All Cases Sem 1 Flashcards

Question

cases regarding 'reference to the claimant'

Answer 1

**classic test: morgan v odhams press [1971] 1 WLR 1239** ↳ Allegation of organised crime kidnapping in The sun; victim was staying with C at the time - innuendo meaning C was part of the gang ↳ Test is whether HRR would believe the words referred to C **An objective test: intention is irrelevant- Hulton and Co v Jones [1910]** ↳**Newstead v London Express newspapers [1940] 1 KB 377" 'if the words used when read in the light of the relevant circumstances are understood by reasonable persons to refer to him they do for all relevant purposes. their meaning cannot be affected by the recklessness or honesty of the writer unnecessary to list precisely who would recognize C: **Lachaux v Independent Print** ↳Film disclaimers: 'Any similarity to actual persons, living or dead, or actual events, is purely coincidental - see Yousoupoff ↳ O'shea v MGN [2001] EWHC QB 425- strict liability rule is a disproportionate and unjustifiable restriction on Article 10 rights

Answer 2

**Knupffer v London Express [1944] 1 AC 116** ↳If the 'language uses in reference to [the] limited class may be reasonably understood to refer every member of the class,...every member may have cause of action' **Tilbrook v Parr [2012] EWHC 1946** ↳Applied Jeynes approach ↳'There is a risk that discussion of matters if public concern may be inhibited if the law is too ready to hold that an individual is identified by an attack on a group in which the individual is identified by an attack on a group in which the individual is not named'

Answer 3

* D alleged abuses of workers' right in factories in Malaysia operated by supply company; C claimed that this implicitly referred to Dyson * HC - no application to either Dyson personally or to his companies * CS - HRR would identify the Dyson companies as complicity as an 'iconic British brand' * incorrect to state that the statement did not refer to Dyson because it had not been named in the report trial Judge ‘reasoned that in order to show that they were the companies in question the claimants would have to plead and prove a case of extrinsic reference or innuendo,showing that as a matter of fact they (alone or with others) undertook or were responsible for oversight of the contractual relationship with ATA and had responsibility for PR and the response to the allegations. There are several problems with this approach. The first is that this approach pays no attention to the words used in the broadcast of "iconic British company". The second is that fails to take account of the fact that a hypothetical viewer acquainted with Dyson Technology Limited and Dyson Limited would know the matters set out in paragraph 2 of the Particulars of Claim. Thirdly, as it seems to us, the judge's analysis was unduly refined. The broadcast gave the ordinary viewer acquainted with the claimants no good reason to think that the corporate failings described in the programme were the responsibility of some Dyson group company other than the "British" company to which frequent reference was made’ (per Dingemans LJ and Warby LJ, [52]

Answer 4

**Jameel v Dow Jones [2005] EWCA Civ 75** ↳In principle, even if only a handful of people have read the publication, an action might succeed - but must be a 'real and substantial tort' **Al Amoudi v Brisard [2007] 1 WLR 113** ↳Substantial means 'sufficient readers of the publication to justify judgement' **Webb v Jones [2021] EWHC 1618** ↳The fact that a statement is visible on the internet is not enough to establish substantial publication ...I would add that, in the light of the common experience of Facebook browsings summarised in Stocker v Stocker, it is also not enough that someone has read it. If the reading is so rapid and superficial as to leave no impression or no more than a fleeting impression which is of no consequence, it is just as much an abuse of process, on the principles applied in Jameel, to base a defamation claim on that reader as if there had been no reader at all (per Tugendhat J., [47-48])

Answer 5

↳Messages on a family WhatsApp group - 43 members ↳D attempted to have the claim struck out as a Jameel abuse of process ↳the budgeted court costs were far in excess of likely damages ↳'Not an unusual feature of defamation litigation' ↳C would receive a measure of vindication through a public judgment in his favour ↳Claim not struck out

Answer 6

↳ First Judicial interpretation of the meaning of 'serious harm' ↳Channel 4 show 'Benefits Street' a prominent series showing inhabitants of a street in Birmingham ↳MGN ran a story about how land lords profiteering from poorly maintained rental properties on the street, including a major Tory donor ↳Story noted 3 other homes owned by MG, of which C was chief executive and noted her large salary and place of residence ↳Claimants used alleging a HRR would consider them to be slum landlords NB: MH is a non-profit organisation, so could **not** sue under S1 (2)

Answer 7

* Prejudicial e-mails sent to prospective customers of C ‘A factor of considerable importance is likely to be the circumstances of the particular claimant, since it is the seriousness of the injury to his or her reputation that hasto be taken into account. **Put another way, the question is not whether the case is a serious one by comparison with other libel actions that might occur; the question is whether it is a serious matter for this individual claimant,so far as the actual harm to his reputation is concerned’** (per Moloney J., [28]) * Not desirable for parties to conduct extensive cross-examination and evidential proceedings at the preliminary stage, due to duplication of court work and spiralling costs

Answer 8

↳Mr L a French national, resident in UAE. ↳A crimonious divorce in Dubai ↳Several UK media outlets published stories about Mrs L’s claims of injustice in the UAE courts and of domestic abuse ↳Drawn to L’s attention who brought an action for defamation ↳High Court; Court of Appeal;Supreme Court: reviewed ‘serious harm’ under the 2013 Act

Answer 9

‘In my judgment this approach leads to the clear conclusion that in enacting s 1(1) Parliament **intended to do more than just raise the threshold for defamation from a tendency to cause 'substantial' to 'serious' reputational harm**. The intention was that claimants **should have to go beyond showing a tendency to harm reputation.** It is now necessary to prove **as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of ... ** One main difference in practice may well be that a claim will **no longer succeed where the meaning is a serious one but the claimant's reputation in the eyes of those who read the words complained of is not in fact harmed seriously, if at all.**

Answer 10

↳Appeal by publishers dismissed ↳CA – serious harm can be proved by **inference** through the seriousness of the meaning; evidence not always necessary ↳There was clear inference of serious harm to C by being accused of criminal acts ↳Disagreed with Warby J on interpretation of effect of s 1 on the common law ↳ ‘In the circumstances I consider that, to the extent that it may matter, the words “is likely to cause” as used in s.1(1) **are to be taken as connoting a tendency to cause’** (per DavisLJ., [50]) ↳‘I do not accept that the words “is likely to cause” necessarily require **it to be proved that it is more probable than not that serious harm will be caused’** (per Davis LJ., [68]) ↳Seemingly a softer standard by which to demonstrate serious harm ↳ Agreed that serious harm was demonstrated

Answer 11

↳Preferred approach of Warby J. in HC; CA approach too lenient ↳ Parliament had expressly changed the law to raise the bar for defamation actions ↳Pre-2013 situation that an ‘inherent tendency’ of defamatory words to cause harm has been amended: harm was presumed if the words were found to be defamatory ↳ Post-2013 - C must demonstrate that serious harm has actually occurred as a result of the defamatory statement; harm no longer presumed ↳Section 1(1) has to be viewed in conjunction with section 1(2) – evidence of how the libel has caused serious harm must be brought;strengthens interpretation that the law has materially changed

Answer 12

↳ A series of 22 articles in different publications about the two claimants – some met s1 threshold individually, but C argued the accumulation of words created serious harm against all Ds ↳‘But in general, for the purposes of assessing defamatory impact,a published article must be considered individually; it will not normally be appropriate or even possible to treat a number of articles as a single "statement" for the purpose of s 1, any more than it was at common law. It may, depending on the circumstances, be appropriate to take account of one or more previous articles as part of the context in which a given statement was published. But it is hard to see how the defamatory impact of one publication could be affected by the defamatory impact of a seperate, later publication'

Answer 13

* **Mardas v. New York Times [2008] EWHC 3135 ↳'what matters is whether there has been a real and substantial tort within the jurisdiction.. **This cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case**' * **King v Grudon [2012] EWHC 2719 ↳It needs only one well-directed arrow to it the bulls eye of reputation in certain circumstances * **Sobrinho v Impresa Publishing SA [2016] EWHC 66 ↳'Mass media publications pf very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary. This does not mean that the issue of serious harm is a "numbers game". **Reported cases have shown that very serious harm to a reputation can be caused by the publication of a defamatory statement t one person'** ↳ C unable to adduce evidence of serious harm in England and Wales (although court noted that influential people could have been among the small number of those who has read the statement)

Answer 14

↳ C accused of multiple allegations of domestic abuse in an article describing him as a 'wife-beater' ↳ D brought evidence of 14 seperate incidents of violent conduct to demonstrate substanial truth ↳ Amber Heard considered to be a highly credible witness ↳ D able to demonstrate truth of 12 of 14 incidents ↳ Section 2(3) applied - D proved substantial truth of the allegations; failing to prove truth in the remaining two incidents did not result in serious harm to Depp (demonstrated multiple incidences of DV)

Answer 15

* US case brought against Heard as author of an op-ed in theWashington Post * In US defamation law, C has to prove ‘actual malice’ on thepart of D (New York Times v. Sullivan) * Either D knew her statements were untrue * Or had reckless disregard for whether they were true * In English law, the writer’s intentions are irrelevant * England & Wales: High Court judge evaluation of evidenceleads to the decision * US - jury reaches the decision (directed by judge on the law) * Huge compensation and punitive damages awarded to Depp

Answer 16

* C a pornographic entrepreneur operating ‘Just For Fans’ platform * D a former adult performer who complained about racist andabusive messages on JFF * C investigated but found no case to answer – led to a Twitter war * D quote-tweeted and tweeted allegations of multiple rape by C,using #metoo * Allegations considered to meet Chase Level 2 and clear evidenceof serious harm through financial losses * Serial rape allegation considered to be one of the most seriousallegations; amplified by insinuation that C had abused a trustedposition within the adult industry * Proof of one incident is insufficient to prove allegations ofmultiple incidents : *Wakley v. Cooke* [1849] 4 Ex 511 (libelist journalist)

Answer 17

*Butt v. SS Home Department [2019] EWCA Civ: ‘* The ultimatedeterminant then is how the statement would strike theordinary reasonable reader ... that is, whether the statement isdiscernably comment (to such a reader)’ (per Sharp LJ [39]) * Broad interpretation: government press release was acomment * Case settled in 2021 with large damages, as his name waserroneously printed in the press releas

Answer 18

‘I think that some caution must be applied before overly prescriptive rules are adopted as to the assessment of factor opinion ...There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact. The real question is whether, in context, the allegation of dishonesty would be understood to be the deduction or inference of the speaker. **In most cases, it willbe the context in which the words appear or are spoken that will provide the answer to whether the words are (or would be understood to be) opinion or whether thestatement is 'bare comment' and therefore potentially liable to be treated as an allegation of fact**. Asking aquestion of whether the statement is “verifiable” is perhaps a dangerous gloss on this approach’ (per Nicklin J., [26] * Series of subsequent cases involving allegations of dishonesty have been seen as nuanced opinions, rather than ‘bare comments

Answer 19

One of the most commonly used defences is that of common-law qualified privilege. **This focuses not so much on the content of the words complained as on the occasion on which they were published.** Were the circumstances such that the **publisher had a legal, social or moral duty or interest to make the publication, and the publishee a corresponding duty orinterest to receive it? **If so, the publication took place on an occasion of qualified privilege, the qualification being that the publisher must not be actuated by **express malice.** But unless the claimant can prove such malice, the defendant will have a** complete defence’** (per Moloney HHJ, [4.3]) * *Horrocks v Lowe [1975] AC 135:* malice is an absenceof honest belief in the statement, or making it for animproper purpose

Answer 20

* Allegation of sexual misconduct between teacher andstudent * Found partially responsible and banned from teaching– successfully appealed against the banning order butconcerned about reporting by local newspaper * Fair and accurate report of the proceedings andcovered by QP * Newspaper published and hyperlinked follow-up story about appeal: not malicious ‘The test is notoriously hard to satisfy in practice. **When proved this is usually by establishing the defendant's knowledge of or reckless indifference as to falsity ...** It is avery rare case in which a claimant can show even apleadable case that a newspaper acted maliciously in publishing an otherwise privileged report’ (per Warby J.,[86])