Defamation Flashcards
What is the definition of defamation
“Defamation is the publication of a[n untrue] statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally, or tends to make them shun or avoid him.”
Which statute deals with defamation?
Defamation Act 2013
What are the two types of defamation?
(1) Libel - defamatory statement in a permanent form (written)
(2) Slander - defamatory statement in a temporary form (verbal)
The competing rights the court must grapple with are:
a) An individual’s right to privacy under Article 8 European Convention on Human Rights (ECHR) and
b) The medias’ right to freedom of expression under Article 10 ECHR.
Defamation relies upon….
the meaning of the words or actions in question to establish if it was libelous of slanderous.
What are four elements of slander?
- There must be an accusation.
- Basis of Damages – there must be proof of special damage.
- It must be against an identifiable individual or individuals.
- The statement must be one that causes someone to think less of the person or persons to whom it refers.
What are the three elements of libel?
- Usually written but can also include media such as tv programmes.
- Basis of damages: it is actionable per se i.e. it is the conduct that is wrong, regardless of whether any harm is caused to the claimant.
- The statement must be one that causes someone to think less of the person or persons to whom it refers.
Does the publication need to be made to the entire world?
Publication of the statement does not need to be to the world at large; the law only requires that it is communicated to a third party.
Publications include, tweets, blogs and websites.
Lord McAlpine of West Green v Bercow (2013)
The claimant alleged defamation from a tweet made by the defendant stating “Why is Lord McAlpine trending?”. The tweet also included an “innocent face” emoji.
The court held that the text contained an innuendo that the claimant was involved in the child sex abuse, and it was therefore defamatory.
Section 1 Defamation Act 2013 states that the publication must cause serious harm.
This means the defamatory statement is actionable only if it causes, or is likely to cause serious harm to the claimant’s reputation or serious financial damage to a company.
What are the requirements of harm under the Defamation Act 2013
- A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant
- For the purposes of this section, 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.
What did the case of (1) Michael McGrath; (2) Necon Technologies Ltd v (1) Byron Bedford; (2) Proeconomy Ltd [2016] establish?
Sir David Eady in his judgment explained that it was now a substantive element of a claimant’s case that serious harm to their reputation had occurred, or is likely to occur, and would therefore need to be considered as a separate issue aside from any strength or weakness of a possible defence.
What is a defamatory statement?
Parmiter v Coupland (1840)
A defamatory statement is one that is “calculated to injure the reputation of another, by exposing them to hatred, contempt or ridicule”.
Parmiter v Coupland (1840)
What is a defamatory statement?
Sim v Stretch (1936)
In Sim v Stretch (1936) the test was developed further and the House of Lords held that the statement would
“tend to lower the claimant in the estimation of right-thinking members of society”.
In the textbook on tort written by McBride and Bradshaw, they suggest that in order for a statement to be considered defamatory, it must lead an ordinary person to:
- Think of the individual or company less well;
- Think that the person lacked the ability to do the job well;
- Shun or avoid the person referred to; and
- Treat the person referred to as a figure of fun or an object of ridicule.
