Defamation Flashcards
Definition + Act
‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’
Defamation Act 2013
4 Requirements for claimant to use defamation
Claimant must be alive (Claim dies with death of either party Law of Property Act 1934)
Claimant must not be a political party or Government body, as this amounts to free speech
Claimants representing companies can only claim if defamation caused or likely to cause serious financial loss.
Claimants from abroad can bring a claim if: ‘of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’
2 types of defamation?
Openly defamatory statements
Innuendos
Assessing a defamation claim - 3 steps
Is it openly defamation / innuendo?
Does it refer to claimant?
Was it published?
What are openly defamatory statements?
‘Words or statements that lower the claimant in the estimation of right-thinking members of society in general’ - Sim v Stretch [1936]
‘Right-thinking’ - the reasonable reader, viewer or listener ‘as someone who is fair-minded, not avid to scandal, suspicion nor unduly naive, nor selective of defamatory meaning where non-defamatory meanings are possible’ - LJ Reid, Lewis v Daily Telegraph [1964]
Ridiculing a person does not amount to defamation unless it harms their public image / profession; Berkoff v Burchill [1996] - joke made about appearance, not reputation - people should be able to make fun of others without fearing litigation.
What are innuendos?
Implied or veiled attacks on someone’s reputation, has the same effect as an openly defamatory statement.
Monson v Tussauds [1894]
Claimant recently cleared of murder, Madame Tussauds had created waxwork of claimant holding a gun in the ‘chamber of horrors’ display; This was held to be defamation, although it had not been openly expressed.
2 Types of innuendos?
False / popular
reader has to read between the lines to uncover true meaning of defamatory statement - Lewis v Daily Telegraph [1964] - C business investigated by fraud squad, D wrote article about it; held not defamation, as right-minded reader
knows investigation is not an admission of guilt.
True / legal innuendo
When defamatory nature of statement is not apparent on its face but depends on facts or circumstances known to those to whom the statement is published - McAlpine v Bercow [2013] - Tweet directed at an MP, which was cryptic to those not clued into the current allegations made against an anonymous person.
Refers to the claimant?
Test - Would a reasonable, right-minded person, having knowledge of the circumstances, understand the statement is referring to the claimant? - Morgan v Oldham Press ltd [1971].
+ Statements which are directed at other people, but hurt the reputation of others (i.e. that share the same name) are liable for defamation. Additionally, works of fiction which harm the reputation of the claimant are also liable, as seen in Hulton & Co v Jones [1910]
+ References to a group
Unless the group has legal identity (eg. Company), no liability.
Unless:
The class is small enough that claimant can prove the statement applies to everyone within that group
Claimant can show that the statement refers to him directly - Knuppfer v London Express Newspapers Ltd [1944)]
Published?
Must have been communicated:
Must have been communicated to a third party, not necessarily has to be actually published - Theaker v Richardson [1962] - Defamation letter posted to someone, held that someone other than the claimant may have opened it, therefore a third party, as c’s husband did.
Re-publication?
Whenever a defamatory statement is published, a new claim arises (Duke of Brunswick v Harmer [1849])
S8 DA 2013 states a 12 month limitation period for new claims of defamation from the same publisher, unless communicated in a different form of media.
5 Defences
Truth
Privilege
Honest opinion
Matter of public interest
Distributors
Defence - Truth
s2(1) DA 2013 - ‘Defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true’
Not fully true, just true enough in the way that what they are conveying, the ‘sting’ of the defamation is mostly true
Defence - Privilege (2 types)
Absolute privilege - 1688 Bill of rights
Parliament proceedings / judicial proceeding reports / court proceedings.
Qualified privilege
Protects the defendant if they made it honestly and without malice. Occurs when the third party has an interest in the information provided by the defendant, I.e. Job references
Defence - Honest opinion
s3 DA 2013 defence requirements:
1) Statement was one of opinion
2) Statement referred to the basis for the opinion
3) An honest person could have held that opinion on the
basis of:
3a) Any fact at its time of publishing
3b) Any asserted to be a fact from an earlier privileged
statement
Defence - Distributors
Distributors / website operators
Protected by the DA 2013
Claims can only be brought against: author, editor or publisher. Claims cannot be brought against distributors UNLESS they operated with malice against the claimant.
Two types of remedies
Damages
Injunctions
