I was discussing a case we had in the UK last year where a man called Max Mosley, head of Formula 1 Racing, hired 5 prostitutes. The prostitutes dressed up in prison uniforms and shouted at him in German while whipping him. The whole scene was filmed without his knowledge and, along with testimony from some of the girls involved, was given to a paper called the News of the World who published the story under the headline ‘F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS’ (Mosley’s father had also been the head of the British Union of Fascists in the 1930’s).
Mosley sued the paper for invasion of privacy and won, on the grounds that there was no evidence the orgy had actually involved ‘Nazi role-playing’, and that’s the only element of the story that, if true, would justify invasion of privacy.
This led a friend and me to an argument. Say I have a friend called Dave who works in an important public office - British ambassador to a foreign country, for instance. One day he says to me in private an outrageous statement like, ‘I think Hitler was a great man because of what he did during the Holocaust’. I go to a newspaper like the News of the World and they publish a carefully-worded story (‘British ambassador accused of supporting the Holocaust’, for instance) based on my claims; he sues for slander, or defamation, or whatever the appropriate crime is. By all measures I’m a respectable citizen; say I’m a doctor, no criminal convictions, and so on.
Who could he sue? Me (the sole source) or the newspaper, or both?
What would be the best defense I, or the newspaper, could adopt?
Who would win the case?
As I understand it, the most obvious defense would be that the claims are true - ‘what we published was true, therefore it’s not slander’, but that this defense puts a huge burden on the defendant to prove the claims, and in this case we wouldn’t have enough proof to win. So a better defense would be the public interest defence - sometimes known as the Reynold’s defence - where I argue that because Dave holds an important public office, it’s in the public interest for newspapers to be able to publish accusations about him endorsing the Holocaust if they have some evidence for it, even if they can’t comprehensively prove it.
This seems like a question that involves some real technical knowledge to be able to answer so any input from lawyers would be much appreciated!
I can’t speak to British law in this case but in the US it would be libel, not slander, if filed against the newspaper publishing.
Even so, it would be a VERY difficult case for the plaintiff to win if the paper does its job correctly. For my end I would
Make sure there was an actual voice record of the source telling the story.
Document attempts to confirm the story elsewhere. i.e. contacting the hotel, other people present, anything.
Contact the official and ask them for comment on your allegations.
Write the story carefully and without malice. “MP says ‘Hitler OK’ says close source” would be my headline. I realize that the British tabloids can be pretty lurid but I always thought that was counterproductive to the story…though it can sell papers, I suppose.
In terms of who to sue the best bet would be to sue the paper AND you, the source, jointly. But without malice aforethought it would likely be pretty simple for the paper to get let off the hook if the above is done.
IANAL, but I’ll point out a couple of problems with your OP. First is that you don’t say where you are or in reference to what jurisdiction you want this question to be answered. Libel laws are subject to significant variation from country to country. IIRC it is much easier to bring and prevail in a libel case in the U.K. than in the U.S. I believe that at the time I heard that Mosley probably wouldn’t have prevailed in the U.S.
Another problem is that although you are right that in some jurisdictions the truth is an absolute defense against libel, your theoretical case is a he-said/she-said situation in which no objective truth is likely to be provable in court.
**Jonathan Chance **has explained how a reasonable publisher would act to prevent such a case being brought in the first place.
FYI, in the U.S. at least, slander is saying something defamatory in public, libel is publishing something defamatory. (Weasel words: This is a necessarily brief and therefore not 100% accurate characterization of the differences, and as I said, IANAL.)
Your points 2, 3 and 4 are good ones - that’s the sort of thing I meant by a ‘carefully-worded story’ - but I was thinking that there would not be a voice recording of Dave making the claims (or any type of recording). I’d imagine if you had a tape of him saying it you could take the truth defense, ‘it’s not libel because it’s true’, and comfortably prove your claim with evidence.
But what if there’s no audio or video recordings, or hard evidence at all, other than the claims of a respectable source?
I’m interested in any jurisdiction; if a US lawyer knows about the US then great, if a British lawyer knows about the UK then I’d love to hear that too. You’re right, I should have made this clearer.
I addressed this exact problem in the OP; I’ve heard that the classic defense against libel or slander is truth, that ‘since what I said is true it can’t be libelous’. But the problem with the truth defense is that courts puts a huge burden of proof upon the defendant, and that’s why in a he-said she-said case like this the truth defense would fail and the defendant would be found guilty of libel.
The truth defense does not mean that no true statement is libelous. It means that no statement that can be shown in court to be objectively true is libelous. E.g., if the ambassador in your example told you privately he was a member of a neo-Nazi party, and you reported this, you might be able to defend yourself by showing party records or other evidence of his membership.
But a truth that can’t be shown to be true in court beyond eyewitness testimony that is countered by an equally persuasive eyewitness (he said/she said) won’t automatically prevail. And in actual practice, a reputable newspaper wouldn’t allow itself to be put in that position for that very reason.
For a public figure to prove libel against a publication in the U.S., he needs to first prove that his reputation was harmed by the story - probably not a big challenge in this example. He then needs to show, on the news outlet’s part, either “reckless disregard,” meaning an insufficient effort was made to find out if the story was true before publication, or “actual malice,” meaning the story was known to be false and ran anyway as an effort to hurt the subject’s reputation.
So as far as that goes, the paper’s best defense is to show that what it printed is true (truth being the absolute defense), or if it can’t prove that, to show it did not harm the subject’s reputation and was responsible in its reporting. If they ran the story based only on your reporting of something you overheard at a party, they probably don’t have much of a case. If you have a recording or a few other guests overheard the remarks and back up your story, that’s very different.
I’m not sure what the legal strategy would be for you as an individual.
In the U.S., public figures also have a higher burden of showing that they were harmed by the publication of the story. It’s assumed that they have thicker skins and are more accustomed to being in the public eye. A previously-unknown librarian who is the subject of a lurid Page 1 story is more likely to win a defamation lawsuit than, say, a former top general: Westmoreland v. CBS - Wikipedia
Who is or isn’t a public figure is determined on a case-by-case basis.
When I say ‘an audio recording’ I mean an actual recording of YOU making the statement to a reporter about the incident. This can provide cover for the paper and make it impossible for you, the source, to later recant and say ‘I never said that!’
