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Law and Ethics > Defamation > Flashcards

Defamation Flashcards

1
Q

What does defamation protect against?

A

-Protects against reputation against “unwarranted” attack

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2
Q

What does defamation protect against?

A
  • Protects against reputation against “unwarranted” attack

- Balanced with freedom to report and expression

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3
Q

Is defamation a civil or criminal matter?

A

Civil

  • Heard in High Court
  • Defendants are found LIABLE
  • It’s a tort
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4
Q

What is a tort?

A

A civil wrong for which damages can be awarded- defendants aren’t fined but could be sued

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5
Q

What is libel?

A

Statement or representation is in writing to some other permanent form

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6
Q

What is slander?

A
  • Spoken or implied in gestures

- Temporary and audible

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7
Q

Describe libel

A

Cover anything published
-Ie in writing in newspapers or magazines
-In online publication s eg news sites and blogs
-Via social media eg Fb, Twitter
Almost anyone could be considered a publisher

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8
Q

When is something considered defamatory?

A
  • Causes serious harm to reputation
  • Lowers claimant in estimation of “right thinking people”
  • Injuries in business, trade, profession
  • Causes him to be shunned or avoided
  • Exposes him to hatred, ridicule or contempt
  • Companies must now show substantial financial loss
  • Defamation is about reputation NOT truth- can be defamatory and true
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9
Q

What is inference?

A

A comment with a defamatory secondary meaning which can be understood by all or most people

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10
Q

What is innuendo?

A

Comment with a defamatory hidden meaning which can only be understood by people with special knowledge

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11
Q

What is liability?

A

You don’t have to originate the libel to be sued
_Repeating an allegation is actionable
_So beware of badly worded apologies
-Claimant must sue within 12 months of publication
-Could be sued even if the defamed person is quoted
-A balanced report won’t necessarily help

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12
Q

Who can’t sue?

A
  • Dead people
  • Publicly funded bodies e.g publicly funded bodies, universities
  • Individual officers, councillors etc can
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13
Q

What is the burden of proof when it comes to defamation?

A

Claimant must prove-

  • It’s defamatory
  • It’s understood to refer to him/her- claimant doesn’t have to be named- mistaken ID isn’t a defence
  • Has to be published to a 3rd party
  • Has to be serious harm to reputation
  • Or serious financial loss
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14
Q

What is group defamation?

A
  • When a defamatory allegation is made about someone who is a member of a group
  • And the member isn’t names but is identified only as a member of the group
  • Every member of a group can sue if it can be shown that other people might think the allegation refers to them
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15
Q

What does a claimant have to prove in a defamation case?

A
  • Doesn’t have to prove intention
  • Doesn’t have to prove statement is false
  • Doesn’t have to prove damage
  • Only if it “tends to” discredit
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16
Q

What are the defences of defamation?

A
  • Truth
  • Honset opinion
  • Privilege
  • Innocent dissemination/EU commerce directive
  • Public interest
17
Q

What is the Truth defence under the Defamation Act 2013?

A
  • Balance of probabilities
  • Publisher must prove story is substantially true
  • On the balance of probabilities
  • Publishers sometimes reluctant to defend a case in court
18
Q

What does a successful defence need?

A
  • Reliable witnesses
  • Documentary and/or visual evidence
  • Affidavits (sworn written statements)
  • Avoid implying habitual behaviour (unless you have evidence to back claim)
19
Q

What is absolute privilege?

A

Fair, accurate and contemporaneous (published in a timely manner)

  • Also protects MPs in Parliament
  • Doesn’t protect things said outside court
  • Defamatory comments made in outbursts from public gallery
19
Q

What is qualified privilege?

A

Fair, accurate, no malice and in public interest

  • Covers court reports which aren’t contemporaneous
  • Official meetings- council, gov, police press conferences
  • Press conferences held anywhere in the world
  • Contents of police and other official statements
  • Public meetings
  • Documents distributed at meetings are “taken as read”
20
Q

What else does qualified privilege cover?

A
  • Only covers things said or documents distributed in most public meetings
  • Anything said outside isn’t covered by QP
  • But covers documents sent by official bodies
  • Meetings and documents covered by Part 2 of Schedule 1 of the 1996 Act
21
Q

What is the honest pinion defence?

A
  • Honest opinion in good faith without malice
  • For articles recognised as opinion or reviews
  • Comment used on provable/privileged fact
  • Facts alluded to in the piece
  • No improper motives
  • Defamation Act 2013
22
Q

What is the innocent dissemination defence?

A
  • Defence applied if publisher establishes it wasn’t the author, editor or publisher of the defamatory material (e.g comments on internet pages)
  • Didn’t know it had contributed to defamatory material
  • That it took reasonable acre regarding a publication (e.g removed comment when made aware of it)
  • Not pre-moderating the site makes the defence more likely to succeed
23
Q

What is the EU commerce directive Reg 19?

A
  • Protects website operators
  • Not liable for posts which breach any statute
  • If not moderated
  • And post removed when brought to the attention of operator
24
Q

What is the public interest defence?

A
  • Must be able to show the defamatory statement was on a matter of public interest or formed part of a statement
  • AND the defendant reasonably believed that publishing the statement complained of was in the public interest
  • Sec 4 of Defamation Act 2013
25
Q

What is the leave and licence defence?

A

Claimant has previously agreed to that the defamatory material can be published

26
Q

What is the accord and satisfaction defence?

A

Matter already disposed of by way of correction or apology or payment which the claimant has accepted as payment

27
Q

Can something be defamatory if the person the words are about is dead?

A

No

Law and Ethics (8 decks)

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