Defamation

Question 1

S2 of the DA 2013 says

Answer 1

Harm caused to the reputation of a body which trades to make a profit is not “serious harm” unless it would cause that body serious financial loss

Question 2

Key areas to discuss for an essay

Answer 2

What is serious harm?
What is serious financial loss?
In many years there has been a debate between freedom of speech and defamation
HRA 1998

Question 3

Difference between negligence and defamation?

Answer 3

When defamation has occurred the only relief offered to those whose reputation has been hindered is compensation or an injunction

• negligence the cost of the accident is allocated and thus the cost of damage

Question 4

Meaning of defamation

Answer 4

Publication of a statement with defamatory meaning which refers to the claimant!

Remember: PDC publication, defamatory and claimant

Question 5

There are two different forms of defamation which are?

Answer 5

Libel and slander

Question 6

What is libel?

Answer 6

Written words, pictures, statutes, waxworks (monson v tussauds 1894)

Radio broadcasts and TV: DA 1952 and broadcasting act 1990

Public theatrical performance: theatres act 1968

Question 7

What is slander?

Answer 7

Generally spoken words, although would Internet and recordings fall into this?

Question 8

Libel is action per se, what does this mean?

Answer 8

Means that there is no need for “special damage” I.e, purely economic loss, however this contradicts s 1 and 2 of the DA 2013

Question 9

Slander does need special damage except for?

Answer 9

Attributing a crime - Webb v Beavan 1833

Attributing business incompetence Jones v Jones 1916

Note that the DA 2013 abolished imputation of infectious disease and unchasitity as recognised exceptions

Question 10

What are the three elements needed to prove in both slander and libel?

Answer 10

Publication
Defamatory meaning
Referring to the claimant

Question 11

1) defamatory meaning

Answer 11

Hard to define; there is no definition as such, Lord atkin created a test in Slim v Stretch 1936 - “would the words tend to lower the claimant in estimation of right thinking members of society”

therefore the objective element provides that if the only people who would think badly of the claimant are not right thinking then defamation is not existent - Byrne v Dean 1937

Question 12

What about newspaper readers?

Answer 12

Ordinary readers are people who aren’t unduly suspicious, not avid for scandal who will not select a bad meaning when other non defamatory meanings are available (Hartt v Newspaper Publishing Plc 1989)

Question 13

Issue of ridicule in a news paper

Answer 13

Berkoff v burchill 1996 had been called hideously ugly - the court held that it is for the jury to decide in what context the words complained of were used and whether they were defamatory in the context. It was held to be defamatory in this case because the claimants profession was acting thus to be called hideously ugly exposed him to ridicule,

Question 14

Neil J in berkoff v burchill 1996

Answer 14

It is necessary in some cases to look at the occupation of the claimant because even though they do not effect his business efficiency or impute a lack of skill about the claimant or disgraceful conduct they may be defamatory if they exclude him from society or expose him to ridicule. Although insults which diminish a mans standing with other people will not suffice. Thus context is key!!!!

Question 15

Innuendo means v

Answer 15

natural and ordinary meaning of wording often have meanings relaing to reading between the lines

Question 16

True innuendo?

Answer 16

Meaning only available to those who have knowledge of certain additional facts outside of the statement

Cassidy v Daily Mirror 1929
X announced his engagement in the paper to Y, which was published by D the newspaper, Unknown to D, A was the wife of X so her acquatainces estimations of her lowered thus D must take the consequence of this defamation

Question 17

False innuendo?

Answer 17

A matter of implication from the words, can be a form or an aspect of their ordinary meaning

Lewis v daily telegraph 1964

If the words used are considered incapable of the meaning alleged by the claimant then issue of defamatory meaning will not be left to the jury and the claim fails

Question 18

2) referring to the claimant

Answer 18

A statement need not mention the claimants name in order to understand it to be referring to them. Can happen by implication which may happen through knowledge of special facts, provided some people are aware of those facts, this can be a small group!

Question 19

Hulton v Jones 1910

Answer 19

The intention of the defendant doesn’t matter if there is libel then it is strict liability

Question 20

Morgan v Odhams Press 1971

Answer 20

It is important that would a sensible reader having knowledge of special circumstances understand the words as referring to the claimant?

Question 21

Aspro Travel Ltd v Owners Abroad Group 1996

Answer 21

Can apply to an identifiable not too large group, a member of that group can sue if the group isn’t too large, or the defamatory statement refers to them individually

Question 22

3) publication

Answer 22

If the defamatory statement is made available to any other party than the subject concerned then it has been published. This counts even if it has been made only to one other person (slim v stretch)

• Huth v Huth 1915 limits publication ie.remoteness where butler opened up a letter when unauthorised to do so

Question 23

Is the claimants or defendants spouse included?

Answer 23

No

Question 24

Chain of causation

Answer 24

Republication or repetition can break the chain of causation if unauthorised, every new publication counts as publication and is actionable!

Question 25

Innocent dissemination defence

Answer 25

Vizetelly v MSL ltd 1900 - newsagents, libraries, book sellers can claim the defence if they distributed defamatory things containing libel unless he known or ought to have known that it did, D had no reason to think it would have and they weren’t negligent in the absence of knowledge

Question 26

S1 of DA 1996 widened the defence of innocent dissemination

Answer 26

Widened the defence to mechanical distributors eg. Printers and tv broadcasters

Question 27

S8 DA 2013 single publication rule

Answer 27

Particularly relevant to online publications

Statutory limitation = 12 months after the initial publication (prior to this rule each click was a new publication)

Question 28

Defamation and the European convention of human rights

Answer 28

ECHR art10 (1) - negative right: there is a right not to interfere with a persons freedom of speech (under freedom of expression)

However in art 10(2) :
Freedom is subject to conditions including for the reputation or the rights of others

This is a balance for the social needs for society to be able to have freedom of speech under expression however to do so you must not interfere with another’s personal right and thus tarnish their reputation

Question 29

Who can sue for defamation?

Answer 29

Companies and individuals can sue based on their reputation, companies = commercial reputation

Question 30

s11 of the DA 2013

Answer 30

There is no need for a jury anymore

Question 31

S8 (2) and (3) of DA 1996!!!

Answer 31

Court can dismiss a claim if there is no realistic prospect of success (2) and (3) if there is no defence available to the defendant

Question 32

Defences under the DA 2013 s2-7

Truth s2

Answer 32

It’s a defence of the imputation of the statement is substantially true (this is a burden for the d to prove)
- truth = takes absolute privilege

Question 33

S3 defence of fair comment

Answer 33

D has to show that:

1) the statement was of opinion
2) the statement provided either generally or specially that it was an opinion
3) an honest person could have held that opinion on any fact which existed at the time of publishing the statement, any statement which was privileged before the complained published statement

Question 34

S4 and s6

Answer 34

It must be for the public’s internet, if it is an opinion in a scientific or academic journal; then it must contain scientific or academic matter and be reviewed to ensure this

Question 35

S5 of the DA 2013 operations of websites

Answer 35

Brings defamation into the modern age!!

• defence is available if the operator can show that it was not the operator who
  Posted it but
• the defence is defeated if C shows
  Not possible for C to identify who posted it
  C gave operator notice of complaint
  Operator failed to recognise the complaint and respond

Question 36

Also in s2 is amendment

Answer 36

This is relevant where the D has unintentionally published a defamatory statement in a newspaper etc

Defence available if the defendant can admit they were wrong, offer a published apology, does this, and pays compensation if need be

Question 37

Additionally to innocent dissemination

Answer 37

Fair comment = it is qualified privilege because if the maker of the statement was openly providing an opinion and speaks honestly without malice then the law protects him e.g. A reference from an employer for an employee

Malice was defined in Horrocks v Lowe 1975 which stated: it’s a knowing publication of falsehood or desire to injure the C which was why it was published

Question 38

Also absolute privilege is given to truth

Answer 38

Covers things to do with parliament and judicial proceedings but to some extent doesn’t this go against the ECHR? Although public policy would come further because the truth about the people who run the country should be published in order for the people to know the truth about who they are voting for in a democratic society

Question 39

What did the 2013 act so?

Answer 39

• Includes requirements for serious harm before suing
• removed the need for a jury trial
• new statutory defended of truth and honest opinion which replaced the common law justifications and fair comment
• introduced responsible publication for the public interest
• increased protection for operators of websites that host user generated posts eg, Twitter and Facebook

Question 40

S1 of Defamation ACT 2013 days

Answer 40

A statement is not defamatory unless it has caused or is likely to cause serious harm to the claimants reputation