Defamation Flashcards
What does the tort of defamation allow?
Allows C to seek reparations for damage to their reputation
What type of rights are article 8 and 10?
Qualfied rights (allows for state derogation if necessary and proprtionate)
as well as for……
Artciel 8-the protection if the right and freedoms of others
Article 10- the protection of the reputations and rights of others
What must the law of defamation ensure is balanced?
Article 10 (freedom of expression) and Article 8 (Right to private and family life)
What are the types of defamation?
Libel (defamationary statement appears in permanent form)
Slander (defamationary statement appears in non-permanent form)
Give a case example of Libel defamation
Monson
( C had been foudn not guilty of murder, however a wax worker of C holding a gun had been made and put in Madame Tassauds next to convicted murders. This was libel defamation, however later evidence found that C had actually consented and therefore no defamation of character
What is the main act governing Defamation?
Defamation Act 2013
What are the 5 elements required for a successful defamation claim?
1) Defamatory Statement
2) Reference to the Claimant
3) Publshied
4) Seriosuness/ potential for harm
5) Statement is false
What is meant by a “defamatory statement”?
= No statutory definition
However case law has provided guidance over the years
Sim v Stretch
Lord Atkin “ ….. would the words tend to lower the claimant in the estimation of a right thinking member of society generally?”
= this has led to mean that, the defematory statement must be read as a whole, and that the right thinking member of society would have to be that of the time
=Not how the person feels but the impression a “right thinking member of society” at that time would have = objective test, C does not have to prove that the defamatory statemet did have an effect, simply that it could
What is arguably a flaw to the objective test regarding if it is a defamatory statement?
= S.11 Defamation Act 2013 statees that defamation cases are tried by judges not a jury, unless in excpetional circumstances
Therefore, the judge must consider what the right-thinking members of society, at that time, would have thought
e.g Cassidy (1929) A man and women were phtographed together stating they were to be married. Mrs Casidy sued for defamation as it implied she was a living sin, a serious social problem in the 1920s
What happened in the case of Bryne?
C was a member of a golf club which kept illegal gambling machines on the premises. Someone reported them to the police, later a peom impling D had done so appeared around the club, C sued for defamation and won. However on appeal it was held that it was defamatory as a right-thinking member of the public would not think less well of telling the police about illegal activity
Regarding the defamatory statement, does it have to be directly addressed to C?
No can be through implications, knwon as “innuendo”
this is where on the face of it, it does not appear to be defamatory however with relevant information/ knowledge a reader may reacha defamatory conclusion
e.g Tolley (C was an ametuer golf player about to play in a competition which stated the players cannot accept money to advertise products. D used a cartoon of C to promote product, and C succeeded that it is innuendo defamatory as readers seeing the AD will assume the C recieved money.
How must the C show that the dematory statement refers to them?
By showing that an ordinary and reasonable listner/ reader would take the statement and understand if refers to C
=easily established if named
HOWEVER, C can be defamed by accident if they have the same name etc even if the story is fictious
e.g Hulton
C had same name as a fictional character, and sued for defamation after the newspaper made it appear he had cheated. Though he was unmarried, C was awarded damages as he had previous connections with the newspaper as well as a witness stating after reading the newspaper they thoguht it was refering to C.
What have the courts confirmed regarding whether the defamatory statment seems to regard to C through photos?
No defamation as it would impose an impossible burden and be an unjust inference with Article 10.
Is it possible to defame a group?
Yes however successful often depends on the number in the group.
e.g Eastwood “All lawyers are theives” = group too big
What happend in the case of Knupffer?
D published an article describing the Young Russian party as facist orgnaisation. Grou[ had around 2000 members and around 24 in UK. C living in London a member of the group sued fro defamation claiming it defamed him personally. HL refused claim, it was based toward a large class of people
What happened in case of Riches?
The News of the wolrd made alleguations about the Banbury CID. No police officers mentioned by name but the size of group deemed small enough for defamation.
What is the laws view regarding the defamatory statement being Published?
Only be published if D communicates it to somone other than C
Note there is an exception to spouses/ civil partner (absolute priviledge)
However, Defamation only requires one other person to see it/ hear it and understand it
Therefore the publication requirement reinforces the purpose of defamation which is to protect the reputation of an individual in the eyes of others
How can D esacape liability regarding the publication aspect of defamation?
If D can establish it was not possible to forsee that publication would occurr
e.g Huth v Huth
A letter was sent from to D to C (who were married) . C’s butler had opend the letter and read it (which was outside there duties) before handing it to C. This was not treated as defamation as D could not forsee the butler’s behaviour.
What did S.8 Defamation Act 2013 do?
Repealed the Multiple Publication Rule- the longstanding principle that each publication of defamatory material gives rise to a seperate cause of action
PRESENT= single publication rule which sets a 1 year time limit on eligible claims from where the material wasfirst published, however this does not apply where the manner of the subquent publication is “materially different”
What was confirmed in the case of Metropolitan International Schools?
Not usually to sue search engines for search results that led to a defamatory statement. With the court stating that google took an “entirely passive role”
What does S.1 (1) Defamation Act 2013 set?
“Threshhold for seriousness” and states “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the C”
=helps to protect freedom of express as only serious damages to reputation are considered
What is the last element to defemation?
The statement is false
What are the 7 defences to defamation?
1) Truth/ Substantial true
2)Honest Opinion
3)Public interest
4)Absolute Priviledge
5)Qualified Priviledge
6)Volenti
7)Innocent Publication
What is the truth defence?
S.2 Defamation Act 2013
“It is a defence ….. if substantial true”
The law requires that D establishes the central defamatory thrust of the statement is true (D will still have a defence if there are a few inconsistencies)
What happened in the case of Gecas? (truth defence)
Scottish tv production said that C was involved in war and crimes and “finished off” those who were still alive in the burial pits. The TV statement could not prove the final statement but could provide facts for the main statement. Therefore, it was deemed “substantial true”
What happened in the case of Charleston and Smith (truth defence)?
The C’s were Australian actors from neighbours. The news of the world published photographs of C’s heads on bodies engaged in sexual activities, with a defamatory headline. The superimposed images had been made without C’s consent. The article below the images made it clear that the images were not real. However, the issue was the inferences drawn by ordinary, right thinking members of society. It was agreed if the reader read beyond the headline it would become clear. HL held that the article must be taken as a whole, where the truth then would become clear
What is the honest opinion defence?
S.3 Defamation Act 2013
Gives protection over Article 10 and allows for statements of opinion to not be defamatory provided that 3 conditions are met: (via objective test)
- the statement was recognisable as containing an opinion
- the statement indicates a basis for that opinion
-An honest person could have held that opinion based on the facts of that time
(this is not about whether the court holds the same opinion, just whether a honest person would hold the opinion)
What is the publication on the matter of public interest defence?
S.4 Defamation Act 2013
Aims to protect the media for when reporting on areas of public interest
This defence will apply when:
-the statement complained of was a mater of public interest
-D must reasonably believe its publication was in the public’s interest
Though in the defence of public interest, the “matter of public interest” is not defined what case explains it?
London Artists
Lord Denning- “whenever a matter is such as to affect people at large, so that they may be legitimately interested in or concerned at what is going on or what may happen to them or others, then it is a matter of public interest”
Where was the defence of public interest originally from?
Reynolds
Which sets out the following factors the court might consider:
-serious of the allegations
-Nature of the information - is it really a matter of public interest
-Source of information- is it from a reliable source
-steps taken to verify information
-Urgency
-tone of the article
-whether comment was collected from C
What is the defence of absolute privilege?
=common law and broadest defence
Statements covered by absolute privilege cannot be used to make a defamatory claim
(this is situations were it is regarded as imperative that people can express their views without fear of legal action= interests of Article 10 over Article 8)
In which situations is there absolute privilege?
Between spouses
Debates in Parliament
Legal Proceedings
Between Senior offices of state
Between solicitor and client
=THIS DEFENCE ONLY COVERS WHO IS MAKING THE STATEMENT
=MEDIA COVERAGE OF COURT PROCEEDING IS COVERED, AS IT IS CLEARLY IN THE PUBLIC’S INTEREST TO REPORT
What is the defence of qualified privilege?
under common law and S.6 Defamation Act 2013
=STATEMENTS UNDER THIS, CANNOT BE USED IN COURT
=there must be a duty or interest between the maker and recipient in the making or receiving of communication = confirmed in Adam v Ward
What happened in the case of Watt (defence of qualified privilege)?
C was the overseas director and D was the director of the same company. A letter was sent to D from a foreign employee suggesting that C was dishonest and immoral, none of this was true. D showed this to the board, but also showed it to C’s wife. Showing the letter to the board was covered under qualified privilege, however showing the wife was not. He had not duty to do such.
What did S.6 Defamation Act 2013 do?
Introduced a new category for qualified privilege attached to statements made under peer reviewed scientific journals. This was aimed at preventing the the stifling of legitimate science debate. Such provisions will be qualified if:
- the statement relates to a scientific or academic matter
-Before the statement was published in the journal and independent review of the statement was carried out by the editor and one or more persons in the scientific area was consulted
What is the defence of Volenti?
common law defence otherwise known as consent
- a person who consents, cannot being defamation e.g Monson
What is the defence of innocent publication (dissemination)?
S.1 Defamation Act 1996
designed to protect printers, sellers and distributors from unfair action against them, it covers those who do not have editorial control over the material they handle
What is an offer to amend?
S.2 Defamation Act 1996
allows D to pre-empt legal proceedings and hopefully avoid them, this allows C to get an apology and compensation without the need to go to court
-this must be D’s first point of call (cannot try a defence, realise it is not going to work and then make an offer)
-However if the offer is not taken it can be sued in mitigation as it shows that D tried to make amends
What is S.11 Defamation Act 2013?
Trial without jury unless the court orders otherwise
Juries were removed after excessive damages were awarded
e.g Wife of Peter Sutcliffe awarded £600,000 in damages for defamation which was later reduced to £60,000
What act gave the CA the power to review damages by juries?
The Courts and Legal Service Act 1990
What is S.12 Defamation Act 2013?
D must publish a summary statement/ of judgment
What is S.4A Limitation Act 1980?
Time limits on actions
Defamation case must be begin in 1 year, however S.32 A Limitation Act 1980 allows for discretion on this time limit
What remedies are available for Claimants?
damage= primary remedy, may be to recover loss or be for exemplary
e.g Elton John
Injunctions= two roles
Before (interlocutory injunction) to prevent the publication of defamatory material if D feels like it is likely
After an successful defamation claim if C can prove there is a real risk of repetition of publication
