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What is the main difficulty in a defamation case?

What is the main difficulty in a defamation case?

Postby Hairyloon » Thu Oct 26, 2017 9:55 am

I was moved by the contrast between a newspaper article and its subsequent retraction to wonder why the subject of the article doesn't take action for defamation, and I imagine the point applies to many similar scenarios.
I can see a general difficulty in defamation claims in proving that what was said was not true, but if the reporter has admitted that it was not true, then that seems pretty much covered.
Obviously such newspapers have a near bottomless budget to defend such claims, and I expect they would defend rather than simply paying out, but if the claim is indefensible then it shouldn't matter what defence budget they have.

Why then do the victims so rarely take action?
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Re: What is the main difficulty in a defamation case?

Postby atticus » Thu Oct 26, 2017 10:05 am

Cases are different. Each case has its difficulties. What is the "main" difficulty in one may not be the "main" difficulty in another.

Reasons for not charging off to court to pursue a libel case will include:

- cost
- costs risk
- not wanting to give something that has blown over further publicity (the 'Streisand effect')
- the discussions on swarb forums

Others may add to the list.
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Re: What is the main difficulty in a defamation case?

Postby Hairyloon » Thu Oct 26, 2017 11:17 am

OK, the costs and the Streisand effect are accepted and understood, and I'm going to assume the reference to discussions here was meant in jest, but what is the costs risk?
Surely costs are only awarded against you when you lose and how can you lose when the defamation so clearly occurred?
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Re: What is the main difficulty in a defamation case?

Postby atticus » Thu Oct 26, 2017 11:19 am

No jest.

As to costs risk, there are many kinds of reasons a libel claimant can be ordered to pay costs other than by "losing". Part 36 Offer, apology published to name just two.
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Re: What is the main difficulty in a defamation case?

Postby theycantdothat » Thu Oct 26, 2017 4:02 pm

Hairyloon wrote:I can see a general difficulty in defamation claims in proving that what was said was not true, but if the reporter has admitted that it was not true, then that seems pretty much covered.


You are forgetting that what is said/written must also be defamatory. Assuming Hairyloon does not play the violin and I write that Hairyloon is a great violin virtuoso, that would not be defamatory.

Whilst it may be difficult to prove that what was said was not true, the evidence is weighed up as it is in any other case. However, whether something is defamatory is subjective. For a start public opinion changes. No sensible person these days would sue if a newspaper said they were gay. And it is not just that newspapers have large budgets, but also that they are experts at ferreting around in people's past. If a newspaper says you were drunk and disorderly and you respond you have never been drunk, they will find a dozen people willing to swear you were drunk at a party, when in fact you were only a little merry.

If your main objective is to put the record straight an apology or withdrawal should suffice. Then, if someone says to you that the Daily Clarion said you were drunk you can answer that they withdrew the allegation. There may be lingering mumblings about there being no smoke without fire, but you will probably get that even if you win a court case as many believe that the man with the best/most expensive lawyer wins.
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Re: What is the main difficulty in a defamation case?

Postby Hairyloon » Thu Oct 26, 2017 6:25 pm

theycantdothat wrote:
Hairyloon wrote:I can see a general difficulty in defamation claims in proving that what was said was not true, but if the reporter has admitted that it was not true, then that seems pretty much covered.


You are forgetting that what is said/written must also be defamatory. Assuming Hairyloon does not play the violin and I write that Hairyloon is a great violin virtuoso, that would not be defamatory.

Not so much forgetting as ignoring for relevance, but thank you for the correction.

If your main objective is to put the record straight an apology or withdrawal should suffice.

It might do if the withdrawal had some equivalence to the defamation. The case in question was reported in a full front page spread and the retraction could be covered by a postage stamp.
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Re: What is the main difficulty in a defamation case?

Postby Millbrook2 » Fri Oct 27, 2017 12:24 pm

Hairyloon wrote:
theycantdothat wrote:
Hairyloon wrote:I can see a general difficulty in defamation claims in proving that what was said was not true, but if the reporter has admitted that it was not true, then that seems pretty much covered.


You are forgetting that what is said/written must also be defamatory. Assuming Hairyloon does not play the violin and I write that Hairyloon is a great violin virtuoso, that would not be defamatory.

Not so much forgetting as ignoring for relevance, but thank you for the correction.

If your main objective is to put the record straight an apology or withdrawal should suffice.

It might do if the withdrawal had some equivalence to the defamation. The case in question was reported in a full front page spread and the retraction could be covered by a postage stamp.


I have always thought that retractions should cover the same area as the original report even if it contains few words and lots of blank space. It couldn't be hidden away then.
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Re: What is the main difficulty in a defamation case?

Postby Hairyloon » Fri Oct 27, 2017 12:28 pm

Millbrook2 wrote:I have always thought that retractions should cover the same area as the original report even if it contains few words and lots of blank space. It couldn't be hidden away then.

Yes, but that is only likely to happen through legislation and I am reluctant to call for regulation of the press under the current government. It is a tricksy business at the best of ties.
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Re: What is the main difficulty in a defamation case?

Postby dls » Fri Oct 27, 2017 2:53 pm

general difficulty in defamation claims in proving that what was said was not true


It is for the defendant to prove its truth if he claims justification.
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Re: What is the main difficulty in a defamation case?

Postby dls » Fri Oct 27, 2017 2:55 pm

The case in question was reported in a full front page spread and the retraction could be covered by a postage stamp.


The process is now very much more sophisticated.
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