Defamation

Question 0

Libel

Answer 0

Defamatory material which is in permanent form and visible to the eye and published about the claimant to a third party.

-Libel is actionable per se without proof of damage.

Question 1

Defamation

Answer 1

Reflects the tension between freedom of expression and protection of reputation.

*Two torts that protect a claimant’s interest in reputation against defamatory statements- Libel and Slander
Torts of strict liability

Question 2

Statements that are potential Libels by statute

Answer 2

-S4(1) Theatres Act 1968 - publication of defamatory words in course of a theatrical performance amounts to a libel.

S166 Broadcasting Act 1990 - publication of defamatory words, pictures, gestures and other ‘statements’ broadcast on radio or television amounts to a libel

Question 3

Slander

Answer 3

Defamatory material conveyed in a non-permanent or transitory form published about the claimant to a third party.

Actual damage most often must be proven.

Question 4

Defamation Claim the claimant must show that:

Answer 4

1) Defamatory claim.
2) Refers to them
3) Published by the defendant

Question 5

Slanders actionable without proof of damage:

Answer 5

1) Imputation of a criminal offence punishable with imprisonment.
2) Imputation of unchastity or adultery of a woman or girl: Slander of Women Act 1891.
3) Imputation of certain diseases
4) Section 2 of Defamation Act 1952.

Question 6

Sim v Stretch (1936) - Basic definition of defamatory

Answer 6

Lord Atkins ‘would the words tend to lower the plaintiff in the estimation of right thinking members of society generally.’

Question 8

Monsoon v Tussauds (1894)

Answer 8

A defamatory waxwork image of the plaintiff was treated as a potential libel- (semi-permanent form)

Question 9

Youssoupoff v MGM

Answer 9

Film was libel as it was material that would tend to lead to the claimant (woman suggested that she had been raped by Rasputin) being shunned or avoided.

Question 10

Berkhoff v Burchill (1996)

Answer 10

‘Hideous looking’ held to be defamatory by CA as they could hold up the claimant to contempt/ridicule/scorn/exclusion from society particularly if an actor, as the claimant was.

Question 11

False Innuendo

Answer 11

A matter of implication from the words themselves and is an aspect of their ordinary meaning.

Question 12

True Innuendo

Answer 12

Where the words themselves are harmless but become defamatory when considered in light of other material.
Only those with access to the additional material will understand they defamation, however this is immaterial to a success in action.

Question 13

Cassidy v Daily Mirror

Answer 13

D publish a picture of Cassidy and Miss X celebrating their engagement.
Mrs Cassidy brought an action for defamation as it revealed to those in the know that her relationship was not as it seemed.
True innuendo as revealed the status of their relationship to those in the know.

Question 14

Trolley v Fry & Sons (1931)

Answer 14

D published a caricature of the C, a well known amateur golfer, as part of its advertising campaign.
Claimant successfully argued that publication of the advertisement implied that he had received reward for the sum of the picture.
Payment was impermissible for amateurs.

Question 15

2) Defamation: Must be a reference to the claimant

Answer 15

• A statement need not mention the claimant by name in order to be understood as a reference to them.
• Reference can occur through implication, however this depends on knowledge of special facts. Valid so long as some people are aware of those facts.

Question 16

Morgan v Oldham Press

Answer 16

Ruled that even though the plaintiff was not referred to by name or even directly implicated, it was held that the report was defamatory as there was a sufficient group of people who knew the plaintiff and that it related to him.

Question 17

Hulton (E) & Co v Jones (1910)

Answer 17

Defamatory statement is actionable even thought it is made entirely innocently.
-libel for defamation does not depend upon the intention of the defamer, but on the fact of defamation.

(D published a fictional story about an Artemis Jones, a church warden of Peckham who indulged in some undignified frolics.
Barrister of the same name sued in libel alleging that people thought the tale referred to him.
D held liable even though it was assumed that they did not know/had no reason to know the real Artemis Jones)

Question 18

Knupgger v London Express Newspapers (1944)

Answer 18

Group Defamation:

- a statement about a group of people can be defamatory to any member of that group.

Question 19

3) Defamation: Publication of the defamatory statement by the defendant to a third person.

Answer 19

Claimant must prove that the DEFENDANT OUGHT REASONABLY TO HAVE FORESEEN THAT THE STATEMENT WOULD COME TO A 3RD PARTY’S ATTENTION.

Question 20

Sim v Stretch

Answer 20

Must have been available to at least one person

Question 21

Theaker v Richardson

Answer 21

D addressed a defamatory letter to the plaintiff who was a married woman.
The letter was sent in a Manila envelope, the same as election addresses.
The husband opens the letter.
Held by the Jury that it was foreseeable that the husband would open the envelope.
D liable for defamation as had published.

Question 22

Huth v Huth (1915)

Answer 22

D was sent a letter.
Letter was opened by butler
CA upholding the Judge held that there was no publication as it was unforeseeable that he would open the letter, not in his remit.

Question 23

Slipper v BBC

McManus v Beckham 2002

Answer 23

D can be liable for any republication of the defamatory material so long as it was reasonably foreseeable

Beckham: - test for republication was whether there was a SIGNIFICANT RISK of republication.

Question 24

Bunt v Tilley

Answer 24

Internet service providers are not liable for defamatory statements, as they are not the publishers they merely transmit the communications without participating in the process.

Question 25

Defences

Answer 25

-S.s.4 Defamation Act
Justification of truth
Fair Comment

Question 26

Ss4 Defamation Act

Answer 26

Unintentional defamation: 
D didn't know the words referred to C; 
Didn't know they were false or defamatory of C
D must offer to make amends, I.e. 
*Correction *Apology *Compensation

Question 27

Justification of truth

Lucas-Box v News Group Newspapers 1972

Answer 27

If the truth of the defamatory meaning can be established then the motive of the defendant publishing it will be irrelevant.
-S8 of Rehabilitation of Offenders Act 1974, exception if maliciously revealed C’s spent conviction, even if true.

Lucas- D need only justify the sting of the allegation.
-the justification must be as wide as the charge.

Question 28

S5 Defamation Act 1952

Moore v News of the World 1972

Answer 28

Where there are 2 or more charges within a statement, the D need only prove the truth of the materially injurious words.

Moore- D is not to fail simply because he cannot prove every single thing in the statement to be true- lord Denning

Question 29

Fair Comment (Opinion): 
Judicial approach towards fair comment is protective

Answer 29

Slim v Daily Telegraph - ‘right of fair comment is one of the essential elements that make up our freedom of speech. We must ever retain this right intact. It must not be whittled down by legal refinements.

Question 30

Lyon v Daily Telegraph

Answer 30

The reason why once a plea of fair comment is established, there is no libel, is that it is in the public interest to have a free discussion of matters of public interest.

Question 31

London Artists v Littler (1996)

Answer 31

The comment must be on a matter of public interest.

Most except those which can be described as genuinely private, will fall within the definition of public interest.

Question 32

Telinkoff v Matusevitch (1992)

Answer 32

The comment must be genuine comment opposed to imputation of fact.
The comment must be capable of being honestly held.
Comment will be fair as long as it is possible that D honestly held that opinion.

Question 33

Kelmsley v Foot (1952)

Answer 33

The facts on which the comment is based on must be set out in the publication.
However, if the facts are generally known to the public, then the defendant need not spell them out explicitly in the publication.
The defendant only needs to prove a sufficiently solid foundation for the comment.

Question 34

Privilege

Answer 34

Statements recognised to be so important that they ought to be made with full confidence that they are beyond the reach of an action in defamation.
STATEMENTS PROTECTED REGARDLESS OF TRUTH OR FALSITY.

Question 35

Absolute Privilege - S14 Defamation Act 1996

Answer 35

Situations in which being able to speak freely is of such public importance.
No action in defamation is possible regardless of the intention of the speaker.
Such as *Parliament *Judicial statements