The Poppy Appeal Case - Essay Example

The Poppy Appeal Case The facts involve the Guardian having published a 000 word piece written by Simon Bigot headed ‘Let’s not celebrate Britainsrole in the drug trade’. Simon Bigot is one of the Guardians regular columnists. His piece was published on the page preceding the editorials and correspondence, which is the usual place for comment and opinion pieces. The extracts of the article claimed to be defamatory are the following: “Ninety years ago the Poppy Appeal devised a symbol that was appropriate to their aims. Back in the 1920s most Britains had uncles or fathers who had been injured in the Great War, and all of them knew the quotation from that great elegy for the First World War dead: ‘In Flanders field, a poppy grew’. Three generations have passed since the 1920s, and people no longer share these cultural references. Today in 2010 most inner-city youngsters associate the red poppy with the production of opium, morphine and heroin. The average twenty-year old in Toxteth, Gateshead or Hackney looks in bewilderment at politicians and news-readers all dutifully wearing their poppies. Why are they all advertising the drug-trade, and what connection does that have with Britains current wars? The smarter ones soon work out the answer: it must be in celebration of the fact that opium production has soared in Afghanistan since the British Army took over Helmand from the Taliban ... Since the Anglo-Chinese Opium Wars of the 1840s the British Army has long been involved in facilitating drug trafficking. But is this something we should celebrate each year by supporting the Poppy Appeal? BRITISH LEGION, listen to me! If your present purpose is to collect funds for the wounded of Britains elective wars in Bosnia, Iraq and Afghanistan, then you need a less controversial symbol. How about a paper representation of a shrapnel wound, red with blood, that can be pinned to each politicians lapel? ... Until the BRITISH LEGION gets its act together, we must boycott the Poppy Appeal. At present everyone wearing their artificial red poppy is signaling their support for the drug runners of Afghanistan and for those British soldiers who collude with them. Issues 1. Whether or not words used in the article are defamatory. 2. Whether or not the British Legion as a charitable organisation as a claimant may sue for damage to its reputation. If the answer is favorable, then the next issue is whether or not Smith may sue on behalf of the charity. 3. Whether or not it is important to determine Simon Bigot’s status as an employee of Guardian or a freelance writer in a claim for defamation. 4. Whether or not the Guardian the defences as to the responsibility of publication would prosper against a claim for defamation. 5. Whether or not Colonel Jones is still an officer serving the British Army. Ruling and Advice 1. The most important issue is whether or not the words in the article are defamatory. Firstly, it must be explained what exactly is a defamatory statement. Winfield, provided “a widely accepted definition of a defamatory statement” which he says that: “ … [it] tends to lower a person in the estimation of right thinking members of society generally; or which tends to make them shun or avoid that person … ”1 Another “classic definition of a defamatory statement is one ‘which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule.”2 Using the above definition, let us now examine the article. In the case at bar, the title was entitled “Let’s not celebrate Britains role in the drug trade.” The article also stated the following: “Since the Anglo-Chinese Opium Wars of the 1840s the British Army has long been involved in facilitating drug trafficking. But is this something we should celebrate each year by supporting the Poppy Appeal?” It goes on to say that, “Until the BRITISH LEGION gets its act together, we must boycott the Poppy Appeal. At present everyone wearing their artificial red poppy is signaling their support for the drug runners of Afghanistan and for those British soldiers who collude with them.” These statements not only particularly refer to the British Legion, it also refers to their poppy appeal as “signaling their support for the drug runners of Afghanistan and for those British soldiers who collude with them.” These words not only injure the reputation of the British Legion, it also affects the charitable purposes of the said organisation, as the article itself calls for the “boycott of the Poppy Appeal.” Furthermore, it puts into a bad light the soldiers of the British Army which the article says, “the British Army has long been involved in facilitating drug trafficking.” As held in Henderson v London Borough of Hackney & Anor [2010] EWHC 1651 (QB), “The allegations of malice must go beyond that which was equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice in the sense that the relevant person was either dishonest in making the defamatory communication, or had a dominant motive to injure the claimant. Mere assertion would not do.” In this case, one could readily infer malice as the article was not aimed only to give their opinion for the British Legion to stop using the red poppy as their symbol for their charitable purposes, it also states that such symbol signals “their support for the drug runners of Afghanistan and for those British soldiers who collude with them.” There was a further statement that the British Army have been involved in facilitating drug trafficking. Such statements however, provide no evidence as to the truth of the statement that such symbol signals support for drug runners or that it is generally perceived to be such by the people. There is also no evidence that British Army have been involved in facilitating drug trafficking. Unless Simon Bigot and the Guardian can prove the truthfulness of these statements, which can be their defence to a claim of defamation, “the burden of proof lies with the defendant to prove the truth of the statement rather than the plaintiff to prove that the statement was untrue.”3 And in this instant case, there was no evidence offered by Bigot nor the Guardian as to their statements which heavily impute on the reputation of the British Legion and the British Army. Neither can such article be considered as a fair comment. In order to use fair comment as a defence, “the defendant has to prove that the comment is of a public interest,4 is an opinion based on true facts,5 is fair,6 and is not malicious.7 Even if the article were considered to be of public interest public interest, it is not an opinion based on true facts nor can be considered as a fair comment. It cannot be considered as an opinion based on true facts as there were no evidence presented as to the truthfulness that the poppy symbol signals support for drug runners or that British Army have been involved in facilitating drug trafficking. Furthermore, such article was further placed preceding the editorials which it should have been placed had it intended such article as a mere opinion. And in order for such article to be considered as a fair comment, it must only protect opinions,8 which in this case is doubtful of being one being placed in a section of the newspaper not for opinions. There is also a liability for getting ones facts straight which is strict and the publication by the press of a number of types of statements enjoys a statutory privilege, but their scope is narrow.9 Finally, the statement is malicious, as the statements were not proven to be true or was made with just cause.10 Just cause or reason takes into consideration the assessment of the conduct11 of both Simon Bigot and the Guardian. In this case, not only was the article published in a section other than that for an editorial, it called for a boycott of the purposes of the organization other than mere express of it’s opinion. Further, in assessing a defamatory statement, there is a presumption of falsity which is a necessary feature on the law on defamation.12 Thus the burden of proving the truth of an imputation is on the defendant.13 Given these, Simon Bigot and the Guardian have the burden of proving the imputation they have made in the published article as there is a presumption of falsity on the statements they have made. 2. The determination of the second issue is important since it would give a legal standing for the British Legion to sue on one hand, and it would give a ground for the Guardian and Simon Bigot, on the other hand, to question the personality or legal standing of such charitable organization to sue. To answer the first issue, the British Legion as a charitable organisation can be a claimant in a defamation case. In the case of Derbyshire County Council v Times Newspapers Ltd, Derbyshire County Council v Times Newspapers Ltd [1993] AC 547, Lord Keith of Kinkel, in determining the issue of whether a local authority, not a trading corporation, was entitled to sue in libel, stated that, “the authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the unions ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions.” In this case, the British Legion’s ability to continue its charitable purposes may be affected by a defamatory matter, hence, it may sue as a claimant in a defamation case. However, a charitable organisation must be corporate entity or a juridical person in order to have the capacity to sue. As held in the case of North London Central Mosque Trust v Policy Exchange & Anor,14 “The trustees could only sue on behalf of C if C could itself sue. Not having been incorporated, C did not exist as a legal entity. Accordingly it had no reputation. While a non-corporate charity could “in a loose sense, have a good or bad reputation which might encourage or discourage people from giving it money,” a reputation in such a loose sense was “not good enough” for a claim in libel.” Thus, Simon Bigot and the Guardian may question the capacity of such organization to sue if it is found that British Legion is not a corporate entity. Furthermore, they may also question if Smith has the authority sue on behalf of the charitable organization, as it is the directors or the trustees who has the legal responsibility and are usually entrusted to sue on behalf of the charitable organization.15 Thus, if Simon Bigot and the Guardian find out that the British Legion is not a corporate entity that Smith has no authority to sue on behalf of the British Legion, such issues may be used as their defence to dismiss the claim for defamation. 3. As to the third issue, it does not matter whether Simon Bigot is a freelance writer or a regular employee of the Guardian, as the author and publisher may still be sued under Defamation Act 1996 which defines author and publisher as: “author” means the originator of the statement, but does not include a person who did not intend that his statement be published at all; xxx “publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.”16 This issue cannot be used as defence by Simon Bigot and the Guardian. 4. The Guardian’s possible defence that “(b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement,”17 may not prosper since in the case at bar, the article was published on the page preceding the editorials and correspondence. This shows that the article may not have been intended as an opinion but to state particular facts. Furthermore, it is impossible that it could not have known the publication of such statement which points to the reputation of both the British Legion and the British Army as well. 5. The fourth issue is important to determine since one of the requirements in order for a claim of defamation to prosper is that “the statement must identify the claimant”18 or that “a malicious falsehood claim that the words complained of made some reference, direct or indirect, to the particular claimant.”19 If it is found that Colonel Jones is an officer serving the British Army in Helmand then the words “British Army has long been involved in facilitating drug trafficking” particularly refer to the claimant, who is still part of the British Army. Otherwise, if Colonel Jones is not anymore serving the British Army, then this can be used as a defence by Simon Bigot and the Guardian, as the words do not directly or indirectly refer to the claimant. Considering that the evidence pointing to the defamatory statements made outweigh the possible defences that may be made by Simon Bigot and the Guardian, it is better if they made amends with Smith and Jones. References Anil, S. 2001. Cyberspace and The Law of Defamation: Developing A Workable Model. Computer and Telecommunications Law Review, 2001, 7(7), 175-183. Campbell v. Spottiswoode [1863] 3 B. & S. 769. Charity Commission, UK. Retrieved from http://www.charity-commission.gov.uk/Publications/cc3.aspx#e2. Cooke, J. 1995. Law of Tort, 2nd ed. Pitman Publishing. Defamation Act 1996, s 15 and Schedule 1. Derbyshire County Council v Times Newspapers Ltd, Derbyshire County Council v Times Newspapers Ltd [1993] AC 547. Descheemaeker, E. 2009. Protecting Reputation: Defamation and Negligence. Oxford Journal of Legal Studies, 2009, 29(4), 603-641. Henderson v London Borough of Hackney & Anor [2010] EWHC 1651 (QB). Kemsley v. Foot [1952] A.C. 345. London Artists Ltd v. Littler [1969] 2 All E.R. 193. Marathon Mutual Ltd v Waters, [2009] EWHC 1931 (QB). Naniwadekar, M. 2010. The Application of the Single Meaning Rule to Cases Other than Defamation. International Company and Commercial Law Review, 2010, 21(12), 408-411. North London Central Mosque Trust v Policy Exchange & Anor, [2009] EWHC 3311 (QB), Retrieved from http://www.5rb.com/case/North-London-Central-Mosque-Trust-v-Policy-Exchange--Anor. Parmiter v. Coupland (1840) 6 M & W 105, at 108 per Parke B. Thomas v. Bradbury, Agnew & Co. Ltd [1906] 2 K.B. 627. Read More