Defamation Flashcards
what are the underlying rights to defamtion?
art 8 - reputation
art 10 - expression
competing yet equal
what is defemation?
protects personality rights.
what did the Defamation Act change?
- removes presumption in favour of jury trial (jury will only be required if judge requests it)
- Claimants have to show they have suffered serious harm before they can sue s.1
- Introduces the ‘new defence’ of publication on a matter of public interest. (used ot be reynolds priviledge)
- puts old defneces of truth and honest opinion on a statutory footing - no moe justification and fair commment defences
- Increases protection for operators of websites that host user– generated content s.5
- Counters the problem of libel tourism (the claim has to have some connection with the UK) s.9
vii. Single publication rule s.8
viii. S. 6 of the Act provides protection for scientists and academics in peer reviewed journals – but there must be no malice
effect of section 2?
Introduction of the serious harm threshold – wasn’t entirley new but it did raise the bar.
effect of s.3?
New defences including… Publication on a matter of public interest – same as the Reynolds defence in common law.
effect of s.4?
Defences - Honest opinion (fair comment – CL) and truth (justification – CL). They aren’t entirely new either because they originate form common law.
effect of s.5?
defence for operators of websites (technological development).
effect of s.6?
liable tourism
Effect of s.7?
Single publication rule – restrictions on people bringing claims during certain time periods.
effect of s.8?
Publications in peer reviewed articles, as long as they aren’t malicious.
Who can sue?
companies if in relation to their business reputation (south hetton coal company)
individuals
What if theres no actual financial loss?
jameel v wall street journal - damages should be nominal.
Is there a hurdle of actual damage to prove (before)?
Jameel v Dow Jones:
No but to allow a defamation action where the company’s reputation has suffered no or minimal damage would infringe Article 10 ECHR?
what was the gear change in relation to proving harm for companies?
Companies now have to prove serious harm to their reputation as a result of the statement (like individuals):
DA 2013 s 1 (2): ‘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.’ Implies this is stricter than section 1 (1) (Defamation of an individual?).
High standard – harder than a private individual possibly.
who can sue - politicians v governmental bodies?
politicians can, governmental bodies cant becuase it would infringe on freedom of expression. (Derbyshire council v times newspaper)
Goldsmith v Bhoryul
What was s.9 made for?
combat the problemof libale tourism.
Court has to be satisfied that is appropriate to bring the claim in England and Wales. This narrows who can sue further.
Test: is there a defamtory statement?
sim v stretch - objective test
Would the words ‘lower the claimant in the estimation of right-thinking members of society generally.
Objective test: the reasonable person or people refers to right-thinking members.
lewis v daily telegraph - someone who is fair minded and not avid for scandal, not unduly naive.
applying the defamtory statement test?
Beroff v Burchill - ugly was capable of baring defamatory meaning.
what does the court favour since reform?
freedom of expression
What about the context of the statement?
The courts consider the whole context of the words and how they appear.
Case: Church v MGN
what about vulgar abuse?
Words spoken in the heat of the moment, understood as merelt insults, cannot be actionable (cannot dmage reputation).
Parkins v Scott.
what is an innuendo?
Apparently innocent statement may hide a defamatory statement. Expression, when paired with other facts might produce a defamatory meaning.
