defamation Flashcards
what is the aim of defamation act 2013
protects the reputation of the claimant against defamatory statements
balances this with freedom of expression (article 10 HRA)
criteria for 1st part of structure
c must prove:
the d made a defamatory statement
that refers to the claimant
that the statement was published to a third person
defences available
difference between libel and slander
a defamatory statement communincated in permanent form is libel (includes plays and tv/radio)
communicated in temporary form is slander
libel is actionable per se- without proof of special damage just harm to reputation (jameel v dow jones)
slander is only actionable if there is special damage (actual financial loss)
except for-
a. imputation of crime
b. slander in respect of office, profession,calling ,trade
defamation structure
- was the publcation defamatory of the claimant because the meaning it conveyed was likely to cause serious injury to the claimants reputation
- if so is the publication defensible under statutory or common law defences
- if not what damages should be awarded
analysis points on libel and slander
the porter committe (report of the committee on the law of defamation, 1948)- if all slander was actionable per se then the number of litigation cases would greatly increase aswell as also the cost of litigation cases (support for thr distinction of libel and slander)
Faulks committee (report of the committee on defamation, 1975)- distinguishing between libel and slander was ‘unreasonable and unnecessarily complicated’, argues that by combining slander and libel together it will be easier to undertand and more just to those claimants who have had things said about them in temporary form (aainst distinction between libel and slander)
refrom from the 2013 act
sc1 serious harm
(1)- a statement is not defamatory unless the publication has caused or is likely to cause serious harm to the reputation of the claiman
(2)- harm to the reputation of a body that trades for profit is not serious unless causes serious financial loss
sc10(1)- a court does not have the jurisdiction to hear a defamation case brought against a person who is not the author, editor or publisher unless the court is satisfied that it is not reasonbly practical for a claim to be bought againt these people
if you can sue the author, editor or publisher you must do so
who can sue
natural persons and companies (must alive)
companies must prove they have a business or trading reputation capable of being injired which causes financial loss (jameel supra)
not public authorities (derbyshire county council v times newspaper)
not political parties (goldsmith v ghoyrul)
analysis of groups of people being able to sue for defamation
oster from ‘the criticisms of trading corporations and their rights to sue for defamation’- the purpose of companies is to make profit and they cannot suffer ‘hurt feelings or mental distress’ (against companys rights)
Mullins and Scott from ‘something rotten in the state of english libel law?’- suggests there is value in a companys name and its reputation, therfore if it is defamined they decrease customers and employees wich leads to financial loss (for companies rights)
Brown J in Bagnor Regis v campion- local governments have governing reputations which they shoudl also be able to protect like companies (for public authorities)
Weir in ‘local authority v critical ratepayer- a suit of defamation’- public authoritirs should have to put up with criticisms as it is a required part of the democtratic process
criteria 1: what is a defamatory statement
traditional test (the ridicule test)- something that injures the reputation of another by exposing them to hatred, contempty or ridicule (parmiter v coupland)
the lowering of reputation test- something that tends to lower them in the esteem of ‘right- thinking members of society (sim v stretch)
the shun and avoid test (rarely used)- something that induces others to shun and avoid the claimant (youssoupoff v metro goldwyn mayer)
the standard of assessment for a defamatory statement
would it lower the claimant in the esteem of the general society not a section of it (monrow v hopkins)
type of statement for defamatory statment
abuse- abusive words can be defamatory but dont need to be (brooks v lind)
mockery- berkoff v burchill
opinion- an expression of opinion can be defamatory
2 issues to consider when deciding whether a statement satisfies the standard test: meaning and interpretation
what is the meaning and would this lower the reputation of the claimant?
meaning- how the words would be understood by an ordinary person (capital amd counties bank v Henty)
the whole statement must be looked at
interpretation- p must prove what the inferred meaning was
must consider innuendo for whether a statement is defamatory
where the specific facts know to the reader give the statement a meaning in addition to the ordinary meaning
(i.e knowing that a house name refers to a drug den)
lewis v daily telegraph
only need to prove that there are some people who might understand it that way
single, natural and ordinary meaninf
where the parties argues that the statement has different defamatory meanings they judge decides the single, natural and ordinary meaning based on what the reasonable reader would give the words
takes into account contexts (tweets being casual)- stocker v stocker
defamatory statements presumed to be false
if a statement is held to have a defamatory meaning it is presumed to be false
if d says its true they must prove it
if the d succeeds the claim will fail
criteria 2- the statement must refer to the claimant
the words must be understood and concerning the claimant- knupffer v london express newspaper
claimant does not need to be names- knowledge of facts suggest claimant- morgan v odhams press
unintentional reference not a defence- newstead v london express newspapers
aggregation- 2 or more publications can be taken together to connect a defamatory statement- simon v lyder
reference to a class
if the class is small enough so that people woudl reasonably believe that every member was targeted, then all may sue
criteria 3- the statement was published to a third party
publication means communicating the defamatory statement to someone other than the c
the third party must understand the statement
not telling someone to their face unless said infront of other people
spreading the defamation is publication
publication by someone else
if a third party posts a persons defamatory statement, the person making the statement will not be liable unless-
a. A authorised/asked B to do so
b. where A did not authorise B, if A intended it to be published or ought to have foreseen that it would be published (slipper v BBC)
who can be liable?
anyone who involves themselves in the communication of a defamatory statement such as
the author
editor
publisher
printer
but the person must have some knowing and active involvement in the process- hourani v thomson
those part of the publishing have a defence under sc1 if-
a. he was not the author, editor or publisher
b. he took reasonable care in relation to its publication and
c. he did not know and had no reason to believe that what he did contributed to the publication of a defamatory statement
proving publication-
presumption in certain cases such as-
a. a placard held up in a public place
b. a properly addressed and posted leter
c. postcards
but materials on the internet have no presumption that anyone has seen or read it- c must prove this
failure to act amounting to publication-
if you can remove defamatory matter but do so may amount to publication
this includes internet service providers (tamiz v google inc)
DFA 2013 sc5 added website operators to be liable for defamation-
sc2- it is a defence for operators to show that it was not the them who posted the statement on the website
sc3- defence is defeated if-
a. it was not possible for the c to identify the person who posted the statement
b. the c gave the operator notice of complaint
c. the operator failed to respond in accordance with provisions contained in the regulations
first publication-
an action for defamation must be brought within 12 months of publication- common law
so can occur at re-publication
sc8 DA 2013 changed the law- any action must be brought within 12 months of the first publication
structure 2: defences to defamation
Truth
absolute defences even if made with malice (or d did not believe it true)-
sc2 defamation act 2013-
(1)- d must show that the statement was substantially true
(3)- if one or more of the imputations are not substantially true the defence does not fail, just consider the ones proven true
the d must prove on the balance of probabilities that the statement was substantially true depp v news group newspapers)
minor inaccuracies do not matter- chase v news group
difficulties in proving truth
does what is proved to be truth correspons with the meaning of the defamatory word?
wakles v coke
defences 2- privilege
in certain occasions the d cannot be sued even if the statement is untrue as the public interest is more important than the claimants reputation
absolute privilege- even malicious statements are protected
qualified privilege- only applies where there is no malice
malice- d used the privileged occasion dishonestly or for some improper purpose
absolute privilege- even with malice
parliamentary proceedings- includes things MPS have said, reports, votes
judial proceedings- statements made in courts/tribunals (lincoln v daniels)
solicitor client communications- watson v M’Ewan
Executive communications- chatterton v SOS for india (letter from SOS for india to parliamentary secretary)
qualified privilege-where there is no malice
where the d-
a. has an interest or duty
b. to communicate information about the c
c. to a third party
d. who has an interest or duty in receiving it (adam v ward)
examples-
statements helping to discover criminals
statements about the misconduct of public officers brought to the notice of proper authority
peer reviewed articles
malice
4 types
1. the d does not believe te truth of the statement or is reckless as to whether it is true
2. abuse of purpose of privilege- for example wanting revenge
3. including extraneous matter
4. unreasonable publication to third party
defence 3- public interest defence
reynolds v times newspaper- HOL established a type of QP defence on matter of public interest
DA 2013 sc4 abolished the reynolds defence and suggsested-
(1) it is a defence for the d to show-
a. the statement was a matter of public interest and
b. the d reasonably believed that publishing it was in the public interest
reasonable belief that publication was in public interest
sc4(2)- the courts must consider all circumstances of the case
sc4(4)- the courts must make such allowance for editorial judgement as it consider appropriate
belief must have existed at time of publication- economou v de freitas
the conduct of the publisher must be considered
defence 4- honest opinion
sc3- it is a defence if-
(2)- the statement was an opinion (british chiropractic association v singh- inferences from facts)
(3)- the statement inidicated the basis of an opinion (why the opinion was held)
(4)- an honest person could have held the opinion on the basis
a. of any facts that existed
b. anything asserted to be a fact in a privileged statement
defence 5- offer of amends
if d did not know the statement referred to the claimant (subjective)
before raising defence the d must make an offer which-
a. contains a corrects and apology
b. states willingness to publish apology and correction
c. agree to pay sum determined by the court
consequences-
a. offer accepted- no defamation proceedings
b. offer rejected- defence raised
defence 6- apology
not a defnce at common law
libel act 1843 defence where-
a. the action is for libel in a publuc newspaper
b. the libel was inserted without malice and GN
c. an opology published in the same newspaper before porceedings started
d. a sum of monet paid
structure 3- remedies
damages
damages- compensate for damage to reputation, insult or injury to feelings, and financial loss
aggravated damages- circumstances and extent of publication, and conduct of d (cairns v modi)
exemplary damages- where d has dileberatelt or recklessly defamed c to make money
mitigation of damages- c has bad reputation, ds belief that statement was true, provocation by d
injunction
prevents publication or further publication
balance with freedom of expression
interlocutory injunction- grant injunction before court trial
sc13- order against a non party to proceedings
(1) the court may order
a. th eoperator of a website to remove the statement
b. anyone who is not the author, publisher or editor to stop distributing it
