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Defamation > Defamation 1 > Flashcards

Defamation 1 Flashcards

1
Q

How is legal action initiated in criminal law?

A

State (Attorney General’s Chambers or public prosecutor) prosecutes Defendant

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2
Q

How is legal action initiated in civil law?

A

Injured party (Plaintiff) sues another (Defendant)

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3
Q

What are the penalties for criminal law?

A
  • Fine (paid to state)
  • Prison
  • Death
  • Caning (only men can be canned, cannot be above 50)
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4
Q

What are the penalties for civil law?

A
  • Monetary damages
    (paid to P) OR
  • Court order
    (ie. injunction – order not to do something)
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5
Q

What are examples of criminal law?

A

Crimes against

  • Person (murder, assault)
  • Property (theft, vandalism)
  • Morality (obscenity)
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6
Q

What are examples of civil law?

A
  • Tort Law: wrongful acts
    (eg. defamation, negligence)
  • Contract Law:
    (eg. breaking contract)
  • Property Law:
    (eg. estates)
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7
Q

What are statues?

A
  • (def.) Laws passed by legislature (lawmaking body – In SG –> Parliament)
  • All freely available in SG Statutes Online  divided into different sections
  • Eg. Penal Code, Internal Security Act, Copyright Act, most of SG’s criminal law
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8
Q

What is common law?

A
  • (def.) A whole set of published opinions in decided cases & principles in those cases (precedent cases)
  • -> (def.) Precedent: a judicial decision that should be followed by a judge when deciding a later similar case
  • Made by courts (judges, also known as justices)
  • -> Court can be used for multiple judges to decide OR one judge only
  • Sometimes used to help interpret, apply statutes
  • SG has its own common law & draws on English common law if SG law is not well developed.
  • -> If English courts are not well developed, SG examines common law courts of other nation that were former British colonies.
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9
Q

What is the concept of stare decicis?

A
  • Latin: stand by what’s decided (court normally follows precedent)
  • “adhere to precedent in order to insure certainty, consistency, and stability in the administration of justice”
  • Court can depart from precedent if:
    1) There are compelling reasons to do so
    2) They can only avoid an injustice by departing from precedent
  • Areas of law have different mixes of statutory & common law
    (eg. defamation is mostly common law, but SG’s Defamation Act supplements it)
    (more info - pg 4)
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10
Q

What is requried for defamation sting?

A
  • Plaintiff has burden of proving elements of the “cause of action”:
  • Defamatory sting
  • Identification of P
  • Publication
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11
Q

If P wins, court may order D to:

A
  1. Pay damages to P
    • -> To compensate P
    • -> As punishment
  2. Remove or stop spreading defamation
    • -> Through an injunction, a court order to D
  3. Pay P’s legal costs
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12
Q

What are the elements of defamation sting?

A
  • Tends to lower another’s reputation, or makes others shun (avoid) him
  • Exposes to hatred, contempt, ridicule – causes loss of good will and confidence
  • Objective – not subjective – test for sting: (reasonable test)
  • -> To ordinary, reasonable, right-thinking person in audience
  • -> Don’t need majority to find it defamatory. Only need 1 person beside plaintiff will suffice.
  • -> Doesn’t depend only on P’s interpretation
  • D’s intent to defame not required
  • Defamation sting may be indirect
  • Court read between the lines
  • Defamation sting not just based on literal meaning but also
  • -> implication, context, slang, comparisons, innuendo – or extrinsic facts (not a meaning contained in the word itself) not in the text but known to some in the audience
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13
Q

What are the elements of Identification?

A
  • Any identifiable characteristics sufficient for identification of P
  • -> Name, photo/illustration, description
  • “Whether defamatory materials might be understood by reasonable people to refer to “ P
  • Not necessary for majority to identify P
  • Eg. Social media: by not naming the person does not immunise them from liability, if reasonable person who can figure out who the person being posted is
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14
Q

What are the elements of Publication?

A
  • Communication to at least one other person (3rd person) beside the person it’s about
  • Can be spoken or through any medium / no medium at all
  • Libel: Recorded (written, stored; includes broadcast)
  • -> No need to prove damages to P’s reputation
  • -> No damages might have occurred but it is stored and damages may occur in the future
  • Slander: Spoken
  • -> P must prove monetary damages (“special damage rule”) as it might not have any effect on a person’s reputation
  • -> Exception: no need to prove monetary damage if D’s words allege as they are serious cases:
    1. Criminality
    2. Loathsome, contagious disease (eg. tuberculosis)
    3. Unfit for business, profession, trade, office
    4. Female is unchaste (men alleged unchaste not taken as seriously)
  • “Meet special exception to the special damages rule.”
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15
Q

What are the defamation defendant’s options?

A
  1. Justification (truth)
  2. Fair comment (opinion)
  3. Privilege
  4. Unintentional defamation
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16
Q

Besides presenting defences at trial, what can a defendant choose?

A
  1. Settlement
  2. Apology
  3. Grant a reply
17
Q

What is a settlement?

A
  • (def.) Agreement to call of litigation, sometimes in exchange for money/apology
  • Common
18
Q

Who do defendants choose to settle?

A
  • Why Settle?
    –> D see they may not win case
    –> D see it is not worth the cost of defending the suit
    (litigation stamina: financially/working with lawyers/sitting in court all days)
19
Q

What is an apology?

A
  • Used:
  • -> In settlements
  • -> To mitigate damages
  • -> In unintentional defamation defence
  • Apology made publicly
  • Often used in libel litigation in different ways)
20
Q

What is ‘grant a reply’?

A
  • D may choose to publish P’s reply in the same venue

- Eg. D let P tell her side of the story

21
Q

What is the truth defence?

A
  • Applies to true material
  • -> D must prove the statement to the court, based on evidence (eg. records, memories of credible witnesses who testify)
  • -> Doesn’t help to add “rumour is”, “allegedly”
  • “Absolute” defence
  • -> Defence stands even if D has malice
  • -> Not conditional/fulfilling a criteria that words are not said out of malice
  • Defence applies if minor details inaccurate
    (ie. D stole $25k actually stole $24k, defence stands)
  • -> Sometimes called substantial justification
22
Q

What is the fair comment defence?

A

Fair:

  • Could D honestly hold opinion based on the evidence?
  • -> Can be exaggerated, prejudiced, unreasonable minority opinion
  • -> If evidence that D motivated by malice (spire toward P), not fair
  • -> Must be factual basis (opinion based on facts)

Comment:

  • -> Not a factual statement that can be proved true or false
  • -> On matters of some legitimate public interest
23
Q

What is the privilege defence?

A
  • Defence against defamation actions in certain situations
  • -> Needed for candour (freedom of speech outweighs the need to protect reputation)
  • If you have privilege, actions for defamation against you will fail
24
Q

What does it mean to have privilege in parliament?

A

Proceedings in Parliament privileged

(ie. MP speak on Parliament floor, confident she won’t be sued for libel)
- For participants, even if communicate with malice
- Exception: if privilege is abused, it can be lifted (ie. MP goes on a tirade - rare)

Reports on Parliament privileged

  • Lose privilege if malicious
  • Reports must be fair and accurate
  • SG Waiver case (pg.16)
25
Q

What does it mean to have privilege in judicial proceedings?

A

Courtroom proceedings privileged
- No defamation liability for participants - Judges, lawyers, P, D, witness – even if communicate with malice

Reports on courts proceeds privileged

  • If fair and accurate
  • Report without malice
26
Q

How to lose privilege in court proceedings?

A
  1. Report only one side (P, not D)

2. Report maliciously

27
Q

What’s the privilege for media in the courtroom?

A
  • Licensed newspapers & broadcasters have privilege:
  • fair and accurate reports
  • made without malice of some official matters

Official matters:

  • Findings, decisions of professional or industry associations
  • Proceedings of international organisations, public meetings, corporate shareholder meetings, foreign courts
  • Gov. notices
28
Q

When are there privileges in other circumstances?

A

When:

  • D has a duty (legal, moral, social, business) to communicate content AND
  • Intended recipient has an interest (a stake) in receiving it AND
  • D lacks malice (& believes the content is true)
29
Q

What does it mean if there is no blanket privilege for media?

A
  • Mass media argue they should have blanket privilege for all reporting news:
  • -> have duty to report news
  • -> audience has an interest in receiving it
  • Courts and legislatures only recognise privilege for mass media in limited circumstances
  • England has public interest defence
30
Q

Is niche media more likely to get privilege?

A

Niche media have more success that mass media in arguing the duty/interest test is met.

Defamation (2 decks)

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