Copyright & Libel Issues 

In this section we look at how copyright and libel issues may affect clubs.

Club magazines

Libel:

Any club or class association publishing a newsletter or magazine, particularly if it is lively and controversial, will inevitably have cause from time to time to make a judgment as to whether to print, amend or withdraw a personal or professional comment likely to affect the reputation of some individual, firm or company.

Libel is defined in this context as the publication of defamatory matter in writing.

Defamation is the making of a statement that reflects on the personal character, reputation, office or vocation of the victim.

So far as personal character is concerned the test of defamation is whether the statement is likely to lower the plaintiff in the estimation of right-thinking members of society generally, or would cause him to be shunned or avoided.

Defences to libel

Justification:

Clearly a plea of justification should not be entered until the defendant has clear evidence to support the claim. If a club magazine intends to discredit, for example, a local yacht broker or boatyard it would be as well to have details of at least two or three hard cases, complete with witnesses who will be prepared to appear for the defence, before venturing into print. So often a complaint by one individual member may be found on close examination to lack real substance and a defamatory article based on such a complaint may land the editor and the club in trouble.

Fair comment:

Fair comment and criticism on matters of public interest are protected, even though the character of an individual may suffer. To fall within the defence of fair comment the statements complained of must be published honestly as criticism and as the real opinion of the speaker or writer and not from some malicious motive. In fact, in both "fair comment" and "qualified privilege" cases, the motive of the person publishing the remark is all- important. However, in cases of criticism of artistic or literary works (and that includes sailing books) it is open to the critic to be as withering as he pleases, so long as he is not activated by an improper motive. If a book is dreadful, badly written and a waste of money, then the law takes the view that the critic should not be circumscribed in his right to say so. Even exaggeration will not make a comment unfair. However wrong a comment may be, or however prejudiced the writer,!! may still be within the prescribed limit, so long as it is not perversely unjust.

The right to comment is not limited to literary or artistic works. The public acts of a public person (eg. a local councillor, or a harbour commissioner) may be made the subject of fair comment by all members of the public. Where there are untrue allegations of alleged misconduct, the defence does not apply.

Where the alleged libel consists partly of statements of fact and partly of statements of opinion based on those facts, those facts must be substantially true in order to support a defence of fair comment. Private institutions on the other hand may not be made the object of protected public comment; a local newspaper article regarding a club commodore's incompetence would not therefore be protected, but a club magazine's remark may be protected under the defence of qualified privilege.

Qualified privilege:

This arises where the author of the inaccurate statement had a legitimate reason or a legal, social or moral duty to make it known to the recipient, who himself has a corresponding interest or duty in receiving it. For the defence to succeed the defendant must show:

(a) that the occasion was fit;

(b) that the statement had reference to the occasion; and

(c) that the statement was published from right and proper motives.

Examples of qualified privilege are the compiling of a staff report or reference, or a relevant and necessary article in a house magazine or a letter from a tenant to co-tenants about the landlord. It is an essential ingredient of the defence that the information or statement is necessary for the information of recipients, and for the guidance and regulation of their conduct.

If the communication cannot influence conduct, then there is no privilege. The defence is available even where a wide publication has been made; an MP giving public political advice to all his constituents has been held to be entitled to this defence.

Unintentional defamation:

Under Section 4 of the Defamation Act 1952 there is a procedure whereby in cases of unintentional and non negligent defamation within the limits of the section a defendant may avoid liability to pay damages if he is willing to publish a reasonable correction and apology and to pay the plaintiff's reasonable costs and expenses.

 

The section only applies to words published innocently, in that the publisher did not intend to libel the victim or that the words were not obviously libelous but had a hidden meaning of which the publisher was ignorant, and that in either case he exercised all reasonable care in relation to the publication.

The publisher may make a statutory "offer of amends" which will mean offering to publish an apology and correction, and as far as possible distributing the apology and correction to the recipients of the original libel.

A statement will only be libelous if it is untrue but even if the statement may be true, it will be a brave editor who prints seriously critical material in his magazine unless he is prepared, and has the resources, to defend a libel action.

Statutory defence:

In an action for a libel contained in any public newspaper or periodical the defendant may plead that it was inserted without malice and without gross negligence, and that as soon as the facts were brought to his attention he inserted at the earliest opportunity a full apology, or if the periodical appeared less than once a week, had offered to publish an apology in any newspaper or periodical selected by the plaintiff. Payment into court must also be made of an unspecified sum, which is a matter of judgment for the defendant.

If the offer of amends is accepted, the victim cannot thereafter take legal action. If the offer is rejected and legal action taken, the defendant may raise the question of the offer in his defence. The offer will be a complete defence if the defendant can show it was reasonable, was not delayed, and that the statement complained of was not made maliciously.

Copyright:

The editor of a club or class magazine will often wish to reprint reports or articles of interest published in the commercial yachting press. As a rule it should always be assumed that a magazine's proprietors enjoy the copyright of any magazine article or report. Accordingly, an unauthorised publication or copying of such an article is likely to constitute a breach of copyright. However most magazines will be only too pleased to give their consent to the reprinting of an article provided that the reprint is courteously attributed to the magazine in question.

Breach of a copyright, or failure to comply with condition attached to consent to reproduce will give rise to a cause of action for damages and injunction. It pays (and requires very little effort) to keep in with the yachting press.

If you require further assistance please do not hesitate to contact the Legal Team Tel:  0844 5569519  Email: legal@rya.org.uk.