All Cases Sem 1 Flashcards
Lee v. Ashers baking company [2018] UKSC 49
- C wanted a cake with ‘support gay marriage frosted in icing; D refused due to religious beliefs
‘It is, of course, the case that businesses offering services to the public are not entitled to discriminate on certain grounds.
The bakery could not refuse to provide a cake - or any other of their products - to Mr Lee because he was a gay man or because he supported gay marriage.
But that important fact does not amount to a justification for something completely different - obliging them to supply a cake iced with a message with which they profoundly disagreed . In my view they would be entitled to refuse to do that whatever the message conveyed by the icing on the cake - support for living in sin, support for a particular political party, support for a particular religious denomination. The fact that this particular message had to do with sexual orientation is irrelevant… [the legislation] should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so ‘ (per Lady Hale, paras 55 and 56)’
Masterpiece cake shop V. Colorado civil rights commission 584 (us) 2018
. Same-sex couple requested a wedding cake from
C, who refused on religious grounds; D served a notice of discrimination upon C
• Gay marriage illegal in Colorado at the time
(2012)
• D had previously upheld contrary cases
• SC - evidence of bias by D; failure to act neutrally and consistently (upheld 7:2)
‘Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are
“weddings and suggest that they should be celebrated-the precise message he believes his faith forbids… States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified’
(Opinion of Thomas J., 8 & 12)
Handyside v.uk [1976] 1 EHRR 5
• H published translation of a Danish YA book, which included chapters on sex, alcohol and tobacco; convicted of obscenity
• ‘Necessary’ implies a ‘pressing social need’
• The State has a limited ‘margin of appreciation’ Freedom of expression is an essential foundation of a democratic society
• This freedom includes information and ideas that may shock or offend
• Any interference must be proportionate to the State’s legitimate aim
Manson v. Tussauds [1894] 1 QB 671
Monsonv. Tussauds [1894] 1 QB 671: ‘libels are generally in writing …but this is not necessary; the defamatory matter may be conveyed in some other permanent form’ ( per Lopes LJ)
Turley v. Unite the union [2019] EWHC 3547 (QB)
Individual political can claim - but rarely do so
Derbyshire county council V. Times newspaper [1993] AC 534
Government & public bodies cannot bring an action
‘It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism’ ( per Lord Keith)
First Amendment Approach: New York Times
v. Sullivan 376 US 254 (1964)
• 1960 advertisement in NYT highly critical of Alabama police and their treatment of civil rights protestors
• Some factual inaccuracies in the copy - Police Commissioner sued
• Won large damages at State level, Supreme Court unanimously reversed the decision
• Public officials must be held to a higher standard, and defence of truth insufficient
‘The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” - that is, with knowledge that it was false or with reckless disregard of whether it was false or not’ (per Brennan J., at 279-80)
Parmiterv. Coupland [1840] 6 M & W 105
‘A publication, without justification or lawful excuse, which is calculated to injure the reputation of another. by exposing him to hatred, contempt, or ridicule’ (per Parke B.)
Simv. Stretch [19361 2 AII ER 1237
‘Judges and text-book writers alike have found difficulty in defining with precision the word
“defamatory”. The conventional phrase expo sing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person, or class of persons, whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose, in the present case, the test: Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” (per
Lord Atken)
Right thinking people
•Tolley v. Fry[1930] 1 KB 467; Gillick V. BBC [1996] EMLR 267)
• US approach: Peckv. Tribune Co. 214 US 185 (1909)
•Doesn’t apply to specific communities: hypothetical person with reasonable views for the time ( Tolleyv.
Fry[1930] 1 KB 467; Gillick V. BBC [1996] EMLR 267)
Berkoff v. Burchill
[1996] 4 AII ER 1008
• Newspaper columnist referred to an actor as
‘notoriously hideous-looking’ and Frankenstein’s monster was slightly better-looking’
•CA-2:1, the words were defamatory and could impact on Berkoff’s career
• Millett LJ: words were intended to ridicule, but did not lower him in the estimation of right-thinking people
• Unlikely to succeed post-2013
Jameel v. Dow jones [2005] EWCA civ 75
A ‘real &substantial tort’ must have occurred, taking into account article 10
J had a valid claim, but low circulation of outlet
In uk made the action cost - prohibitive
Thornton. Telegraph 20101 EWHC 1414
‘whatever definition of “defamatorv” is adopted. it must include a gualification or threshold of seriousness’ (perPhillips MB)
- weeding out of weaker claims
Slim V daily telegraph Ltd [1968] 2QB 157
‘Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adiudicators at the trial thinks is the one and only meaning that the readers as reasonable men should have collectivelv understood the words to bear. That is “the natural and ordinary meaning” of words in an action for libel ‘ per Lord Diplock)
Jeynes v. News magazines Ltd [2008] EWCA civ 130
• Big brother contestant said over phrase “BB’s lisa-the geezer” which she believed implied that she was transsexual
• not considered credible on either the “natural & ordinary meaning” or a prospective innuendo meaning
• notion of ‘natural & ordinary meaning’ summarised in eight key issues
• note: a although this is pre -2013 act it still remains highly influential
Koutsogiannis v. Random House [2019] EWHC 48(QB)
• Kobjected to a book alleging manipulation of financial markets
• CA revisited the key principles to determine the natural and ordinary meaning a reasonable reader would ascribe to the statement
(i) Governing principle is reasonableness.
(ii) Publisher’s intention is irrelevant.
(ili) A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal.
But always to adopt the less derogatory meaning would also be unreasonable: it would be naive.
(iv) the court will avoid over-elaborate analysis and too literal an approach.
(v) Judge should not conduct too detailed an analysis of various passages in their written reasons.
(vi) Reject any meaning produced by a strained, or forced, or utterly unreasonable interpretation
(vii) it is not enough to say that by some person or another the words might be understood in a defamatory sense
(viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together - the context can give the statement a stronger or weaker defamatory meaning
(ix) the context in which the statement appeared and the mode of publication is also important
(x) no evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning
(xi) The HRR is taken to be representative of those who would read the publication in question. The court should beware of reliance on impressionistic assessments of the characteristics of a publication’s readership
(xi) the judge has regard to the impression the article has made upon them in considering the meaning to the HRR
(xi) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties, although cannot find a meaning that is more injurious than C’s claim
Charleston v. News group newspapers Ltd [1995] 2 AC 65
→ article clarified that c’s image was crude deepfake pronography
Clickbait: spicer v. Commissioner or police of the metropolis (2019) EWHC 1439
A headline can create a libel. even if the text contains none…
That is especially so. when one bears in mind the (reasonable) tendency of ordinary readers to give weight to that which is most prominent, and most negative. But there are cases in which the text neutralises what would otherwise be a libel in the headline - the headline being the poison, to which the body of the article provides the antidote’ (per Warby J.)
Social media readers: stocker v. Stocker [2019] UKSC 17
• Facebook spat between S and her ex-husband’s new partner
• S claimed that ‘he tried to strangle me’
• HC - Mitting J. applied dictionary definition of strangulation, which provided two highly prejudicial interpretations; natural and ordinary meaning was an attempt to kill S
• CA - upheld defamatory meaning of the words
• SC - use of a dictionary definition was an unrealistic consideration of how a hypothetical Facebook reader would view the words in the post
‘All of this, of course, emphasises that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this highlights the court’s duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post … Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post … Such a reader does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance. Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her’ (per Lord Kerr)
Social media readers: Blake v. Fox [2023] EWCA civ 1000
• F attacked a series of tweets by Sainsburys promoting black history month
• B and two others responded to F’s tweets stating he was a racist
• F quote-tweeted in response substituting ‘racist’ for
‘paedophile’
• Rare application for jury trial; F alleged that the case would have to define ‘racism’ and that a judge would exhibit involuntary bias
• No evidence of ‘enhanced impartiality’ of jury or that F would be less vindicated by a judge-only decision
• HC - natural and ordinary meaning was that initial tweets were expressions of opinion, but F’s responses were allegations of sexual interest in children
• Calling B a ‘paedophile’ is not ‘mere abuse’
• Two allegations of pedophilia were defamatory; third was mimicry substituting ‘racist for ‘pedophile’ and the natural and ordinary meaning was a rhetorical rebuttal, not an allegation
there is a distinction to be drawn between the characteristics of the medium and those of the readership. It does not follow from the fact that tweets are generally read swiftly that their readers are careless, superficial or unsophisticated
Account should also be taken of the nature of the particular message. Tweets vary in their length and form. Not all are concise and conversational. A body of extraneous text can be included in a screen shot. And it is well-known that some information is posted on Twitter via threads, composed of multiple individual posts, which can be serious contributions to knowledge about topics of political or social importance … Those were short and pithy tweets of between three and six words. They followed swiftly after the tweets to which they responded. They do not give the appearance of being carefully considered or crafted. They are straightforward assertions. The one striking word was
“pedophile”. The reader trying to understand w hat Mr Fox was getting at was given very little else to work with ‘ (per Warby LJ)
McAlpine v. Bercow (2013) EWHC 1342
• C a former politician; D a political spouse with 56,000 Twitter followers
• Allegations of sexual abuse by an unnamed former politician - C swiftly exonerated
• ‘Why is Lord McAlpine trending? * Innocent face*
‘In my judgment the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question’ ( per
Tugendhat J.)
Vardy v. Rooney - chase meaning
• C: ‘the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house’ (i.e.
Level 1)
• D: ‘there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant’s private Instagram posts and stories to The Sun newspaper’ (i.e. Level 2)
• Judge considered meaning to be closer to that argued by
C (Level 1) - D had to amend defence to Truth
Banks v. Cadwalladr
”Congrats, Alberto. And well done, Italy. This is how a relatively well functioning country should respond. Case is mirror image of Arron Banks + Russians. The total apathy/indifference to that here continues to shock & disturb.
@Alberto Nardelli”
BREAKING: Milan’s public prosecutor has opened an investigation into Lega and Russia after Buzzeed News released a tape of the Moscow meeting involving a close Salvini aide.
•D argued this was her opinion, but Saini I concluded the meaning was factual -
•the imputation was based on the ‘mirror image’ comparison, not merely an opinion, but she was drawing a close parallel between the two situations.
• The single meaning found by the court was that C should be investigated for similar links to Russia as the Italian case
Morgan v. Associated newspapers [2018] EWHC 1725 QB
A defamatory opinion is still capable of causing harm to reputation - otherwise no need for a separate defences for truth and honest opinion under the 2013 Act.
Factors relevant to the court’s assessment of serious harm in opinion cases:
- The gravity of the defamatory meaning;
- The gravity of the opinion or criticism expressed of the claimant;
- Context and presentation, including whether the criticism is made expressly or by implication;
- Whether the opinion is clearly presented to the reader as such (which ‘may well mitigate its defamatory impact’);
- The source of the opinion expressed: whether she appears authoritative, or someone whose view the reader is likely to discount (a ‘crank’);
- Whether the criticism has been endorsed by the publisher (whether it has ‘put its weight’ behind it)
cases regarding ‘reference to the claimant’
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
group defamation cases:
↳Knupffer v London Express [1944] 1 AC 116
↳Tilbrook v Parr [2012] EWHC 1946
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’
Dyson v Channel 4 [2023] EWCA Civ 884
- 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]
publication cases:
↳Jameel v Dow Jones [2005] EWCA Civ 75
↳ Al Amoudi v Brisard [2007] 1 WLR 113
↳ Webb v Jones [2021] EWHC 1618
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])
A real and substantial tort case:
↳ Sadik v Sadik [2019] EWHC 2717 (QB)
↳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
Cooke & Midland Heart v MGN [2014] EWHC 2831 (QB)
↳ 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)
Theedom v Nourish Training [2015] EWHC 3769
- 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
Key case:
↳Lachaux v Independent Printers [2017] EWCA
↳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
↳Lachaux v Independent Printers [2015] EWHC 2242
‘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.
↳Lachaux v Independent Printers [2017] EWCA Civ 1334
↳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
↳Lachaux v Independent Printers [2019] UKSC 27
↳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
cumulative harm- Sube v. News Group Newspapers [2018] EWHC 1961
↳ 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’
Impact cases:
↳Mardas v. New York Times [2008] EWHC 3135
↳King v Grundon [2012] EWHC 2719
↳Sobrinho v Impresa Publishing SA [2016] EWHC 66
- **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)
Section 2 (3): Depp v. News Group Newspapers Ltd. [2020] EWHC 2911 (QB)
↳ 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)
John C Depp II v. Amber Laura Heard (US litigation)
- 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
Aaronson v. Stones [2023] EWHC 2399
- 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)
Butt v. SS Home Department [2019] EWCA Civ:
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
Zarb-Cousin v. Association of British Bookmalers [2018] EWHC 2240
‘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
Davif v. Hosany [2017] EWHC 2787
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
Alsaifi v. Trinity Mirror [2017] EWHC 1444
- 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])
