Friday, February 22, 2008

This is what we are up against when it comes to slagging off the PubCos: (the FACT and I could probably prove it but it would be difficult, that BDM's have lied to me often, is irrelevant. If I say they lied I can be sued if I can't prove it. If I say 'the pub indistry is a joke' am I bringing it into disrepute? Could I be sued? Even though I am in the Pub industry and I KNOW IT'S A JOKE?


For a statement to be defamatory, the four recognised tests are;

  1. It holds the person/company up to hatred, ridicule or contempt.
  2. It disparages their trade or business
  3. It lowers their reputation in the minds of right thinking members of society
  4. It leads to them being shunned or avoided.

It has to be just one of the above.

The defences to libel are:

1. Justification – ie it is true. The burden of proof is solely on the journalist/author of comments – can you imagine how time consuming and the cost of that would be to a trade paper like the MA, should someone start suing us for comments made on the forum? The other side does not have to prove the allegations are false.
Also 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.
You have to be able to deal with every libelous possibility, such as inference and innuendo. If your statement infers something greater, it is not enough to prove that the statement is just literally true. Merely asserting something will not be sufficient to prove that it’s true - you will need witnesses and documents to back up assertions (whether they’re yours or someone you’re quoting).

2. Fair comment – This is mainly for opinion pieces, that cannot, by its very nature be true or false ie a product or film review. To be properly defensible, these comments must be:
* Based on fact
* Made in good faith
* Published without malice.
* On a matter of public interest

As an example, in 2001, the Daily Mail lost a libel action brought by the former Tottenham Hotspur chairman Alan Sugar over the remark that he was a "miser" when he ran the club because he didn’t give his manager enough money to buy top class players.
The jury were not sufficiently persuaded that there was any factual basis for making this comment. They didn’t deem it fair comment. He was awarded £100,000. That kind of payout would kill off the MA.

3. Privilege – This covers you to report anything that was said in court and Parliamentary debates without fear of being sued if the facts are wrong as long it is fair and accurate.

There is no defence for repeating a rumour without being in a position to be able to prove it yourself.

Consider this case – which is the most famous – as well (and probably very similar to a lessee taking on a pubco?);

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 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 was estimated to have cost millions of pounds in legal fees.

WEB forums

Web forums are a little unique in the fact that are not that many test cases to fall back on at the moment but they are not currently considered any different from printed material ie all of the above is still valid to the forum.

The most famous case here is Gina Ford v Mumsnet.
Briefly speaking – Mumsnet is a site for new mothers and has a huge forum (15,000 comments a day). Gina Ford is author of books espousing a strict, no-nonsense approach to childcare. Posters allegedly posted defamatory comments about Ford and her methods/.
Mumsnet had to pay a five-figure sum to Ford for comments made by posters on the site.
They also tried to sue the internet provider and shut the website down.

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