Defamation

Question 1

What are the two presumptions for words to be defamatory?

Answer 1

First presumptions is that the statement is false and the second presumption is that the statement is malicious.

Question 2

The process of defamation is divided in to two stages, what are they?

Answer 2

(a) Question of law, for the the court and at debate.

(b) Question of fact for proof or jury

Question 3

What s meant by an innuendo in defamation?

Answer 3

The precise defamatory meaning which the pursuer attaches to the words

Question 4

What are the key elements of defamation?

Answer 4

Damage to reputation, insult and affront.

Question 5

What did Lord Atkin state in the case of Slim v Stretch 1936

Answer 5

“Would the words tend to lower the plaintiff in the estimation of right­ thinking members of society generally”

Question 6

What is the basis for liability in defamation.

Answer 6

Malice is the basis and the liability is strict here.

Question 7

What was held in the case of Cuthbert v Linklater 1935?

Answer 7

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.

Question 8

Was there an innuendo in the case of Liberace v Daily Mirror 1959

Answer 8

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.

Question 9

What are seen as the questions of fact for proof or jury when pursuer is defamed by the words?

Answer 9

(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.

Question 10

What did the case of Christie v Robertson establish?

Answer 10

That words spoken in anger/in rixa, to be defamatory have to be seriously intended.

Question 11

Define ‘Veritas convicii excusat ‘

Answer 11

Trush excuses insult.

Question 12

Is ‘Veritas’ a smart defence to plead?

Answer 12

‘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

Question 13

The case of Baigent v BBC 2001 was a failed attempt at pleading ‘Veritas’. What happened?

Answer 13

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.

Question 14

What does the Defamation Act 1952 s.5 state?

Answer 14

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.

Question 15

What defence does s1(1) provide under the Defamation Act 1996?

Answer 15

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

Question 16

Who does s1 protect under the Defamation Act 1996?

Answer 16

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.

Question 17

Under s.2 of the DefamationAct 1996 what can a defender do?

Answer 17

A defender can offer to make amends by correcting the statement, publishing an apology and paying compensation.

Question 18

Can liability attaches itself to other in defamation?

Answer 18

Yes, liability will attach to any person posting a defamatory statement on social media or online.

Question 19

What were the facts of Lord McAlpine of West Green v Bercow

Answer 19

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.

Question 20

What must an internet intermediary do on discovering defamatory material?

Answer 20

To have a s.1 defence they must remove the defamatory material when they discover its true nature.

Question 21

What piece of legislation provides some protection against damages and criminal charges in respect of ‘internet defamation’?

Answer 21

The act is the Electronic Commerce (EC Directive) Regulations 2002

Question 22

Who does the Electronic Commerce (EC Directive) Regulations 2002 protect?

Answer 22

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

Question 23

Can defamation be prevented from even happening?

Answer 23

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.

Question 24

Is there a defence to defamation where a comment may be in the public interest?

Answer 24

Yes, public interest overrides private interests. People are entitled to make fair comment where the public may be interested in what they say.

Question 25

What does the Defamation Act 1952 at s.6 state?

Answer 25

That the defence of fair comment applies to comments, not to facts, facts are required to be true to back up a comment made.

Question 26

Who decides what is fact and what is comment?

Answer 26

It is for the reader to decide, in their view as was set out in Rath v Guardian news and media 2008.

Question 27

When no facts are given with comment what is the basis of your defence?

Answer 27

There is no defence, facts mist be given in order to make comments.