Defamation Flashcards
What is libel and slander?
Libel - defamatory statement made in permanent form
Slander - defamatory statement in transient form
What is a defamatory statement ?
According to the defamation act 2013-
A defamatory statement causes serious harm to - or is likely to cause serious harm to - someone’s reputation
How does the defamation act 2013 apply to businesses ?
Firms and businesses can only sue if they can show they suffered or are likely to suffer SERIOUS FINANCIAL LOSSES
What is the DIP test for libel?
1 DEFAMATORY - statement is defamatory
2 IDENTIFIED - claimant is identified in some way
3 PUBLISHED - statement has been published
Why should you be as precise as possible when identifying people? Rather than generalise to avoid the I In DIP for libel?
Not identifying a person can lead to a case of mistaken identity
BANBURY CID CASE - newspaper alleges that detectives had raped a woman.
The 12 detectives sued and were awarded 250,000
According to mcnaes - how many in a group is considered too large to sue?
35
Who can and can’t sue for libel ?
Can - individuals and corporations
Cant-
The dead
Local / national government
What is defamation by innuendo? And example?
Be aware of the potential of hidden meaning or you open yourself up to defamation.
A STATEMENT WITH SECONDARY MEANJNC WHICH COULD BE UNDERSTOOD BY SOMEONE WITH SPECIAL KNOWLEDGE
Libel claimant here must show
- facts or circumstances gives rise to innuendo
- facts or circumstances were known by publishers
E.g. lord gowrie and the daily star - snort, expensive habits - implied he took illegal drugs
What is defamation by juxtaposition?
Happens when you do not put images or words in context clearly -
E.g. putting a story about murder next to a picture of a celebrity - different story - without clearly separating the 2
What is defamation by inference ?
A statement with secondary meaning which could be understood by someone without special knowledge
E.g. bus driver was slurring speech - infer he’s drunk
What’s the max length of time someone can take libel action after publication ?
1 year
What is the repetition rule- what happened with this years later?
- Repetition rule meant that every repetition of a defamatory statement eg each time it was downloaded it was seen as a fresh publication
2013- an action states when a defamatory article is first published - prevents libel actions for stories just being read online
What is Bane and antidote in reference to defamation? With example
If libel is made in one part but removed in another - it may not stand up in libel case !
E.g. - neighbours stars superimposed onto porn poses (bane) then explaining where they were from - from a game that stars knew nothing about (antidote)
What are the 4 defences of defamation?
Truth
Honest opinion
Privilege - absolute and qualified
Innocent dissemination
What protections are available for defamation defenders ?
Accord and satisfaction
Offer of amends
Explain the truth defence for defamation?
According to section 2 of the 2013 defamation act :
An allegation must be found to be substantially true on balance of probabilities
A defendant needs to gather proper evidence to prove this e.g. witnesses, signed statements, affidavit - like used in Barry Fitton pedophile claim
What is the honest opinion defamation defence.
According to section 3 of the 2013 act,
An honest opinion defence
1- must be recognisable as comment or opinion
2- must be based on provably true facts or privileged material
3- must be an honestly held view not motivate by malice
4- must indicate the fact of information on which it is based
Give an example
Of when a defamation case certainly couldn’t use the honest opinion defence?
David soul won 20k after a man in the mirror published a review of his show but was not actually there to review it !
What is the absolute privilege defence against defamation claims ?
Held in courts and parliament.
Courts - anything can be reported from court as long as it’s - fair, accurate, contemporaneous. From public court cases
1996 defamation act
What is the qualified privilege defence against defamation claims ?
Laid out in defamation act 1996
The publisher may have a moral duty to make the statement.
Requirements:
Fair
Accurate
Published without malice
On matter of public concern!! -
Part 1- covers statements without explanation or contradiction
E.g. gives you the right to publish reports, public enquiries etc …
Part 2-
Covers written and verbal statements in public meetings
E.g. you might have a trusted conversation you feel you need to publish on matter of public concern
To protect its qualified privilege defence - a media organisation must publish ‘reasonable letter or statement by way of explanation or contradiction if requested’
What is accord and satisfaction in regard to defamation
A defamation case can be halted on the grounds that the issue has already been disposed of by the publication of an agreed correction or apology approved by the claimant as a settlement
What is leave and license in regard to defamation?
Pre- publication agreement that defamatory material could be published to form a part of apology / correction
What is offer of amends in regard to defamation?
Press offers apology and offers to pay damages and costs 1996 defamation act
What is the innocent dissemination defence of defamation?
Applies to anyone who is not author editor or publisher of statement - eg live broadcasters
Must show reasonable care was taken and the publication did not know defamatory statement had been made. - e.g. didn’t know about statements defamatory nature + this was not due to negligence
Defence under 1996 defamation act
What does the defamation act 2013 say about moderating comments?
Section 5 says website operators
1 Don’t have to remove defamatory comments as soon as alerted (compared to 1996 act)
2 But they can moderate and check comments to weed out defamation
3 Complainant should sue originator of post rather Than website
What is the Reynolds defence - to defamation cases ?
Section 4 defamation act 2013
- stories must be on matter of public interest
- must be fair and balanced
- reasonable belief story is true
Came about after Irish PM Reynolds sued times newspapers over allegations of him misleading Parliament -> first time there seemed real need for a public interest defence for defamation
