Defamation Flashcards
Berkoff v Burchill
Test for whether words are defamatory = do the words tend to lower the estimation of C in the minds of right thinking people generally?
s.11 Defamation Act 2013
Abolishes right to trial by jury for defamation
Byrne v Dean
The words must lower C’s estimation in the minds of right-thinking people generally - not just a specific group of people
Lewis v Daily Telegraph
The readership of the publication in which the defamatory words are is taken into account - how the reasonable reader would interpret the words
Charleston v News Group Newspapers
BUT you cannot divide up the readership of each type of publication - just one reasonable reader test for each
Cassidy v Daily Mirror
There is true innuendo where facts or circumstances which are NOT apparent from the words themselves give those words a meaning they would not already have, e.g. for specific group of people with special knowledge
E Hulton v Jones
Strict liability for defamation - whether D meant the words to be defamatory is irrelevant
s.1 Defamation Act 2013
Introduces the serious harm requirement for defamation - a statement is only defamatory if it has caused or is likely to cause serious harm to C’s reputation
s.1(2) Defamation Act 2011
Serious harm for companies = have suffered or likely to suffer serious financial loss
Monson v Tussauds
Lopes LJ - libel generally consists of writing or printing, but this is not necessary. Can be in some other permanent form = key to libel
Thorley v Lord Kerry
Damage to C is PRESUMED in libel; for slander damage is not presumed (apart from 2 exceptions)
So for slander, C must prove damage beyond merely that to their reputation - must be some damage ensuing from that, e.g. losing the company of their friends. Whereas for libel, C only needs to prove damage to their reputation
Gray v Jones
If D makes an imputation of an indictable criminal offence, then damage IS presumed in slander
Jameel v Wall Street of Europe
Companies can sue for defamation using the traditional rules that apply to individuals
Knuppffer v London Express Newspapers
A claim is only actionable for a group of people if a) the defamation singles out one specific individual; or b) implies that every single member of the group was subject to the defamatory words
Knuppffer v London Express Newspapers
Size of the group is a relevant factor for determining whether the defamatory statement was targeted at everyone in the group
Derbyshire County Council v Times Newspaper
Govt. bodies CANNOT sue for defamation
Goldsmith v Bhoyrul
Political parties cannot sue for defamation
E Hulton v Jones
Note that for strict liability, it is also irrelevant that D did not intend to refer to any real person, or even that D was talking about another person for which the statement is true
Newstead v London Express Newspaper
A mere coincidence does NOT prevent D from being liable for defamation
O’Shea v MGN
Defamation does not apply where C just LOOKS similar to another person, unlike where the person has the same name as another (defamation can apply here).
Meaning of ‘Publication’
Publication means that the statement is made to a third party - this is a basic requirement for defamation, as it needs to lower C’s reputation in the minds of right thinking people generally (Berkoff v Burchill)
Byrne v Dean
Publication can occur by omission - where D knows that the defamatory statement is there and does not take reasonable steps to remove it, then they can still be liable
s.8 Defamation Act 2013
Introduces the single publication rule - once the defamatory statement is published for the first time, that is the ONLY time which the law will regard it as being published. This is relevant for the time period in which a claim must be brought for defamation
s.8(5) Defamation Act 2013
But note that s.8(5) sets out an exception to the general single publication rule - if the defamation is materially different in a subsequent publication, then a new claim may arise
s.10 Defamation Act 2013
Statutory defence for distributors - distributors cannot be liable for defamation UNLESS it is not reasonably practical for C to bring the action against the author, editor or publisher
s.2 Defamation Act 2013
Sets out the defence of TRUTH. s.2(1) provides the test which is that the statement must be “substantially true” for the defence to apply
s.2(3) Defamation Act 2013
If D makes multiple defamatory statements and shows that the ones which could harm C’s reputation are true, then they are NOT liable for the false defamatory statements which do not harm C’s reputation
Stern v Piper
It is NOT sufficient to show that C said certain words or did certain things for the defence of truth to apply - D must actually prove that the specific words are true
Bookbinder v Tebbit
D cannot justify the allegation of a specific defamatory statement by making generalisations about C - e.g. cannot use truth to defend defamatory statement by saying “well C is very promiscuous”
s.3 Defamation Act 2013
Sets out the defence of honest opinion. 3 requirements under s.3:
- Statement of opinion made (not fact)
- Statement indicated the basis of the opinion
- Basis needs to be sufficient for an HONEST PERSON to have been able to hold that opinion
s.3(5) Defamation Act 2013
Defence of honest opinion is defeated if it is shown that C does not actually hold the opinion
s.4 Defamation Act 2013
Sets out the defence for publication on a matter of public interest. D must prove 2 things under s.4:
1) Statement was on a matter of public interest
2) D reasonably believed that publishing the statement was in the public interest (OBJECTIVE TEST)
Reynolds v Times Newspapers
Pre-2013 Act case, but the explanatory notes to s.4 Defamation Act 2013 suggest that the factors are still relevant. Sets out factors to be considered when assessing whether the defence should apply:
- Seriousness of allegation
- Nature of info
- Source of info
- Steps taken to verify the info
- Urgency of publishing
Art.9 Bill of Rights 1689
Defence of absolute privilege - free speech in Parliament cannot be challenged outside of Parliament. Therefore, MPs in Parliament CANNOT be subject to defamation claims
s.2 Defamation Act 1996
Sets out the mechanism by which D can offer to make amends - D offers to pay for defamation, as an alternative to going to court. Offer made in writing, and once C accepts it they can no longer bring/continue a claim
Remedies for Defamation
Damages at large are the primary remedy for a defamation claim - this means that the assessment of damages depends largely on the facts
Broome v Cassell
When D is shown to have made a calculation that committing defamation and being sued would result in profit, the court may award exemplary damages
John v MGN
Possible for the courts to look at damages made in personal injury claims when making defamation - as a guide
Gleaner v Abrahams
But, any comparisons made with personal injury damages should only be a broad comparison/general guide, not strict or conclusive
Scott v Sampson
D can mitigate the level of damages awarded by proving that C already had a bad reputation, so the damage to C was not so severe as to warrant a high level of damages
Bonnard v Perryman
CA held that courts can ONLY grant interim injunctions in very serious cases - courts do not want to violate freedom of expression. So damages are generally the remedy, unless the defamation is very severe
s.4 Theatres Act 1968
Publication of defamatory statement during a play is libel
s.166(1) Broadcasting Act 1990
Publication of words in the course of any programme in a TV service is libel
