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Legal Eagle

Defamation

Q: Adapting a trial for television

I am adapting a well-known trial for television. In the course of the cross- examinations, many defamatory allegations are made. Can I include these in my script?

A: For present purposes, I will assume that the persons about whom the defamatory allegations are made are still alive, because a dead person cannot be defamed. Needless to say, untrue statements and defamatory expressions of opinion made in the course of the trial itself are the subject of absolute privilege, and therefore protected from claims of libel and slander - whether made by the parties themselves or by witnesses or advocates or judges, even if malicious or irrelevant to the trial itself. Otherwise, the administration of justice would be unacceptably obstructed. 'Contemporaneous' reports at the time of the trial itself (e.g.: in the press) also have special privilege.

In the case of a play or film about a particular trial, 'reports' (in whatever form they may take) of what took place at the trial are the subject of 'qualified privilege' from legal action for defamation if, and only if, they are fair and accurate and not malicious. In other words, a fair and accurate repetition without malice of a statement made by a witness (even if the statement itself is false and defamatory) will be privilege if repeated in the context of, and as part of, an account of what took place at the trial, unless the false statement is expressly or implicitly claimed by the person repeating it to be a fact which is not attributed to the witness. It will still be the subject of qualified privilege even if it is not repeated verbatim. The report of what took place, at the trial may be abridged, or condensed or summarised provided it gives a correct and just impression. Slight inaccuracies are acceptable if the account of what took place, is substantially fair and accurate. Conversely, however, substantial inaccuracies - even if made honestly and without malice - are not privileged, so it is important not to republish out of context statements made in the course of what may possibly have been a long trial. You therefore have to perform a delicate balancing act. It is clearly impracticable for you to publish everything said at the trial verbatim, which is not necessary and would be very boring in parts, but you must be sure that you do not distort or otherwise render defamatory, e.g.: by omission, parts of the trial which you do decide to include.

Presumably, you will be preparing your adaptation from a transcript of the trial. It might therefore be prudent for you to have a specialist lawyer read the transcript and your adaptation of its contents, particularly the bits you are worried about, and advise you whether he considers you are seriously at risk, although bear in mind that any opinion is worth no more than the person giving it and is not infallible.

Inevitably, your adaptation will be written in such a way as to involve an element of subjective selectivity with a view to enhancing the dramatic effect of the piece, which could possibly lead to distortion and result in a claim of defamation. One way of adding greater balance to the content of your work would be to follow the example, recently set by the producers of a play based on real-life judicial proceedings, of inserting detailed factual notes in the theatre programme relating to the history and outcome of the proceedings and the personalities involved, in order to put the work more in context and explain the background. It might also be helpful in these programme notes to explain, perhaps, why certain parts of the evidence have been omitted. Similar lead-in narration can be added in the case of a television performance or film. It might, although not necessarily, prevent a transgression, but should in any event go towards mitigation.

I should add that the statutory defence of qualified privilege does not apply unless publication of the offending material is made to the public in relation to a matter of public concern or for the public benefit. It would also not be a good defence if the person making the complaint is able to show that he asked you to publish in a suitable manner a reasonable explanation or contradiction in relation to his complaint and that you refused or neglected to do so.

My advice to you is that, if you feel you must publish material containing what you describe as 'defamatory allegations' made in the course of the trial, you should ensure that those bits at least are published word for word, and that they are attributed to the right persons, and not out of context. It is the bits which might possibly be defamatory about which you need to take particular care. If you follow that advice you should not have a problem.

First published April 1999