Articles Flashcards
Article 6 ECHR
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or pa rt of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Article 8 ECHR
(1) Everyone has the right to respect for his private and family life, his home and his correspondence. ( protects you from the state looking into your things eg. your mail but doesnt protect you from the press violating your rights.)
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Artice 10 ECHR
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Section 12 HRA
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed..
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material). to
(a) the extent to which-
(i) the material has, or is about to, become available to the public; or
(ji)It is. or would be. in the public interest for the material to be published;
(b) any relevant privacy code
Serious Harm: Section 1 Defamation Act 2013
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant
(2) For the purpose of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss
‘The section builds on the consideration given by the courtsin a series of cases to the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd in which a decision ofthe House of Lords in Sim v Stretch was identified asauthority for the existence of a “threshold of seriousness” in what is defamatory. There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel vDow Jones & Co it was established that there needs to be areal and substantial tort. The section raises the bar for bringing a claim so that only cases involving serious harm to the claimant’s reputation can be brought’: ExplanatoryNotes to the Act
- Series of cases have addressed meaning of ‘serious
Legal persons: Section 1 (2) Defamation Act
↳A body that trades for profit must show serious financial loss, not just reputational harm
↳Likely to now involve review websites: Burki v. Seventy/Thirty Ltd [2018] EWHC 2151
↳ C sued for deceit and misrepresentation by a dating website
↳D counter-sued over 2 scathing Google reviews by C, available online for 4 months (one ruled truthful, one ruled defamatory)
↳ ‘The loss of even one client and his fees would have been a serious financial loss to a company the size of 70/30’
↳Serious harm and defamation, but damages reduced to 5000 pounds due to D’s conduct
Limitation period of one year: ↳Section 4A limitation Act 1980
↳Section 28 limitation act 1980
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Section 4A Limitation ACT 1980
↳’An action for defamation shall not be brought after the expiry of one year from the date on which the cause of action accrued (date of publication) -
Section 28 Limitation Act 1980- process to extend the limitation period but very rare
↳ A separate cause of action accrues for each individual publication of a libel, which is then subject to its own limitation period: Duke of Brunswick v. Harmer [1849] 14 QV 185
↳A statement being republished by the author may lead to a new claim if the 12 months limitation period starts again
Section 2 of the Defamation Act 2013
- It is a defence to an action for defamation for the defendant to show that the imoutation conveyed by the statement complained of is substantially true
- Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations
- If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are not shown to be substantialy true do not seriously harm the claimant’s reputation
- The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed
honest opinion
Section 3 Defamation Act 2013
- It is a defence to an action for defamation for thedefendant to show that the following conditions are met.
- The first condition is that the statement complained of was a statement of opinion.
- The second condition is that the statement complainedof indicated, whether in general or specific terms, the basis of the opinion.
- The third condition is that an honest person could haveheld the opinion on the basis of—
(a) any fact which existed at the time the statementcomplained of was published;
(b) anything asserted to be a fact in a privilegedstatement published before the statementcomplained of - The defence is defeated if the claimant shows that the defendant did not hold the opinion.
- Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated ifthe claimant shows that the defendant knew or ought to haveknown that the author did not hold the opinion.
- For the purposes of subsection (4)(b) a statement is a “privilegedstatement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—
(a) a defence under section 4 (publication on matter of public interest);(b) a defence under section 6 (peer-reviewed statement in scientific or academic journal);
(c) a defence under section 14 of the Defamation Act1996 (reports of court proceedings protected by absolute privilege);
(d) a defence under section 15 of that Act (other reportsprotected by qualified privilege). - The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed
