called libel. If the defamatory statement gets verbally conveyed or spoken, it is called slander. What if the defamatory statement is made spontaneously on live media? Can a person sue another for defamation if the reputation is damaged? This article will analyze the traditional concepts on the topic in comparison to spontaneous defamation and its legal capacity.
In almost all countries, defamation law has always been obscure and intricate. On the one hand, a person is given the freedom of speech and to about their experience in a truthful manner. On the other hand, a person should refrain from making any false statements that could damage someone’s character or reputation. That’s where defamation law comes into play, where it attempts to balance the personal right to protect one’s status simultaneously with the public right to freedom of speech. Defamation law gives the right to a person to defend his/her reputation and sue those who say or publish malicious and false comments.
Liable for Libel?
Libel is the publication of defamatory accusations in a permanent form and slander is the publication of abusive words in a temporary or momentary form (usually oral)[i]. There are three elements which a claimant must prove to sue the party for defamation. The matter of complaint must: be defamatory; referred to the claimant; and have published the same to a third party. The term libel is usually thought to occur in writing or print. Indeed, a defamatory statement contained in a book, magazine, newspaper, letter or poster can quite easily get categorized as a libel. However, it is wrong to assume that libel is limited in this way. Defamation occurring in signs, artworks, cartoons, tweets, photographs and even the display of a wax figure in Madame Tussauds could constitute a libel. This aspect is, however, if proven as in one of the primary cases of Libel. The case was Monson v Tussauds Ltd (1894)[ii], A significant tourist attraction of wax statues was subject to defamation after a waxwork John Monson holding a gun was displayed close to the ‘Chamber of Horrors’ in the museum. Monson was subjected to a murder trial but was set free with the judgment of ‘not proven’. The courts ruled that a wax statue was capable of being libel by suggesting Monson be guilty of murder. There are also many other forms of publication by electronic or digital means such as and Music, Films, TV, etc.
What can be qualified as Slander?
Slander is the statements, often made in malice or anger, which are untrue. Few narratives that can qualify as slander include:-
- Claiming a person's sexual orientation,
- when it is false or wrong, in an attempt to harm his or her reputation,
- telling co-workers a made-up, or
- an unproven story about a person stealing,
- claiming that a specific person has sexually transmitted disease, etc.
Any statement made in public that can harm a person’s reputation gets considered as slander. This result is because slander involves spoken verbal abuse, proving slander can be a challenge. The false and malicious statements should get communicated intentionally, or negligently, to harm the other person’s reputation and directed to the person defamed [iii]. A famous Hollywood defamation lawsuit, Steve Wynn Vs. Joe Francis[iv]. Where Steve WynnaccusedJoe Francis of slander for saying that Wynn wanted to kill him and bury him in the desert. After Francis publicly accused Wynn of deceptive practices at his casinos, Wynn sued him for defamation. The judge ruled in favor of Wynn in February and ordered Francis to pay USD 7.5 million.
Following are the few critical defenses to defamation: truth, honest comment, absolute privilege, and consent[v]. The truth defense is an action for libel for the defendant to prove that the words complained of are true in substance and defamation will be void as defamation is only by false statements. Honest comment is a defense to a claim for defamation. It is ‘one of the fundamental rights of free speech and writing.’ The underlying principle for the argument is that a person should be allowed to express his views freely on a matter of public interest. Another defense to defamation is the Absolute privilege, it is limited in scope but were established by a defendant to a claim in defamation, confers upon that defendant immunity from suit or immunity from liability, even in respect of a malicious and untrue publication which causes real damage. The Absolute privilege protects a person who makes defamatory comments based on his position, or on his relationship with the defamed party. Lastly, If the defendant can prove that the plaintiff consented to the publication of the defamatory statement to others, he has no basis for a defamation lawsuit.
Above discussed are the defamation which is known to the law and has several case laws to support it. In an article name ‘Defamation Live’; The Confusing Legal Landscape of Republication in Live Broadcasting and a Call for a ‘Breaking News Doctrine’[vi], the authors discuss the live and spontaneous broadcast of defamation and describe it as the murky area of law. The author narrated a scenario where ‘imagine that you are a broadcast journalist for national television in a current situation of a building just burnt because of the bombing. Post reaching the scene with your cameraman, you started with your first question ‘Who do you think committed this horrible act?’ from a bystander Mr. X, who anticipated the will name a local man Mr. Y as the bomber because you overheard Mr. X, whom you have never met before but have no reason to trust, telling others in the crowd that he knows Mr. Y did it. Mr. X names Mr. Y, a person of no particular notoriety or power, live on the air. It turns out that Mr. Y had nothing to do with the bombing. Mr. Y sues you, your station, and Mr. X for defamation. This article analyzes if courts lawmakers create a ‘breaking news doctrine’ to protect broadcast journalists from liability in such spontaneous or live defamation cases. Defamation law holds everyone liable who republishes a defamatory statement. So, if a statement goes out live on the broadcaster’s channel, then the broadcaster is considered a re-publisher and held liable.
Some defenses can be used to prevent the republication liability. Fair report privilege where the law gives unique opportunity to publish fair and accurate reports of certain defined judicial and legislative proceedings. However, this privilege won’t be justified with the scenario mentioned above as it is not reporting legal or legislative actions. Another defense is the wire service defense; initially was developed for a newspaper which served as channels for national wire service reports. It acknowledges the significant of publication before the news becomes old. It was ruled in the case of Layne c Tribune, Co. This defense would not apply to this scenario because, Doctrine only applies when the source of information is a reputable news agency such as the associated press or a broadcast television network, not a man on the street bystander like Mr. X.The broadcast journalist in the hypothetical scenario is involved in the broadcast; he chooses who to interview and the questions to ask. The requirement of ‘absolute non-involvement with the underlying transmission is not satisfied. Another defense is the Neutral reportage privilege which is used to protect journalists when they make false statements about public figures. It was developed in the 1970s to preserve unbiased reports of newsworthy defamatory statements. However, this would not apply to this situation because it gets only employed to cases involving public figures. The defamed individual in this situation is a person of no particular notoriety or power. The privilege would not apply because the source of the defamatory statement must be a responsible person or organization. Also, Section 230 of the Federal Communications Decency Act provides immunity from defamation liability for those who convey content supplied by third parties; the privilege is limited in application to an interactive computer service. Thus, it would not apply to the broadcast journalist described in this situation.
You are Live On-Air
There are several case laws regarding the live, on-air defamation. Adams v Frontier Broadcasting Co and New York Time v Sullivan are among the leading case laws. In the United States, various states have different approaches to the state law known as ‘due care’ statutes[vii]. South Dakota law provides that the complaining party must prove that the broadcaster failed to exercise due care to prevent the publication of such statement in the broadcast. Ohio removes liability for third-party statements and broadcasters ‘if the owner licensee, or operator proves that the owner, licensee or operator exercised reasonable care to prevent the publication or utterance of the statement in such broadcast time. Texas’s statute allows libel defendants to put into evidence all facts and circumstances under which the libelous publication made to help determine the extent and source of actual damages and to mitigate exemplary damages. Most states need negligence for all parties to recover damages against public defendants, meaning that the due care statutes in many cases merely codify what the law would be in any event, regardless of the way by which the defamation got transferred. A defendant who is confronted by an emergency is not expected to exercise the same amount of care as is a defendant not facing exigent circumstances. Live Defamation scenarios are at significant risk for broadcasters, especially when the targets of offhand defamatory remarks are private individuals.
Defamation in UAE
Unlike other countries like the US and the UK where defamation is approached in a civil lawsuit, In the UAE defamation is a criminal offense. With the growing population of expatriates, the number of defamation cases has increased significantly.
There are two major offenses under defamation outlined in Articles 372 and 373 of UAE Federal Law No. 3 of 1987 (as amended) ("the Penal Code"). Article 372 handles publicity which exposes the victim to public hatred or contempt and Article 373 set out the situation where the offender makes a false accusation that dishonors or discredits the victim in the public eye. For example, if the defamation includes publication of defamatory remarks in any newspaper or any other form of public media, it will be considered as the situation created intentionally and the offender will get punished by imprisonment of two years and a fine (Article 372, UAE Penal Code). Whereas, if slander is made and spread over the telephonic conversation or in front of the victim which is witnessed by a third party. The punishment for the offender will be detention for a period not exceeding six months, or a fine, not more than AED 5,000 (UAE Dirham five thousand), shall apply (Article 374, UAE Penal Code). If any defamatory statement gets published, it must get filed within three months from the date of its publication. Once the criminal complaint gets filed and if police determine that there is an indication of defamation, it gets referred to the Public Prosecutor. It is a crime in the UAE, to insult any religion using any means which includes the social media and is punishable by up to seven years imprisonment.
The UAE courts are not obliged to provide injunctive relief which will prevent future publications of the defamatory". If the offender is proved guilty, individuals can get punished for up to two (2) years in prison or a fine of up to AED 20,000 (UAE Dirham twenty thousand). The UAE relies on criminal courts to legalize written and spoken speech. In comparison, US and UK legal systems rely upon civil lawsuits to control defamatory statement.
Technology and Defamation
With the expansion of social media and the substantial source of the Internet, the opportunity for publishing defamatory statements has grown massively. With mediums such as Facebook and Twitter, people can instantly post comments which will reach the public at large. For this reason, the defamations laws will apply to online defamatory statements, where it is visible to everyone. Defamation in social media and on the internet are easy to track as there is a proof of it getting published.
In conclusion, defamation is a murky subject as in today’s world where freedom of speech is appreciated and welcomed on the other hand people do have extreme opinions about other people that they post on different channels. It is a delicate area of law to tackle in today’s world as private persons and figures are becoming public. The live streaming is not only available to news channels now but to every individual who has access to social media. It will be more defamation cases than the legal system could handle if every malicious statement made were an area of defamation.
[i]Bainton, Hicks Beach, A. (2016). Defamation: Libel. Westlaw.
[ii]Lawteacher.net. (2017). Monson v Tussauds Ltd. [online] Available at: https://www.lawteacher.net/cases/monson-v-tussauds.php
[iii]Bainton, Hicks Beach, A. (2016). Defamation: Slander. Westlaw.
[iv]Gardner, E. (2012). Steve Wynn Vs. Joe Francis: Anatomy of a $40 Million Smackdown. [online] The Hollywood Reporter. Available at: https://www.hollywoodreporter.com/thr-esq/joe-francis-steve-wynn-girls-gone-wild-40-million-lawsuit-369714.
[v]Bainton, Hicks Beach, Crossley, A. (2017). Defamation Defences. Westlaw.
[vi]D. Bunker, M. and Calvert, C. (2017). "Defamation Live": The Confusing Legal Landscape of Republication in Live Broadcasting and a Call for a
"Breaking News Doctrine." Hein, (39 Colum. J.L. & Arts 497 2015-2016
[vii] Nytimes.com. (2014). The text of the Supreme Court's Opinion in Libel Case Against The New York Times. [online] Available at: http://www.nytimes.com/1964/03/10/text-of-the-supreme-courts-opinion-in-libel-case-against-the-new-york-times.html. Feel free to get in touch with our team of criminal lawyers in Dubai for more information.
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