DEFAMATION Flashcards
what is the aim of the law of defamation?
to protect an individual’s reputation
what are the types of defamation?
Libel - written
Slander - spoken
What is the main legislation governing defamation law
although defamation is mainly governed by common law, Defamation Act 2013 is a comprehensive statutory addition and reformed certain parts of the law
what is s 1 of the DA 2013
Threshold test for bringing a claim
‘must demonstrate that the statement caused/is likely to cause serious harm to reputation
How did s 1 of DA 2013 come about?
introduced by Tugendhat J in Thornton v Telegraph 2010
was developed in Lachaux v Independent Print 2019 which raised inherent tendency of words to actual facts - this was the first use of s 1 after introduction of legislation
what is malicious falsehood?
pursue alongside defamation claim
must prove actual economic loss
damages and economic loss must be quantified
How does Grappelli v Derek Block 1981 relate to malicious falsehood?
it was a failed defamation claim
then brought claim for malicious falsehood as the announcement was damaging to future success - provided evidence of financial losses and quantum of damages - was allowed
what are the defences for defamation
s 2 - (justification) > now truth
s 3- (fair comment) > now honest opinion/comment
s 4 - (Reynolds Defence) > publication on matter of public interest
Privilege - If untrue defamatory allegations are published on an occasion of privilege, they will be protected from a claim in defamation
- Qualified Privilege
- Absolute Privilege
explain the s 2 defence
must be substantially true
it is a complete defence
unnecessary to prove truth of every single detail
burden of proof on defendant
will have to prove on balance of probabilities
intention is irrelevant - so long as they thought it was true
what is the s 3 defence
was fair comment - now honest opinion/comment
show it was a statement of opinion not fact
must show 3 elements
1. clear statement is opinion
2. must have sufficient factual basis
3. show that a reasonable person might hold the same views
defence will fail if claimant shows that the statement was actuated by malice
- uncertainties around this area as judges may apply defence differently which can cause conflict
JOSEPH V SPILLER 2010
- CoA said fair comment defence failed
- UKSC said actually it does apply here and awarded appeal, reinstating defence
- Lord Nicholls Test was limited so that the commentator is not required to provide so much information – ‘general terms what the comment is about’
what is the s 4 defence
was Reynolds defence - now public interest
usually used by a journalist for a newspaper or television who had published a piece of investigative journalism. However, the internet has in recent years seen an explosion of blogs and amateur journalists.
The origins of this defence were found in Reynolds v Times Newspapers Ltd [2001]. - established defence as to publication of statements made in the public interest, as long as the defendant could show that it had met the standards of responsible journalism, assessed by reference to a non-exhaustive list of factors. (list of 10) - Lord Nicholls
When determining a defendants reasonable belief in S4 1 (b) that publication was in the public interest, the court had to take account of all the circumstances, which might include the factors in the Reynolds non-exhaustive list.
what did s4(6) abolish
the reynolds defence
which cases reaffirmed the test in Reynolds? and restated it?
Jameel v Wall Street 2007 reaffirmed 10 point test in Reynolds
Flood v Times 2012 restated Reynolds
Lord Phillips - public interest for info to be published (para 2)
what did Ursula Smartt say in para 182
Flood showed a shift towards libel courts accepting investigative journalism under Art 10 and covered by Reynolds when in public interest
what did Clayton and Tomlinson say in 2009? and how was it resolved?
Reynolds left defamation law in uncertainty regarding investigative journalism
resolved by s 4 DA 2013
