Controversy and the Media: How far can you go?
17 June 2016, Blog
When executives give media interviews, they invariably want to come across as confident and memorable. But occasionally, they also want to be controversial.
And that’s when one has to be careful to prevent an interview becoming unlawful.
You will have heard Presidential hopeful Donald Trump attacking his opponents in the strongest of terms, for example accusing Bill Clinton of sexual offences, and calling a TV news presenter a bimbo.
It’s well known that the US and the UK are “two nations divided by a common language”, and the same applies to the law. In the US, freedom of expression invariably trumps all else (excuse the pun!).
But would similar allegations fall foul of UK law? Well, possibly…… though it depends.
In most of the UK, a statement is defamatory if it refers to a person or an entity which “trades for profit”; and if the statement either causes serious harm to a person’s reputation or serious financial loss to a trading entity.
There are a number of defences to a defamation claim, all of which are complex. But one argument which is seen occasionally is the quaintly named concept of “vulgar abuse”.
The law accepts that freedom of expression entitles people to express strongly held views in strong terms. And judges recognise that a distinction must be drawn between comments which may be defamatory, and those which are just plain rude.
Twenty years ago, a well-known actor sued a reviewer for calling him “hideously ugly”. These days, similar comments would almost certainly not trouble the courts.
So if you want to make a controversial statement, you need to think clearly about what you intend to say, and why. One person’s rudeness might be another person’s serious harm to reputation.
But if you need to push the boundaries, there are some things you can do to minimise the risk of landing in hot legal water:
- Do you need to refer to a particular person or business?
- Are the remarks true?
- Can you phrase your words so they are honestly held opinions?
Freedom of expression isn’t a trump card on this side of the Atlantic, but it’s still possible to say what needs to be said. You just have to be careful.
And finally, what of the bimbo? Was that vulgar abuse? Or serious harm to her reputation? As ever, it depends!
By Tony Jaffa
Partner, Foot Anstey LLP