Defamation Flashcards
What are the two presumptions for words to be defamatory?
First presumptions is that the statement is false and the second presumption is that the statement is malicious.
The process of defamation is divided in to two stages, what are they?
(a) Question of law, for the the court and at debate.
(b) Question of fact for proof or jury
What s meant by an innuendo in defamation?
The precise defamatory meaning which the pursuer attaches to the words
What are the key elements of defamation?
Damage to reputation, insult and affront.
What did Lord Atkin state in the case of Slim v Stretch 1936
“Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally”
What is the basis for liability in defamation.
Malice is the basis and the liability is strict here.
What was held in the case of Cuthbert v Linklater 1935?
This case was based on a work of fiction that depicted the real life person of Wendy Wood who was at the forefront of Scottish home rule movement. She was offended that the story portrayed that she would enter a mens bathroom and the courts held that this was an innuendo that Wendy Wood lacked womanly delicacy.
Was there an innuendo in the case of Liberace v Daily Mirror 1959
Yes it was held that their review on Liberace’s performance implied that he was homosexual. Liberace won his case on the basis the reasonable man would have derived that from the words written.
What are seen as the questions of fact for proof or jury when pursuer is defamed by the words?
(a) Whether the statement refers to the pursuer
(b) Whether that statement is false
(c) Whether on a proper construction in all the circumstances of the case the statement is defamatory of the pursuer.
What did the case of Christie v Robertson establish?
That words spoken in anger/in rixa, to be defamatory have to be seriously intended.
Define ‘Veritas convicii excusat ‘
Trush excuses insult.
Is ‘Veritas’ a smart defence to plead?
‘Veritas’ is seen as a hazardous defence to embark upon. Persons would be advised not to run this defence unless extremely confident they were right
The case of Baigent v BBC 2001 was a failed attempt at pleading ‘Veritas’. What happened?
Baigent family took exception to what was said about them. Their reputation was seriously attacked. They were successful and awarded aggravate damages which were high.
What does the Defamation Act 1952 s.5 state?
That where separate and distinct allegations have been made, veritas will not fail simply because the truth of all charges is no proved so long as those unproved do not stand alone as a separate defamation.
What defence does s1(1) provide under the Defamation Act 1996?
If the defender can prove that the;
(a) Defender is not the author, editor or publisher and…
(b) That defender took reasonable care in the circumstances or…
(c) That defender did not know/have reason to believe that what they did caused or contributed to publication of defamatory statement
Who does s1 protect under the Defamation Act 1996?
It protects persons who are not either;
(a) The author, editor, publisher and has no responsibility for publication FULL DEFENCE APPLIES
(b) The author, editor or publisher and is responsible for publication then they do have a defence IF reasonable care taken and they did no know.
Under s.2 of the DefamationAct 1996 what can a defender do?
A defender can offer to make amends by correcting the statement, publishing an apology and paying compensation.
Can liability attaches itself to other in defamation?
Yes, liability will attach to any person posting a defamatory statement on social media or online.
What were the facts of Lord McAlpine of West Green v Bercow
Allegations were made against Mcalpine. Bercow made a comment on social media asking ‘why he was trending’ Bercow was successfully sued for defamation as it was obvious wha the tweet meant.
What must an internet intermediary do on discovering defamatory material?
To have a s.1 defence they must remove the defamatory material when they discover its true nature.
What piece of legislation provides some protection against damages and criminal charges in respect of ‘internet defamation’?
The act is the Electronic Commerce (EC Directive) Regulations 2002
Who does the Electronic Commerce (EC Directive) Regulations 2002 protect?
Reg 17- Providers who operate as conduit for information only - they have complete protection
Reg 18 Providers who cache information, defence where on discovery access if removed or disabled
Reg 19 - Providers who host information where they act promptly to remove or disable on discovery
Can defamation be prevented from even happening?
Yes, if defamation is threatened against you, you are not obliged to wait until it is to sue for damages, an interdict can be sought.
Is there a defence to defamation where a comment may be in the public interest?
Yes, public interest overrides private interests. People are entitled to make fair comment where the public may be interested in what they say.
