Defamation Flashcards
What does defamation protect against?
-Protects against reputation against “unwarranted” attack
What does defamation protect against?
- Protects against reputation against “unwarranted” attack
- Balanced with freedom to report and expression
Is defamation a civil or criminal matter?
Civil
- Heard in High Court
- Defendants are found LIABLE
- It’s a tort
What is a tort?
A civil wrong for which damages can be awarded- defendants aren’t fined but could be sued
What is libel?
Statement or representation is in writing to some other permanent form
What is slander?
- Spoken or implied in gestures
- Temporary and audible
Describe libel
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
When is something considered defamatory?
- 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
What is inference?
A comment with a defamatory secondary meaning which can be understood by all or most people
What is innuendo?
Comment with a defamatory hidden meaning which can only be understood by people with special knowledge
What is liability?
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
Who can’t sue?
- Dead people
- Publicly funded bodies e.g publicly funded bodies, universities
- Individual officers, councillors etc can
What is the burden of proof when it comes to defamation?
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
What is group defamation?
- 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
What does a claimant have to prove in a defamation case?
- 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
What are the defences of defamation?
- Truth
- Honset opinion
- Privilege
- Innocent dissemination/EU commerce directive
- Public interest
What is the Truth defence under the Defamation Act 2013?
- Balance of probabilities
- Publisher must prove story is substantially true
- On the balance of probabilities
- Publishers sometimes reluctant to defend a case in court
What does a successful defence need?
- Reliable witnesses
- Documentary and/or visual evidence
- Affidavits (sworn written statements)
- Avoid implying habitual behaviour (unless you have evidence to back claim)
What is absolute privilege?
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
What is qualified privilege?
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”
What else does qualified privilege cover?
- 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
What is the honest pinion defence?
- 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
What is the innocent dissemination defence?
- 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
What is the EU commerce directive Reg 19?
- Protects website operators
- Not liable for posts which breach any statute
- If not moderated
- And post removed when brought to the attention of operator
