Defamation Flashcards
What competing rights need to be balanced?
Article 8 (protect reputation) and Article 10 (freedom of expression).
Both qualified rights so can be removed if set down in law, a legitimate reason and is necessary and proportionate.
What is libel?
What is slander?
Libel = Permanent form (newspaper article)
Slander = Non permanent form (unreported speech)
A claimant in defamation will request damages for their loss of reputation (Monroe v Hopkins)
Elements of defamation
- Does the statement refer to the claimant?
- Is the statement defamatory?
- Has the statement been published?
- Does a defence apply?
Element 1
Does the statement refer to the claimant?
Share the same name as the claimant (Newstead v London Express) or share the same name as a fictional character (Hulton v Jones)
Through context (Hayward v Thompson) as a reasonable person could take the words to refer to him
Claimant’s picture can be used (Dwek v Macmillan Publishers Ltd)
Can defame a group but must be ‘of the claimant’ generalisations will not suffice (Knupffer v London Express Newspapers). A group consisted of 12 people in (Riches and Others v News Group Newspapers)
Only the claimant can bring an action.
Element 2
Is the statement defamatory?
A defamatory statement is one that ‘lowers the claimant in the eyes of right thinking members of society’ (Sim v Stretch), however McBride and Bagshaw state that a statement is defamatory if a reasonable person thinks less of the individual or think they lack the ability to do their job effectively or cause avoidance or treat the person as a figure of fun. Section 1 Defamation Act 2013 states that it is only defamatory if caused or likely to cause serious damage to the claimant’s reputation. This shows how there is NO SINGLE DEFINITION.
Serious harm determined by the impact of the statement not just the meaning of the words (Lachaux v Independent print Ltd).
- Social media cases
Stocker v Stocker
“Impressionistic and fleeting” - Right thinking
Byrne v Dean - Gambling machine - Reputation on surface
Charleston v News Group Newspapers - Neighbours - Innuendos
Lord Mcalpine and Sally Bercow - Paedophile
Tolley v Fry - Person in advert who was not supposed to be
Element 3
Has the statement been published?
Information passed from defendant to someone other than their spouse or the claimant.
Repetition = Fresh publication, fresh cause of action. Repetition rule.
Repetition by the same publisher = No fresh claim for defamation. Section 8 of Defamation Act 2013
Claim brought within 12 months of publication.
Element 4
Defences to defamation
Codified and simplified by the Defemation Act 2013
1. Truth
2. Honest opinion
3. Publication - Matter of public interest
4. Absolute privilege
5. Qualified privilege
6. Offer of amends
Truth
Section 2
Replaces old defence of justification.
Stocker v Stocker - Social media (E2) truth
Taylforth v News Group Newspapers - Justification
“Substantially true” - Even when 2 or more things have been said and 1 of those things cannot be proved.
Gekas v Scottish Television - War crimes could not prove the claim but did not materially injure their reputation.
Honest opinion
Section 3
- Statement must be of opinion
Comment rather than fact.
Galloway v Telegrath Group Ltd - Fact not comment. - Basis of the opinion
Must indicate explicitly or implicitly facts on which it is based and what facts led to the comment.
Joseph v Spiller - Honest opinion
The honest opinion must be a reasonable one.
Objective test.
S.3(5) No defence if not honestly expressed.
S.3(7) Privileged statement and fair comments.
David Soul v Matthew Wright
Publication on a matter of public interest
Section 4 (Reynolds defence)
Matter of public interest.
Reasonably believed in publication “all circumstances of the case”.
Editorial judgement - Allowances
Reynolds v Times - Deliberatly mislead cabinet.
As confirmed in Flood v Times
The Defemation Act 2013 caused large debate over the status of factors and in Serafin v Malkiluicz it confirmed that it was not to be used as a checklist.
Lachaux v Independent Print Ltd
Absolute privilege
Even when defamatory it can be said in situations such as:
- Parliamentry proceedings = Parliamentry privilege (soverignty), Hansard.
- Court proceedings = Fair, accurate and contemporaneous.
- Communications = Solicitor and client.
- Statements made by one spouse to another.
Qualified privilege
Broader.
Only covers statements made without malice.
For example:
- Public proceedings by any law making body.
- Publication of scientific and academic material. (Section 6) NMT v Wilmhurst = New defence in Section 6 - Peer review.
- Assessmentt of merit, more than 1 author.
- Publication of fair and accurate copy.
Unintentional defamation: Offer of amends
Written correction or apology and payment of agreed compensation.
Not available when intentional and useful for publications that are true but could be taken to refer to someone else.
Keith Lard and Vardy v Rooney
Section 11 = Tried without a jury (a year).
Section 12 = If won, summary of judgement.
Section 13 = Remove statement or stop material containing statement.
