The game

11.11.1 The game

Libel is a game in which wealthy people gamble large sums of money to correct and gain compensation for the slurs cast on their character by the media. The first move is made by the media – it must make the decision whether to publish/broadcast material that may be considered defamatory of an individual. That decision may be made with no awareness of potential trouble, especially when the publisher does not realise that there is any identifiable subject of the allegation/material. However, more often than not the publication relates to some story or piece of investigative journalism that contains a defamatory allegation. When this is the case, factors to be taken into account may include:

䊉 Whether the allegation is true. This is of only secondary importance, but it may be that the nature of the allegation means the publisher feels it is

important that it is brought out into the open, even at the risk of a libel action.

䊉 Whether the allegation can be proved to be true. This is the primary consideration prior to publication, and may involve judgements not only

on whether there is enough evidence to prove the allegation, but also on

Managing in the Media

whether that evidence can be used in court. If your only evidence comes from an informer who has risked his or her job or even life to give you information, can you risk exposing the informer through a court battle?

䊉 Whether the subject will sue. Even if the allegation cannot be proved, it may be that the subject is unlikely to sue. This may be because of a lack

of funds, although such an individual may still make a complaint to the relevant regulatory body and may even bring a malicious falsehood action (and there is now the possibility of a ‘no win no fee’ libel action). There are also individuals who, because of their position, may not wish to bring an action, the usual example being members of the royal family.

If the outcome is favourable and the publication/broadcast goes ahead, the next move falls to the subject of the allegation. He or she must make the decision as to whether to sue. Factors that might influence this judgement include:

䊉 Whether the allegation is true, and whether it can be proved to be true. The truth of an allegation may not deter the start of a libel action; the

threat of such an action may be enough to force the publisher to back down (and may even be used to deter publication if the individual finds out prior to it taking place). Moreover, it may be that the nature of any likely evidence is so weak that, even if the allegation is true, it may still not

be provable (or able to convince a jury). 䊉 Whether there is adequate funding in place to commence an action, and

if necessary to take it all the way to court. 䊉 Whether the whole allegation is so serious that fighting it is worth several

years of misery. 䊉 Whether the resulting media attention might not cause more damage

and embarrassment than the original publication, and in particular whether it might provoke further investigation that may uncover facts better kept secret.

If the individual takes the decision to sue, then there follows a period of legal manoeuvring in which offers to settle may or may not be made. If no agreement can be reached, and if the proceedings are not struck out for some reason, the case will end up in court.