The Problematic Discourse on ’Philippe Starck’s’ Delano Hotel (1999) - Legalities of writing
Appendix B: Details for Claims about Legalities of Writing
Considering that the following excerpts are in legalese, they are provided as quotes for the purpose of illuminating the problems and avoiding the pitfalls of summarizing the technicalities in legalese. The following is a detailed account of the surface of the legal consideration. While only abstractions can be provided, the following illustrates the minefield of procedures and interpretation.
Judges tell juries that a statement about a person is defamatory of him if it tends to do any one of the following:
(a) expose him to hatred, ridicule, or contempt;
(b) cause him to be shunned or avoided;
(c) lower him in the estimation of right-thinking members of society generally; or
(d) disparage him in his business, trade, office, or profession.
(Welsh and Greenwood 1995: 126)
"Many statements are capable of more than one meaning. An apparently innocuous statement may carry an inference that, in the ordinary and natural meaning of the word, is defamatory." (p. 127)
"Journalists tend to accept without question the longstanding journalistic policy of declining to show copy to the subjects of investigations but it could be that this approach appears less than fair to judges and juries." (p. 133)
"The journalist has a duty to his readers to expose false claims." (p.132-3)
"One important defence is justification, which means truth. You must be careful you have your facts right." (p. 133)
"The other important defence is fair comment, which allows people to give their honest views on matters of public interest." (p. 133)
"Justification i.e. that the facts alleged are substantially true... The defence of fair comment. Fair comment and criticism on matters which have become public property are protected from claims for defamation. The statement complained of must be published honestly as criticism and be the real opinion of the writer. The statement should not be made for some malicious motive, and must be based on facts which are in substance true (or on some facts honestly believed to be true which are themselves covered by privilege). (Jones 1999)
"The defence also fails if the person suing can show the journalist was motivated by malice." (Welsh and Greenwood 1995: 133)
Examples of Precedents related to Writings on Design and Designers
Regarding products, designers, and businesses:
"Can a publication defame a person or a firm by disparaging goods? It is an increasingly important question as product testing becomes commonplace in newspapers and magazines.
The answer is yes... To fall within this category it is not sufficient that the statement should simply affect the person adversely in his business; it must impute to him discreditable conduct in his business, or else tend to show that he is ill suited or ill qualified to carry it on because he has some characteristic or lacks some other characteristic." (p. 131)
"In the 1994 case in which Yachting World had to pay £1.485 million damages to the manufacturer of a yacht, Walker Wingsail Systems plc, the article contrasted the manufacturer’s striking claims for the yacht’s performance with the drastically poorer performance of the boat when tested by the journalist... The manufacturer said the article meant it had deliberately misled the public by its publicity material." (p. 132)
"Not all words that criticise a person’s goods are defamatory. For example, a motoring correspondent could criticise the performance of a certain make of car without reflecting upon the character or the dealer. (Again, the statement might give rise to an action for malicious falsehood...) (p. 132)
"It is defamatory to say of a person that he is insolvent or in financial difficulties— even though this may impute no blame to him at all." (p. 127)
The Effect on the Working Culture
"The journalist’s job is to discover and record the news. Wherever he looks he will find people with vested interests trying to prevent him from doing so." (p. 202)
"The journalist’s job in recognising and avoiding libellous statements would be simpler if there were a comprehensive definition of defamation, but no one has yet devised a definition which covers every case." (p. 126) [According to international copyright lawyer Paul Tackaberry "Generally speaking, republishing a libel constitutes a libel" .]
"Newspapers... are sometimes reluctant to fight defamation actions even when they seem to have a strong defence. There are various reasons for this.
The first is the uncertainty involved in libel actions... Because the outcome of a case may be unpredictable, a newspaper has to consider very carefully indeed the money involved if it loses." (p. 122)
"It is not surprising that, faced with that kind of decision, even the more ardent campaigning papers sometimes decide ... not to carry the story... The alternative may be the extinction of the paper." (Welsh & Greenwood, p. 124)
"The legal costs of fighting a libel action, generally met largely by the loser, are substantial, frequently greater than the damages.
Very large sums have been awarded not only against wealthy tabloid newspapers but also against small publications whose continued existence has been threatened. And they have been awarded not only for stories of sex and scandal but also for articles in which the media erred while trying to fulfil their traditional role as the public’s watchdog." (p. 123)
It is important to note that academic writing is not immune to issues of libel. In the intertextuality of this dissertation, the University of Central England’s legal counsel, Shakespeares Solicitors, advised the following:
"The normal principles of defamation law will apply [to dissertations] and there is no special exclusion in respect of academic works... Generally the intention of the person making the statement is not relevant. Damages in an action for defamation is normally presumed, and no proof of actual damage is required... In respect of publication the statement need only be seen by one other person... and I consider there would be sufficient publication by reason of the dissertation being available in the library." (Jones 1999).
The Authors’ Qualifying Statement
"But first a word of warning. Because the law of defamation is so complex, this book can provide nothing more than a rough guide... The golden rule for the journalist is that if publication seems likely to bring a threat of libel, take professional advice first." (p. 124)
Dead or Alive?
Our safeguard is that we "cannot defame the dead" according to defamation lawyer Richard Cullen, co-author of the defamation chapter in Fu and Cullen’s Media Law in the PRC (1996) , yet problems can arise with other legal concerns. So while Michelangelo and Caravaggio might be homosexual (Emmanuel Cooper 1994), and David Carrier discusses writings which make these claims about Caravaggio (1991: 49-80), it shows that various writers don’t find these assertions problematic from a legal perspective. It also accounts for the large wave of information about various people which rises in print after their deaths. Problematically, after one’s death, the dead can’t speak back and the dead can’t sue us, which creates additional problems with the power of the writers over a dead subject.
Philippe Starck Delano hotel - table of contents | Appendix B: Details for Claims about Legalities of Writing