The allegations of rape, sexual assault and emotional abuse by comedian and actor Russell Brand seemed like a bombshell scoop to many readers and viewers. But for the journalists at The Times, Sunday Times and Channel 4’s Dispatches, the publication of their report was the result of four years of reporting, investigating and fact checking.
The claims related to four alleged victims from 2006-13, when Brand was at the height of his fame. Pre-empting the release of the Channel 4 documentary and the Sunday Times splash, Brand posted a video denying the allegations and stating that all his previous relationships were consensual.
Brand, who has amassed a following of over 6.5 million with his videos on wellness, politics and conspiracy theories, criticised the “mainstream media” and claimed he was a victim of a “coordinated attack” by those wanting to silence him. He ended by questioning whether there was “another agenda at play”.
Some of Brand’s defenders have added to this narrative, implying that the timing of the report was connected to his critiques of mainstream media. In a reply to Brand’s video, X CEO Elon Musk wrote: “Of course. They don’t like competition.”
But allegations of serious criminal offences cannot be published at the drop of a hat without serious consequences. Newspapers must be rigorous in reporting to avoid violating the Defamation Act 2013.
Defamation is a spoken or written statement that turns out to be false, but is harmful to the reputation of the person spoken or written about. To sue for defamation, a claimant must prove they suffered “serious harm” to their reputation, trade or profession as the result of a published statement. The statement can be spoken (slander), or published in writing or broadcast (libel).
How much proof is needed?
The “burden of proof” in England and Wales is different in criminal and civil courts. A jury in a criminal case must find the defendant guilty beyond “reasonable doubt”. In a civil case, like defamation, the burden of proof is lighter. The judge will decide on the “balance of probabilities” – they will weigh up all the evidence and decide who is telling the truth.
Among the handful of defences available, publishers or individuals accused of defamation may use the defences of “truth” and “public interest”.
A judge hears evidence from both sides and decides whether or not the allegations are “substantially true”. If the defendant uses a public interest defence, the court will scrutinise whether the information was researched and presented responsibly and the publisher reasonably believed publication was in the public interest.
Read more: Wagatha Christie: what the judgment said, and what it means for future libel litigants
A publisher may present their reporting as proof of a truth defence. When actor Johnny Depp sued The Sun newspaper, which published a story calling him a “wife-beater”, News Group Newspapers’ lawyers did just that.
They produced a raft of evidence including 38 witness statements, video recordings, live witness testimony, medical evidence, photographs, digital evidence and text messages. Depp lost the case, but two years later won a defamation suit in the US against his former partner Amber Heard, which was decided by a jury.
How do newspapers investigate sexual assault allegations?
Allegations about Brand were reportedly an “open secret” in the industry. But rumour and gossip is not enough to defend a defamation case in court and it seems no outlet can have believed they had enough evidence to publish.
The Sunday Times said reporters were working on the investigation since 2019. As part of any investigation of this nature, media regulators set out guidelines around how ethical journalism should be conducted in their codes of practice.
The Independent Press Standards Organisation’s editor’s code of practice – to which The Times and Sunday Times have signed up – says journalists must keep an “audit trail” of evidence gathered. The Ofcom broadcasting code has a similar provision.
The journalists in the Brand investigation reportedly interviewed “hundreds” of sources including friends and relatives of the alleged victims, comedians, TV and film executives, taxi drivers and therapists. It has been reported that accusers undertook lengthy interviews and provided information intended to corroborate the allegations.
Generally speaking, the material for an in-depth investigation can include signed and dated witness statements, affidavits, text messages, medical evidence, therapy notes, telephone call records, photographs, emails and other communications. Everything must be verified, and logged meticulously, which is why it takes so long for an investigation to see the light of day.
Once it is reported, the story is scrutinised by defamation lawyers – “legalled”, in industry lingo. Lawyers’ advice is given, intended to ensure every word is legally sound, and enough evidence has been gathered to run a defence in court, should the subject sue. It is up to the editors, however, if that advice is taken.
In order to run either a truth or public interest defence, the news organisation must usually offer the subject the chance to respond, known in law as a right of reply. Brand was approached and initially his lawyers refused to comment. He later published his YouTube denial.
What are the consequences of a defamation suit?
A defamation lawsuit can be costly – damages can reach £350,000 and court costs run into the millions. This is why most defamation cases are settled out of court.
But it is not just the financial cost which makes editors cautious. Journalists have a professional responsibility to be accurate, and being successfully sued for libel could damage the reputation of a trusted media brand and a journalist’s career.
Editors may run a mile from difficult stories for fear of being sued, particularly if the subject is rich and famous. This was evident in the wake of the Jimmy Savile scandal, which was not reported until after his death – you can’t, in law, defame the dead.
Why are Brand’s accusers anonymous?
In response to the reports, many social media commentators have made potentially libellous statements of their own about Brand and his accusers – remember, individuals can be sued for defamation too.
Some of the comments about the victims have been rife with misogyny and misconceptions about sexual assault victims, accusing them of lying and questioning why they have remained anonymous.
In England and Wales, the identity of victims and alleged victims of sexual assaults are protected by law. They are granted lifelong anonymity from the moment they disclose the attack to someone else, and even if they don’t report it to the police. It is illegal to publish their name or other identifying details, unless they are over 16 and waive their anonymity in writing.
Reporters do not just publish the allegations of anonymous victims. The complainant will not be anonymous to the reporter, they will know the person’s true identity and will be under pressure to conduct a detailed and meticulous investigation to verify their claims.
Ultimately, taking someone at their word alone is too risky. If you want to know whether you can trust a newspaper or television report, consider the amount of work that has gone into the story – and the high stakes for the publisher. The history of successful libel cases does, however, show that these high standards are not always adhered to.