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Defamation Flashcards

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1
Q

why is reputation important?

A
  • the opinion others hold of one as a candidate for business or social transactions
  • has important economic functions .
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2
Q

why is freedom of expression important?

A
  • ‘Freedom of Expression … constitutes one of the essential foundations of a democratic society’
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3
Q

what case places an emphasis on freedom of the press?

A
  • Lingens v Austria
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4
Q

what is the article that concerns freedom of expression and what type of right is it?

A
  • article 10

- qualified

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5
Q

what case in defamation concerned physical appearances and why did the claim succeed?

A
  • Berkoff v Burchill
  • ‘hideously ugly’ would tend to expose him to ridicule
  • would cause other people to shun or avoid Berkoff.
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6
Q

how did judges rebalance the law in Derbyshire County Council v Times Newspapers? (3)

A
  • The House of Lords held that local authorities could not sue in defamation.
  • The House of Lords concluded that those claims should stop in order to protect free expression more adequately.
  • Lord Keith: ‘There is no public interest favouring the right of organs of government, whether central or local, to sue for [libel]’. – should be disallowed from bringing claims
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7
Q

what did Goldsmith v Bhoyrul state about political parties?

A
  • Political parties cannot sue in defamation
  • While political parties and local authorities cannot bring defamation actions, individual politicians and councillors can maintain such actions
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8
Q

what is the statute for defamation

A
  • The Defamation Act 2013
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9
Q

define liable and slander

A
  • Libel: defamatory statements that take a permanent or semi-permanent form are libellous (Monson v Tussauds - a waxwork image of the plaintiff situated close to a ‘Chamber of Horrors’)
  • Slander: a more transient form of defamation: e.g., spoken words; mimicry; gestures.
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10
Q

what is special damage?

A
  • loss that can be measured in pecuniary terms.
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11
Q

how can liable and slander be actionable

A
  • Libel is actionable per se (subject to section 1(1) of the Defamation Act 2013 (the ‘serious harm’ requirement)).
  • Slander (subject to two exceptions) requires proof of special damage.
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12
Q

how can slander be actionable per se + authority?

A
  1. Imputation of a criminal offence punishable with imprisonment (Gray v Jones [1939] 1 All ER 798).
  2. Slander arising from words ‘calculated to disparage the claimant in any office, profession, calling, trade or business’ held or carried on by him or her at the time of the publication (Defamation Act 1952, section 2)
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13
Q

what are the three test in Halsbury’s Laws of England to define defimation?

A

‘A statement is defamatory … [if] it is calculated to lower [the plaintiff] in the estimation of right-thinking members of the community or to cause him [or her] to be shunned or avoided or expose him [or her] to hatred, contempt, or ridicule’.

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14
Q

what case backs the right thinking members of society test? and how was it applied?

A
  • Sim v Stretch

- would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally’.

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15
Q

what did stocker v stocker say the judges job was?

A
  • to identify the single meaning of the words complained of within the relevant area of contention and decide if the word is actually defamatory
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16
Q

what were the 8 propositions set out in Jeynes v New Magazines Ltd

A
  1. ‘The governing principle is reasonableness’.
  2. ‘The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available’.
  3. ‘The reader shouldn’t ‘Over-elaborate analysis is best avoided’.
  4. ‘The intention of the publisher is irrelevant’.
  5. ‘The article must be read as a whole (the substances if the text is mild compared to the headline)
  6. ‘The hypothetical reader is taken to be representative of those who would read the publication in question’.
  7. ‘In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …”’.
  8. ‘It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense”’.
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17
Q

what is Monroe v Hopkins about

A
  • Twitter.
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18
Q

what is vulgar abuse? is it actionable? and name a case?

A
  • ‘Vulgar abuse’ embraces words spoken in the heat of argument that were intended and understood by those who heard them as mere insult
  • No
  • Hoebergen v Koppens
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19
Q

what is a True innuendo? + case

A
  • ‘an apparently innocent statement may well hide a defamatory barb’
  • Tolley v Fry
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20
Q

where can a true innuendo become actionable? (legal innuendo)

A
  • the statement may, when conjoined with certain extrinsic facts clearly yield a defamatory meaning
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21
Q

what are the 2 components of a true innuendo

A
  1. Expression (seemingly innocent on its face).

2. Extrinsic facts (known to those to whom the statement is published).

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22
Q

what must someone do when seeking to rely on a true inneundo? + cases

A
  • C must prove publication to a person or persons with knowledge of the relevant extrinsic facts: Fulham v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 652.
  • If C fails to plead and prove publication to these persons, his or her pleadings will be struck out: Baturina v Times Newspapers Ltd [2011] EWCA Civ 308.
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23
Q

what must someone do when seeking to rely on a true inneundo? + cases

A
  • C must prove publication to a person or persons with knowledge of the relevant extrinsic facts: Fulham v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 652.
  • If C fails to plead and prove publication to these persons, his or her pleadings will be struck out: Baturina v Times Newspapers Ltd [2011] EWCA Civ 308.
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24
Q

what is a false innuendo and what is a case?

A
  • Here, the pleaded meaning is simply a matter of implication from the words themselves.
  • If the words used are considered incapable of bearing the meaning the claimant alleges, the claim will fail.
  • Judges will not accept ‘some strained or forced or utterly unreasonable interpretation’
  • Jones v Skelton
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25
Q

what does the defamation act section 1(1) state?

A

a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

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26
Q

what does the defamation act section 1(2) state?

A

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.

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27
Q

what are 4 consideration about serous harm in regards to publication in Lachaux v Independent Print Ltd?

A
  1. The scale of publication (national newspapers);
  2. The statement had been read by people in this jurisdiction who knew Mr Lachaux;
  3. The likelihood of the publication being read by others who knew or would come to know Mr Lachaux in the future; and
  4. The gravity of the statements made. – seriousness
28
Q

what are three consideration that the supreme court stated in Lachaux about serious harm

A
  • claimants must now demonstrate that they have suffered ‘serious harm’ by reference to the facts – and not just based on the implied meaning of the words used (actual impact or anticipated impact)
  • ‘Serious harm’ will not be dependent on the worst possible interpretation of a defamatory statement.
  • ‘Serious harm’ will need to be to be clearly evidenced by reference to the facts of the case. – at least anticipated impact needs to be evidenced
29
Q

what do bodies that trade for profit have to show?

A
  • Bodies that trade for profit have to show that ‘harm to reputation’ has caused or is likely to cause ‘serious financial loss (DA s1(2))
30
Q

what does reference to the claimant mean?

A
  • The words have to be defamatory of the claimant and not someone else (real or imaginary)
31
Q

how does Hayward v Thompson apply the reasonable person test?

A
  • The identification of the claimant depends on whether reasonable people would believe that the words complained of referred to him or her
32
Q

what case concerns Accidental References to the Claimant and what is the outcome?

A
  • E. Hulton & Co v Jones
  • it is irrelevant that the defendant did not intend to refer to the claimant. – defamation acts a species prima facie as strict liability
33
Q

can a class of people be defamed and what case?

A
  • no

- Knupffer v London Express Newspaper Ltd

34
Q

how can the rule in Knupffer be actionable?

A
  • if there is something in the expression or circumstances under which it is published that identifies a particular claimant, it will be actionable.
35
Q

what are three considerations when determining if a defamation of a member of the class is actionable?

A
  • ‘the size of the class’;
  • ‘the generality of the charge’;
  • ‘the extravagance of the accusation’.
36
Q

what is the difference in Wennhak and Wenman

A
  • Wennhak: Communication (by D) to his or her spouse does not constitute publication
  • Wenman: Communication (by D) to C’s spouse does constitute publication
37
Q

what case concerns reasonable anticipation and of what?

A
  • Pullman v W Hill)
  • the person sending a letter should anticipate that it will be read by a third party: e.g., a correspondence clerk
  • however D does not have to anticipate that a letter will be read by an inquisitive butler: Huth v Huth
38
Q

what does Defamation Act 2013, section 8 state about republication

A
  • this section provides that, where a statement is republished by its original author, and the republication is essentially the same as the original publication, a new cause of action will not be triggered
39
Q

what is the limitation period for defamation actions and what is the authority?

A
  • The Limitation Act 1980, section 4A specifies that the limitation period for defamation actions is one year from publication.
  • Judges have discretion under section 32A of the 1980 Act to allow a later claim.
40
Q

what is the principle on repetition

A
  • In principle, we can describe anyone involved in the dissemination of statements as ‘publishing’ them.
  • ‘To repeat a rumour, even while disowning it, is capable of amounting to libel or slander’
41
Q

what is reportage?

A
  • If you report the fact that there is an area of controversy and you do so in neutral terms, you could enjoy the protection of the law
  • section 4
42
Q

what statute provides protection for secondary parties

A
  • Defamation Act 1996 section 1.
43
Q

what does Defamation Act 1996, section 4(3) state about secondary parties?

A
  • the disseminator’s plea of innocence will be defeated if C can prove that D had actual knowledge that the statement was defamatory or could reasonably have foreseen reputational damage
44
Q

what is the test and case for remoteness?

A
  • Test: reasonable foreseeability

- Authority: Slipper v BBC [1991] 1 A ER 165.

45
Q

what statutory authority allows for the defence of truth

A
  • Defamation Act 2013, section 2(1): ‘It is a defence … for the defendant to show that the imputation conveyed by the statement complained of is substantially true’.
46
Q

how can the defence of truth be lost + what authority?

A
  • if malice is proved

- Rehabilitation of Offenders Act 1974, section 8

47
Q

how and in what case is malice define in?

A
  • Horrocks v Lowe -

- ‘Malice’ means ‘’a desire to injure the person who is defamed’.

48
Q

what is the sting of the charge?

A
  • he or she must prove sufficient facts to justify
49
Q

what does Defamation Act 2013, section 2(3) state about multiple allegations?

A
  • where the defendant can offer a justification for only one of the allegations, he or she may argue that the remaining allegations are insignificant.
  • Where such an argument fails, D will have to pay damages
50
Q

what are the Components of the Honest Opinion Defence?

A
  • Defamation Act 2013, section 3(2): The statement must be an opinion
  • s3(3): The statement of opinion must indicate (whether in specific or general terms) the facts on which it is based
51
Q

what does Section 3(4) establish about the defence of honest opinion

A
  • an ‘honest person’ could have held the opinion either (a) ‘on the basis of facts that existed at the time the statement complained of was published’ or (b) on the basis of anything asserted as a fact in a privileged statement published before the statement complained of.
52
Q

how can one loose the defence of an honest opinion as stated in Defamation Act 2013, section 3(5)?

A
  • if the claimant shows ‘that the defendant did not hold the opinion’
53
Q

what is the test for Publishing a Statement of Opinion Made by Another and where is it found?

A
  • Defamation Act 2013, section 3(6) establishes that where the defendant publishes a statement of opinion made by another, the test of liability is: whether the defendant ‘knew or ought to have known’ that the author did not hold the opinion’
54
Q

how can one use The Defence of Publication on a Matter of Public Interest

A
  • D can rely on this defence provided that the subject matter of the publication is (a) ‘a matter ofpublic interest’ and (b) he or she ‘reasonably believed that publishing the statement complained of was in the public interest’ (whether the statement is true or false)
  • Defamation Act 2013, section 4(1)(a)-(b)
55
Q

how can one act responsibly in Reynolds v Times Newspapers

A
  • taking steps to verify the information.
56
Q

what matters to be taken into account when determining whether D has engaged in responsible journalistic practice in Reynolds

A
  1. ‘[t]he seriousness of the allegation’;
  2. ‘[t]he nature of the information, and the extent to which the subject matter is a matter of public concern’;
  3. ‘[t]he source of the information’; - some will be more serious than others
  4. ‘[t]he steps taken to verify the information’;
  5. ‘[t]he status of the information’;
  6. ‘[t]he urgency of the matter. News is often a perishable commodity’;
  7. ‘[w]hether comment was sought from the [claimant]. An approach to the [claimant] will not always be necessary’;
  8. ‘[w]hether the article contained the gist of the claimant’s side of the story’; - establish balance
  9. ‘[t]he tone of the article’; - calm or unbalanced
  10. ‘[t]he circumstances of the publication, including the timing’.
57
Q

what act states that judges have discretion

A
  • Defamation Act 2013, section 4(4)
58
Q

what act puts the burden of proof onto C

A
  • The Defamation Act 1996, section 4(3)
59
Q

what happens in situations where D promises to make amends

A
  • A defendant who has innocently defamed C may respond to a defamation action by making an offer of amends.
  • An offer of amends takes the form of a correction or apology and the payment of suitable compensation (Defamation Act 1996, section 2(4)).-
  • If C accepts the offer of amends, that is the end of the matter.
  • Where an offer is not accepted, the fact that D has made it yields him or her a defence under section 4(3) of the Defamation Act 1996.
  • D is presumed to have published the relevant material innocently
60
Q

how can secondary publishers rely on section 1 of the Defamation Act 1996

A
  • show that they took ‘reasonable care in relation to its publication’ (Section 1(1)(b)) and they ‘did not know, and had no reason to believe, that what [they] did caused or contributed to the publication of a defamatory statement
61
Q

what statute concerns Peer-Reviewed Statements in Scientific or Academic Outlets and what are the conditions

A
  • Defamation Act 2013, section 6: the publication of a statement in a scientific or academic journal is privileged if a number of conditions are met:
  • s 6(2): ‘[T]he statement relates to a scientific or academic matter’
  • s 6(3): ‘[B]efore the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out’ by (a) the journal’s editor or (b) one or more persons with expertise in the scientific or academic matter concerned
  • s 6(6): ‘A publication is not privileged by virtue of this section if it is shown to be made with malice’.
62
Q

what case concerns Peer-Reviewed Statements in Scientific or Academic Outlets

A
  • British Chiropractic Association v Singh
63
Q

what remedies are available for defimation

A
  • Damages ‘At Large’:
  • the judge in making a subjective determination on a case-by-case basis – having taken account of the facts/circumstances in which the claim arose.
64
Q

what is Aggravated damages

A

designed to provide redress where D has behaved reprehensibly/C has suffered hurt to dignity.

65
Q

what are Exemplary Damages

A
  • the focus is on the ‘outrageous’ (Fleming) character of D’s conduct. – where someone has made a profit from someone else’s defamation
  • Exemplary damages express, among other things, public indignation at D’s conduct.
66
Q

what is Interim injunctions

A
  • the common law position – this form of relief has not been granted unless the defendant has no realistic prospect of successfully running a defence
  • Bonnard v Perryman

Law -Tort (6 decks)

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