Defamation Flashcards
What does Defamation protect?
It protects ones reputation
reputation is very important to everyone but particularly those who are in the public eye.
Defamation is an action which acts by lowering the claimant in the estimation of normal right thinking members of society
What is the courts task in a defamation case?
To find the right balance between the freedom of expression against the protection of ones reputation
Who cannot be bring a claim in defamation?
Public authorities cannot bring a claim: Derbyshire v Times Newspapers
This extends to political parties: Goldsmith v Bhoyrul
So Local Authorities, central authorities and political parties cannot make a claim because the public should enjoy free and unfettered commentary on the reputations of these parties as this affects who runs the country etc
Who can bring a claim?
Individuals (normal civilians, celebrities) Corporate bodies (business, corporations)
As a business for the serious harm requirement, you need to show that you would make serious financial loss as a result of demfatorry statement
you cannot sue for mere loss of reputation as a business
What is the key piece of legislation?
Defamation Act 2013
What is required to make a successful claim of defamation?
1) D published a statement
2) this statement has a defamatory meaning
3) The defamatory statement refers specifically to the claimant
+
4) [added by new 2013 act] the defamatory statement must have caused or likely to have caused serious harm to the claimants reputation
What is the first requirement for defamation?
D published a statement
Common law says 2 people must have seen it other than C - but for serious harm requirement this doesn’t seem enough
Sim v Stretch 1936
Telegram case containing defamatory content would have been read by translators – this wouldn’t be enough for the serious harm element
Before 2013 act, every republication of a defamatory statement was a new statement: Duke v Brunswick v Harmer
However this changed with S8 of 2013 act: The Single Publication Rule
So if there’s a republication of an article, you have to refer to date of first ever publication. If its gone beyond 12 month limitation period from that date- then cannot sue
What is the second requirement for defamation?
The statement has to have defamatory meaning
Sim v Stretch [1936] (Telegram case) sets out that the standard for a defamatory meaning is of an objective standard
The question is: Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?
Threshold to meet this is low- even includes if statement has implications of hypocrisy
it doesn’t matter if D meant what they said as long as its defamatory
Byrne v Deane- Byrne in Hell case- someone wrote on wall saying he was snitch C sued. Court said following law and order is not defamatory
Requirement 2: What if the defamatory statement is unclear?
It might be an innuendo. Where an innuendo exists the courts will try and establish the natural and ordinary meaning of the words.
2 types:
Popular innuendo- reader simply needs to read in between line to understand the defamatory statement
Key case: Vardy v Rooney 2022- Rooney implying Vardy was making leaks
legal innuendo- this requires additional info/ context to understand what the statement means
Tolley v Fry- amateur golfer pictures being used on chocolate bars. For amateur golfers to compete, they cannot have ad deals.
What is the third requirement for defamation?
Defamatory statement must refer to C
Key question is: Would a reasonable person understand the statement as referring to the claimant?
If its unintentional ie they have the same names, description then they can still sue: Hulton v Jones; Newstead v London Express Newspaper
If it refers to a class of people, they cannot sue
What is the fourth requirement?
The statement must cause serious harm to the claiamnt
this is set out in section 1 of 2013 act
It has to cause or likely to cause serious harm. if it doesn’t then claim fails
meaning of serious harm explored in Lachaux v Independent Prints- SC said its about the impact of the words and not just about the meaning of the words
It has to be looked at in the context
What can you not claim for?
Absolute privilege
this covers situations where people can speak with complete freedom- ie in court or parliament
Qualified privilege
This only protects people who make defamatory statements who speak honestly without malice
ie reporting events of parliament, court case etc
But if the statement is made with malice, it will not be covered by qualified privilege: Horrocks v Lowe
What are some defences D can rely on?
1) Truth
D can prove that the statement they made was substantially true
Its contained in Section 2
Depp II v NGN
Johnny sued publisher of article saying it was defamatory. While it was defamatory, it was proven that Ds statements were substantially true.
2) Honest opinion
Contained in section 3
has to meet 3 conditions: statement needs to be an opinion, expressed as an opinion, and this opinion could be held by another honest person
3) Public Interest
Previously known as Reynolds Defence
Now contained in S4
If D believes its in public interest for this info to be released, then they can rely on this
Reynolds v Times Newspapers- Irish PM accused of lying in parliament and leading to govts collapse
4) Website operators
this is a defence for distributors
contained in S1 of 1996 act
5) Peer reviewed journals
Remedies Available for C- Defamed person
If C is successful and the statement was defamatory, then they will receive damages to compensate for their loss of reputation
For defamation, you can be awarded damages in: • Compensation • Deterrence • Vindication • Aggravation • Exemplary damages
Other remedies available from 2013 Act
S.12 = Court can order D to publish summary of its judgment in favour of C
S.13 = Court may order website/distributor to take down/stop distribution of statement
