Defamation Flashcards
Libel
Permanent statement= written can include, TC, cable, program theater.
actionable: irrespective of whether or not any harm is caused to the C as a result (with the C proving harm)
Slander
Non-permanent statement = spoken words, gesture.
Special damage; C establish loss/harm that is quantifiable in financial terms (job loss, damage to business)
Exceptions to prove Special Damage action
- statement imputes criminal law: Wedd v beaven
- the C has contagious disease: Bloodworth v Gray
- incompetence in business dealings: s.2 of the Defamation Act 1952
- lack of chastity in a women: salnder of women act 1891 s.1
Youssouff v Metro - Goldwin
Russian princess was portrayed in a movie as being raped/seduced by Rasputin. films just has sound. which category would it fall under? slander/libel? it would be Libel. CA: sound was synchronized with the film, it was permanent. Upheld claim.
Manson v Tussauds
M tried for murder but it was held not proven, then he was to be chosen to be displayed in the murderer section of a wax museum. It was held that it would be libel
Who can Sue
natural human beings + companies. McLibel + Jameel v Wall street
Who can Sue in Defamation
natural human beings + companies(legal identity). McLibel + Jameel v Wall street
Who cannot Sue in Defamation
trade union (no legal identity)- EEPTU v Times. a public/governmental body - DerbyShire CC v Times
Role of Judge + Jury
the judge decides whether the statement is capable of bearing a particular meaning and whether that meaning could, in la, be defamatory, the jury determines whether that statement is defamatory. also defense and damages = although this has been criticized
Establishing a Claim in Defamation: Defamatory Statement
Makes others think less of a person: Sim v Stretch - “ lower the C in the estimation of right thinking members of society in general causing them to be shunned or avoided
Establishing a Claim in Defamation: Defamatory Statement - Cassidy v Daily Mirror
a married women was depicted as unmarried thus she was living in sin
Establishing a Claim in Defamation: Defamatory Statement - Charleston v News Group
D not liable in defamation for an article furthering, degrading, faked photos of the C, accompanying the text made it clear that the photos were fake and people would be able to pick up on it.
Berkoff v Burchill
“hideously Ugly”
Neill LJ; hideously ugly could be defamatory even though they neither impute disgraceful conduct of the C not any lack of skill or efficiency in the conduct of his trade/business activity. if they hold him up to contempt, scorn/ridicule/exclude him from society
Establishing a Claim in Defamation: Statement must be about C - Hulton + co v Jones
Name/identify with the statement - no intention of reference to the C
- published fictional story of a motor festival, used a name in which that person did existed and sued. claiming people/his friends would read it and think it was him
Establishing a Claim in Defamation: Defamatory Statement - O’Shea v MGN
advertisement for adult interest service featuring a model who resembled the C. Sued for libel; people who did not realize that the model in the advert was no in fact her, people would conclude she consented highly to a pornographic website. engaged ECHR article 10-> wasn’t good enough, cant burden every newspaper.
Establishing a Claim in Defamation: Defamatory Statement - Knuppfer v London express newspaper
D newspaper refereed the quisling activities of the young Russian political party. only 24 British members. readers would assume that the remark refers to the C. Rejected by HL; article only refereed to the parties activities in France/ USA. several through members.
Two people/Same Name - Newstead v London Express News
2 “harold Newstead” one was convicted of bigamy, and the other brought an action for libel in the basis that it was untrue in relation to him. Held - was defamatory; reasonable person would think it refereed to him
Establishing a Claim in Defamation: Statement needs to be published/ Third party - Theaker v Richardson
D wrote C a letter accusing her of shoplifting, her husband opened it. C sued for libel. jury found it reasonably foreseeable that someone other than the C might open it.
Establishing a Claim in Defamation:Statement needs to be published/ Third party - Huth v Huth
man sent wife a letter, was defamatory, butler opened it. CA not foreseeable that butler would open it “ not apart of butlers duties”
Establishing a Claim in Defamation:Statement needs to be published/ Third party - Huth v Huth
man sent wife a letter, was defamatory, butler opened it. CA not foreseeable that butler would open it “ not apart of butlers duties”
Establishing a Claim in Defamation:Statement needs to be published/ Third party - McManus v Backham
Victoria Beckham allegedly said to others in a memorabilia shop that it was forgery. her statement was repeated. CA liability should be imposed only where the D is aware that what they say will be reported, should have appreciated a risk of this happening. repetition of the statement would increase the damages of the C
Establishing a Claim in Defamation:Statement needs to be published/ Third party - Slipper v BBC
police officer involved in attempts to bring Ronnie Briggs back to UK from Brazil. BBC documentary portrayed him as a “incompetent baffon” press reviews used this. CA strike down the claim. where the repetition of the libel is a natural/probable sequence of the original, the original publisher will remain liable
Publications on the internet
each/every time an internet used access defame material, new case of action
limited to a period of 1 year fro publication. person who is defamed has 1 year to bring an action. hard copy rule; every time its accessed online it is a new publication
Defenses to Defamation: Privilege
Allows people to speak and crucially publish with out fear of defamation proceedings in circumstances where it is important that people are able to speak freely
- providing immunity from actions for defamation
Defenses to Defamation: Absolute Privilege
n; ao action can be take against a person who makes a statement
- statement in parliament
- reports/papers/votes/proceedings ordered to be published by either house or parliament.
- judicial proceedings
- reports of court proceedings in the UK
- communications between certain officers of state (s. 13 Defamation act 1996; allows MPs to waive their rights to parliamentary privilege to allow them to sue or be sued.
Defenses to Defamation: Absolute Privilege - Buckley v Dalziel
Held absolute privilege was available to a person who provided into to the police even though the C alleged that the statement made to the police was defamatory
Defenses to Defamation: Qualified Privilege
relied on by media, protect the publisher of a statement where it is in the public interest, made without malice.
- turn to the relationship between the giver and recipient of the relevant information
- s. 6 +7 of defamation act 1996; deal with the protection under privilege
Defenses to Defamation: Qualified Privilege - Horrocks v Lowe
“what is malicious”
C complained of alleged slander spoken at a meeting of town council
Reynolds v Times Newspaper - Qualified Privilege
- considered whether media reporting should be protected by a new category of qualified privilege relating to political information - s.12(4) HRA
- Facts; times published article in Ireland stating Reynolds, former Irish PM misled Irish in parliament. Reynolds brought an action for defamation
Reynolds v Times Newspaper - Qualified Privilege - Legal Principle
Lord Nicholls - list of 10 criteria which attempts to use the Reynolds defense should be judged
- seriousness of allegation
- nature of information
- source of information
- steps taken to verify information
- status of information
- urgency of the matter
- comment sought from P
- article contained P side of story
- tone of article
- circumstances/publication/timing
- criticized; little to foster on editors confidence in publishing
Reynolds v Times Newspaper - Qualified Privilege - Legal Principle
Lord Nicholls - list of 10 criteria which attempts to use the Reynolds defense should be judged 1. seriousness of allegation 2. nature of information 3. source of information 4. steps taken to verify information 5. status of information 6. urgency of the matter 7. comment sought from P 8. article contained P side of story 9. tone of article 10. circumstances/publication/timing - criticized; little to foster on editors confidence in publishing THIS DEFENSE WAS ABOLISHED WHEN DEFAMATION ACT 2013 CAME INTO FORCE
Reynolds v Times Newspaper - Qualified Privilege - Legal Principle
Lord Nicholls - list of 10 criteria which attempts to use the Reynolds defense should be judged 1. seriousness of allegation 2. nature of information 3. source of information 4. steps taken to verify information 5. status of information 6. urgency of the matter 7. comment sought from P 8. article contained P side of story 9. tone of article 10. circumstances/publication/timing - criticized; little to foster on editors confidence in publishing THIS DEFENSE WAS ABOLISHED WHEN DEFAMATION ACT 2013 CAME INTO FORCE
Jameel v Wall Street
Reynolds defense upheld.
Suspicious bank accounts, possibility funding terrorist organizations. public interest? Justifiable? responsible + fair?
Baroness Hale; we need more serious journalism in this country + our defamation law should encourage rather than discourage it
Innocent Publication/ Dissemination
repetition of statement = new cause of action. statutory defense to those who are not author/editor.
- prior to DA 1996; as long as they didn’t know it was/had defamatory words
Innocent Publication/ Dissemination - Bunt v Tilley
internet provider which performed no more than passive role in facilitating posting on the internet could not be deemed to be a publisher at common law
Consent
a person who consents cannot bring a claim
Justification= TRUTH DA 2013 s.2
show the impression of ordinary person was the correct impression. Burden is on the D, not the C, in showing it is untrue, simply “sting of the statement”
Justification= TRUTH DA 2013 s.2 - Sutherland v Scope
was the statement true in substance + in fact - small enactments
Justification= TRUTH DA 2013 s.2 - Chase v Newsgroup
D does not have to prove that every word was true, but the substantial truth
Fair Comment = Honest Comment
there will be a complete defense if the defamatory statement is an honest comment on a matter of public interest Requirements 1. Opinion not fact 2. public interest 3. honestly held
Honest comment Requirements: Opinion not fact
opinions are necessarily dependent on an individuals values and preferences. difficulty in distinguishing fact and opinion
Honest comment Requirements: Opinion not fact - British Chiropractic Association v Singh
D published article about C, C sued for libel + S relied on fair comment (at the time) for defense.
Court; whether it were assertions of fact (defense would be unavailable) or statements of opinion.
Held; CA “bogus”. no evidence of facts, whether evidence not only exists buy is worthwhile is a value judgement, and so a matter of opinion
Honest comment Requirements: Opinion not fact - Telnikoff v Matusevitch
D wrote a letter to the daily telegraph attacking an earlier article, published in the same paper and written by the C, as racist and anti-Semitic. HL held; the D could not rely on portions of the article which had not been quoted in his letters in support of a defense of fair comment
Honest comment Requirements: Opinion not fact - Telnikoff v Matusevitch
D wrote a letter to the daily telegraph attacking an earlier article, published in the same paper and written by the C, as racist and anti-Semitic. HL held; the D could not rely on portions of the article which had not been quoted in his letters in support of a defense of fair comment
Honest comment Requirements: Opinion not fact - Joseph v Spiller
musicians, instead of booking with agent, venue booked with the band, because he was rude and ignorant (the agent). D (the agent) said they were in breach of re-engagement clause in their contract.
CA: in public interest, they rejected the defense of fair comment on the basis that it was not a comment on facts truly statement
Honest Comment Requirement: public interest - London Artists Ltd v Littler
Lord Denning;”public interest is understood very broadly defined as such as to affect the people at large, so that they may be, legitimately interest in or concerned at what is going on” it extends to films/books/music
Honest Comment Requirement: Honestly Held -Reynolds
Lord Nicholls - comment must be relevant to the facts to which it is addressed.
- the D does not need to prove their honesty, it will be presumed and it is for the C to attempt to disprove it.
THIS DEFENSE WAS ABOLISHED IN DEFAMATION ACT 2013
Honest Comment Requirement: Honestly Held -Reynolds
Lord Nicholls - comment must be relevant to the facts to which it is addressed.
- the D does not need to prove their honesty, it will be presumed and it is for the C to attempt to disprove it.
THIS DEFENSE WAS ABOLISHED IN DEFAMATION ACT 2013
Offer of Amends - unintentional defamation
publisher believed it to be true
Offer of Amends - unintentional defamation - Cassidy v Daily Mirror
photographed with another women, who he was going to marry, while, he was still married. no defense, you didn’t intend to do it if you did. Not strictly a defense aimed at showing that the defamatory statement was justified/excusable.
- D can acknowledge they were wrong/preventable claim from going further
S.2 of the Defamation act 1996
D must... - admit they were wrong - offer in writing correction/apology - publish correction - pay the C Example - Daily express + daily stars; apology of Madeline McCann parents thought they contributed to her death.
Remedies: Damages
primary remedy in defamation, amount appears out of the proportion with those awarded for person injury
- decided by the jury/judges have been able to inform juries of the level of damages in personal injury cases as a way of trying to guide their decision and prevent disproportionate libel awards
Remedies: Damages - John v MGN
published story about Elton John having eating disorder, untrue. judge reduced exemplary damages and compensatory damages
Remedies: Injunction
preventing someone from taking steps, D who fails to comply with it can be imprisoned for contempt of the court
- interlocutory injunction: prevent publication of defamatory material, if a is aware that it is likely
- injunction; after a successful defamation claim, if C can establish that there is a real risk of repetition of the publication
Remedies: Injunction- Greene V Associated Newspaper
Held: HRA 1998 had not affect the rule that a court would not grant an interlocutory injunction to restrain the publication of an allegedly defamatory statement unless it was clear the alleged libel was untrue
Remedies: Injunction- Greene V Associated Newspaper
Held: HRA 1998 had not affect the rule that a court would not grant an interlocutory injunction to restrain the publication of an allegedly defamatory statement unless it was clear the alleged libel was untrue
Defamation act 2013 s.1
requires serious harm, needs to be published. C is a profit making body harm = serious financial loss
Defamation act 2013 s.2
defense of truth; statement is substantially true.
Defamation act 2013 s. 3
defense of honest opinion; show that…
- statement of opinion - honest person could have held the opinion based on any fact which existed at the time that the statement was published
- indicated the basis of opinion
- if the D did not hold opinion, defense is defeated
fair comment is abolished
Defamation act 2013 s. 4
public interest defense; D reasonably believed that publishing that statement was in public interest
- Reynolds Defense is abolished
Defamation act 2013 s.5
Websites : notice and take down procedures
- poster can be identified, served with legal proceeding there is a complete defense, website operate and C must pursue poster
- poster is anon + operator received complaint, operator must respond to C
- unless operator decides that it wants to defend the content, it will need to remove the content complained of
Defamation act 2013 s.6
protection for academics/scientists content which is privileged
Defamation act 2013 s.7
extends circumstances which defense. Absolute or Qualified privileges available
Defamation act 2013 s.8
single publication rule - C prevented from bringing an action in relation to publication of same material by same publisher after expiry of 1 yr. from the date of the first publication
Defamation act 2013 s.9
libel tourism; of all places in which statement complained of has been published England and Wales
Defamation act 2013 s.10
secondary publishers - Prohibits defamation brought against secondary publishers except where it is not reasonable
Defamation act 2013 s.11
jury trials; removes the presumption of trail by jury
Privacy and Misuse of Private information
HRA 1998; incorporates article 8 of the ECHR - basic right to respect privacy.
HRA Article 8:
1. everyone has the right to respect private and family life/home
2. no interference by public authority with the exercise of this right if its in accordance with law it is necessary in a democratic society
Privacy
HRA 1998; incorporates article 8 of the ECHR - basic right to respect privacy.
HRA Article 8:
1. everyone has the right to respect private and family life/home
2. no interference by public authority with the exercise of this right if its in accordance with law it is necessary in a democratic society
Breach of Confidence
existed in equity no tort before HRA 1998
- disclosing info given in confidence would be unconscionable
3 requirements to prove breach
1. info necessary qualified of confidentiality - AG v Guardian
2. obligation to keep info confidential
3. interest in confidentiality must outweigh the public interest in disclosure - W v Edgell
Breach of Confidence; Exemptions
3 main exceptions (AG v Guardian) in which confidence will not apply
- inform public domain
- info is useless/trivial
- averriding public interest in publishing/disclosing information
Misuse of Private Information/ Campbell
Defined by Campell v Mirror group
-Campbell: did not take drugs, newspaper disclosing otherwise, included photos of her at the rehab clinic, sued for breach of confidence.
Confidential relationship was no longer needed/necessary, breach had developed more
Breach of Confidence Requirements
two requirements for tort
- C have reasonable expectation of privacy
- court must balance interest: keeping info (privacy) and revealing into (public interest)
