Defamation in the media: between laws and ethic

At the beginning of Part 3 of Media Law: cases, materials and commentary, defamation is presented as the liability area with the greatest impact on the media (Rolph et alii 2015, p.151): for this reason, it is important for every journalist to recognize what defamation is and what impact it has on the defendant, on the subject of the article and on society. Moreover, it can be argued that defamation is as much a legal construct as it is an ethical one, since while affecting the journalist from a legal perspective, it also directly impacts the subject’s emotions and image, producing negative effects on their social life.

From a legal perspective, Koehler (1999, p.217) presents a defamatory statement as ‘one tending to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace’. It can be said that, in general, a statement is defamatory according to the law if it says falsities to discredit someone; however, professor Rick Sarre (2018, YouTube) underlines that there is defamation only if the comment clearly identifies someone and is made public, and even in this case it is the context that defines whether the publisher can be charged or not.

In fact, there are many conditions to take into account when deciding if something can be considered liable, as it’s happening for search engines that, for certain elements, might be sued for defamation, but from other perspectives are considered as innocent disseminators (Legal Services Commission of South Australia, 2012).

Moreover, it’s important to remember that there are different types of defenses and penalties, all related to specific cases, as well as good behaviors that need to be held to avoid any sue.

For all that has been said it should be clear that defamation is, and not only in Australia, a complicated matter, that has to be dealt with using attention and precision: for this reason, governments have their own rules to discuss, and possibly punish, a defamatory publication. For instance, the South Australia’s Defamation Act (2005, p. 6) states that ‘If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication’.

Furthermore, ethical considerations can also be done upon defamation. Drawing on consequentialist theories, it can be said that a defamatory statement also becomes ethically incorrect when it negatively affects the person identified by the comment, and also society more in general; according to this ethical thinking, ‘the wrongness of actions is determined entirely by their consequences’ (Baggini and Fosl 2007, p.56).

From this perspective, those kinds of comments aren’t ethical, as they have bad effects on someone: in fact, even if they were written to report something to the audience, that fact isn’t true and therefore doesn’t generate the greatest happiness for the greatest number of people, as no one benefits from that defamatory statement.

Using a different point of view, the deontological approach would say that moral action is all based on the respect of duties and principles, regardless of the consequences (Baggini and Fosl 2007, p. 64): therefore, a defamatory publication is ethically incorrect in the frame of deontological theory as well, so far as the publisher hasn’t respected their duty as a citizen to be respectful, nor their protocols as a journalist to give a true and fair representation of society.

Finally, it can be argued that virtue ethics would also have something to say against defamation, given that the fundamental principle which is at the base of this group of theories is that someone’s actions are ethical so long as that person is virtuous. ‘According to this approach, right actions are defined according to the virtues of those who perform the actions, not the other way around’ (Baggini and Fosl 2007, p. 94). This means that, from an ethical perspective, one’s comment is unethical and defamatory when one hasn’t been the best version of oneself, and immoral, as this person hasn’t properly used, in their publication, the rules of conduct of their group or society.

Consequently, defamation is as much an ethical issue as it is a legal one, as not only the legitimacy of actions is questioned, but also their inner nature, the one that is being judged by human spirit more than by any law, the same one that afflicts the emotional sphere of a group of people or an individual.

The case of Sophie Mirabella in Victoria, Australia, former Liberal member for Indi, sheds light on the dual identity of defamation. In 2013, Mirabella had accused a regional north-east Victorian newspaper of publishing a false news that ruined her career.

The publication affirmed that she had pushed her political rival Cathy McGowan out of a photo opportunity with Liberal MP Ken Wyatt during a Benalla nursing home media event. As the article wasn’t telling the truth, and the report was unfair, the newspaper was charged $ 175,000, after admitting the falsity of the publication during a long process. Sophie Mirabella won the case, but the award in damages will never fix the emotional toll and her suffering for the loss of her reputation. Moreover, the negative consequences of this article, that strongly impacted her family’s life, would be interpreted by consequentialist theories as the proof of unethical behaviour by the regional newspaper. The journalist did not behave ethically according to the deontological approach either, as he didn’t respect his duties of honestly reporting the facts of Benalla nursing home. Virtue ethics would finally argue that the apology published six months after the event is a proof of good behaviour, but that it isn’t enough to excuse the unethical approach to the story held by the reporter, who didn’t demonstrate moral integrity.

From the journalist’s perspective it might be said that maybe he didn’t intend to create such a damage on Mirabella’s life: as Stockwell and Scott (2000, p.7) argue, sometimes reporters feel the pressure of deadlines, and don’t get properly informed on the events, giving a certain point of view that makes the story relevant but only gives a partial truth.

Quoting the authors, ‘Almost no one likes to be considered unfair or racist, and media workers who inflict unfair treatment are rarely aware of the harm their work may cause. They are surprised, and sometimes offended, by community criticism’ (Stockwell and Scott, 2000 p.7). Stockwell and Scott’s work, All-media guide to fair and cross-cultural reporting, is a really interesting guideline for those who are new to the job, as it provides simple but fundamental advice that every writer should remember: articles are written to give an image to the world, and in doing that they also shape it, in that the readers’ actions are deeply influenced by the way they perceive their reality, which is deeply affected by the media.

Many protocols and laws have been written, not only in Australia but all over the world, in order for reporters to build stories that can be based on others’ respect and trust. Yet there are basic rules that are mostly suggested by common sense, like choosing proper terms, giving a balanced description of events, not making assumptions but always verifying the facts concerning the subjects of interest, being respectful, and so on.

Defamation is an interesting subject that every journalist should deal with: their role as informers of major events and issues of modern societies is becoming more and more relevant, and this exposes them to higher risks.

The attention they have to put in their publications has become a necessity, given that their work can expose people to society’s criticism, and this consequently puts them under the risk of being sued for defamation. This is a liability area that concerns law in the same measure in which it concerns ethical issues, for its complicated and delicate nature, and its relevance for media workers has been, and still is, fundamental.

References

Australian Government, 2005, South Australia Defamation Act 2005, viewed 10 October 2018,

https://www.legislation.sa.gov.au/LZ/C/A/DEFAMATION%20ACT%202005/CURRENT/2005.50.AUTH.PDF

Baggini, J and Fosl, P 2007, ‘Part II: Frameworks for Ethics’, The Ethics Toolkit: A compendium of ethical concepts and methods, Blackwell Pub., Malden, MA, pp. 56-97

Koehler, E 1999, ‘The Variable Nature of Defamation: Social Mores and Accusations of Homosexuality’, Journalism and Mass Communication, Quarterly, Thousand Oaks, CA, vol. 76, fasc.2, pp.217-228

Legal Services Commission of South Australia, 2012, Law Handbook, Legal Services Commission of South Australia, viewed 10 October 2018, https://lsc.sa.gov.au/LawHandbook

Rolph, D, Vitins, M, Bannister, J and Joyce D 2015 ‘Defamation and the protection of reputation’, Media Law: cases, materials and commentary, Oxford University press, Part 3, pp.149-320

Stockwell, S & Scott, P 2000, All-media guide to fair and cross-cultural reporting, Australian Key Centre for Cultural and Media Policy.

UniSa online, 2018, COMM 2091 8 Defamation Overview, video, YouTube, 19 February, viewed 3 October 2018,

https://www.youtube.com/watch?v=565Pmr84OEg&feature=youtu.be