8: Part IV Personality Rights & Reputation Flashcards
When might sharing ‘information’ about a person give rise to delictual liability?
If A shares information about B, when does the law recognise the right of B to seek damages from A as a result of A having shared that information?
- breach of confidentiality
- invasion of privacy
- defamation
- negligent misrepresentation
Describe the Law Society of Scotland Practice Rules 2011 in relation to client confidentiality
“You must maintain client confidentiality. This duty is not terminated by the passage of time. You must also supervise your employees to ensure that they keep client matters confidential. Only the client, Acts of the legislature, subordinate legislation or the court can waive or override the duty of confidentiality. The duty does not apply to information about any crime a client indicates they will commit.”
Describe the test established in Coco v AN Clark (Engineers) Ltd for determining the existence of a breach of confidence
- That the information was confidential
- That the circumstances of disclosure imposed an obligation of confidence
- That there was unauthorised use of the information by the defendant to the detriment of the plaintiff
Summarise breach of confidence: how information is determined to be confidential and how a breach can be actionable
- A breach of confidence is an actionable wrong
- To be confidential, information must not be trivial or useless and it must not already be in the public domain
- For a breach to be actionable, the person to whom the information has been disclosed must owe aduty of confidence
Wainwright v Home Office [2004] 2 AC 406
Should the law recognise a right of privacy?
- A mother and son, were strip-searched for drugs on a prison visit in 1997. The search was not conducted according to rule 86 of the Prison Rules 1964 , and the claimants were humiliated and distressed. No drugs were found.
- The second claimant, aged 21, who was mentally impaired and suffered from cerebral palsy, developed post-traumatic stress syndrome.
- Claimed damages for trespass, and the second claimant claimed, in addition, damages for battery.
- Held that trespass to the person, consisting of wilfully causing a person to do something to himself which infringed his right to privacy, had been committed against both claimant
- However, no common law tort of invasion of privacy and that adoption of a right to privacy as a principle of law in itself was not necessary to comply with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
Describe the tension within article 8 and 10 of the ECtHR
8
- Right to Privacy: Individuals have the fundamental right to respect for their private and family life, their home, and their correspondence. This encompasses the right to privacy and personal autonomy.
- Limitations on Interference: Public authorities are prohibited from interfering with this right except when such interference is lawful and necessary in a democratic society. Interference may only occur if it is justified by reasons such as national security, public safety, economic wellbeing, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others.
- Article 8 safeguards individuals’ right to privacy and sets out the conditions under which public authorities may lawfully interfere with this right. Balances the need to protect individuals’ privacy with legitimate societal interests and concerns.
10
- Right to Freedom of Expression: Everyone has the right to express their opinions and receive and share information without interference by public authorities. However, states may require licensing for broadcasting, television, or cinema operations.
- Limitations on Freedom of Expression: While individuals have the right to freedom of expression, this right is not absolute. Restrictions may be imposed by law to balance these freedoms with societal interests.
- In essence, while the right to freedom of expression is fundamental, it is not absolute and may be subject to limitations to safeguard other important societal interests in a democratic society
Why is defamation harmful?
“But he that filches from me my good name Robs me of that which not enriches him Andmakes me poor indeed.”Shakespeare, William, 1564-1616. Othello : 1622. Oxford : Clarendon Press, 1975
By ruining the reputation of someone it has further impact on surroundings and career
What is defamation
- Defamation and Malicious Publication (Scotland) Act 2021
- 8th August 2022
- A codification of the law, not much case law in this area anymore
- England already done this, helps decision making
- s1(4)(a) a statement about a person is defamatory if it causes harm to the person’s reputation (that is, if it tends to lower the person’s reputation in the estimation of ordinary persons)
- (Sim v Stretch [1936] 2 All ER 1237, HL)
What is a statement
- Defamation and Malicious Publication (Scotland) Act s36(b)
- “statement” means words, pictures, visual images, gestures or any other method of signifying meaning
- Innuendo
- Libel / Slander
Describe the actionability of defamatory statements
Section 1
(1) This section applies to a defamatory statement made or published by a person
(A) about another person (B). There needs to be a third party, one cannot defame the person they are speaking to
(2) A right to bring defamation proceedings in respect of the statement accrues only if
(a) A has published the statement to a person other than B, and
(b) the publication of the statement has caused (or is likely to cause) serious harm to the reputation of B
Under section 3 of the DMP Act, a right to bring defamation proceedings in respect of a defamatory statement does not accrue against a person unless the person is…
(1) Except as may be provided for under section 4, a right to bring defamationproceedings in respect of a defamatory statement does not accrue against a personunless the person is
(a) the author, editor or publisher of the statement, or
(b) both-
(i) an employee or agent of such a person, and
(ii) responsible for the statement’s content or the decision topublish it.
(2) In this section, subject to subsections (3) to (5)—“author” means the person from whom the statement originated, but does notinclude a person who did not intend the statement to be published
Describe the element of statements in electronic form and who is not to be considered the editor
(3) Where a statement is in electronic form, a person is not to be considered theeditor of the statement or, in the case of an employee or agent of such a person,responsible for its content or the decision to publish it, if—
(a) the person’s involvement with the statement is only—
(i) publishing the same statement or providing a means to access the statement(for example a hyperlink) in a manner which does not alter the statement, or
(ii) marking the person’s interest in, approval of or disapproval of the statementin a manner which does not alter the statement (typically by means of asymbol), and
(b) that involvement does not materially increase the harm caused by thepublication of the statement
Describe public bodies in regard to defamation and malicious publication
A public authority may not bring defamation proceedings.
(1) For the purpose of subsection (1), a public authority is
(a) any institution of central government, including in particular the Scottish Ministers and any non-natural person owned or controlled bythem
(b) any institution of local government, including in particular each local authority and any non-natural person that such an authorityowns or controls,
(c) a court or tribunal,
(d) any person or office not falling within paragraphs (a) to (c) whose functions include functions of a public nature (unless excluded byregulations made under subsection (6)).
(5) For the avoidance of doubt, nothing in this section prevents an individual from bringing defamation proceedings in a personal capacity (as distinct from theindividual acting in the capacity of an office-holder or employee
Defamation and Malicious Publication – What Might be Defamatory?
- Criminality
- Immorality or immoral behaviour
- Dishonesty
- Financial Unsoundness
- Professional, vocational or business competence
- Disease?
Explain defences under defamation and malicious publication
Truth (replaces veritas)
Section 5
It is a defence to defamation proceedings for the defender to show that the imputation conveyed by the statement complained of is true or is substantially true.
(1) Where defamation proceedings are brought in respect of a statement conveying two or more distinct imputations, the defence under subsection (1) does not fail if—
(a) not all of the imputations have been shown to be true or substantially true, and
(b) having regard to the imputations that have been shown to be true or substantially true, publication of the remaining imputations has not caused serious harm to the reputation of the pursuer
All you need to do now is identify ‘the sting’ of the statement: the thing that will cause the pursuer serious harm
Section 8
(1) It is a defence to defamation proceedings for the defender to showthat—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest, and
(b) the defender reasonably believed that publishing the statement complained of was in the public interest.
Honest Opinion (replaces Fair Comment)
Section 7
(1) Subject to subsections (5) and (6), it is a defence to defamation proceedings for the defender to show that the conditions in subsections (2) to (4) are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement indicated, either in general or specific terms, the evidence on which it was based.
(4) The third condition is that an honest person could have held the opinion conveyed by the statement on the basisof any part of that evidence.
(5) The defence fails if the pursuer shows that the defender did not genuinely hold the opinion conveyed by thestatement.
Rixa?
Saying something under the heat of the moment. Not really reliable anymore as dafamation requires a third party
