Defamation

Question 1

What are the elements of defamation?

Answer 1

(a) Damage to reputation
(b) Insult
(c) Affront (an action or remark that causes outrage or offence)

Question 2

What may defamatory allegations concern?

Answer 2

Non-exhaustive

(a) morality
(b) criminality
(c) dishonesty
(d) financial unsoundness
(e) professional, vocational or business competence
(f) fitness for office

Question 3

What are the requisites if defamation?

Answer 3

The communication of a false statement or idea which is defamatory of the pursuer.

Question 4

What are the two presumptions for words to be defamatory?

Answer 4

(1) First presumptions is that the statement is false and the
(2) second presumption is that the statement is malicious

Question 5

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

Answer 5

(a) Question of law, for the the court and at debate. Where the words actually defamatory
(b) Question of fact for proof or jury. Did the words actually defame the pursuer

Question 6

What is meant by the term innuendo in regards to defamation?

Answer 6

The precise defamatory meaning which the pursuer attaches to the words.

Question 7

Describe the case of Cuthbert v Linklater 1935.

Answer 7

A work of fiction was created in which a woman who was forefront of Scottish home rule movement removes union jack from Stirling Castle and shoves it down a men’s toilet. There was an allegation that this work of fiction was based on real person Wendy Wood. Wendy Wood objected on the basis that the person referred to was her and that she would never go in to a mens toilet. The innuendo in this case being that Wendy Wood showed a lack of womanly delicacy. Held to be defamatory.

Question 8

Describe the case of Liberace v Daily Mirror 1959.

Answer 8

Liberace took exception to an article written by the Daily Mirror. He considered that it contained an innuendo and that the words used were capable of being read in the way that Liberace was a homosexual. HELD - won his case as the the Court determined that the reasonable man would have read the words to mean Liberace was a homosexual.

Question 9

What must be considered in the question of fact for proof or jury on whether pursuer was defamed by words?

Answer 9

(a) whether the statement refers to the pursuer
(b) whether it is false
(c) whether on proper construction IN ALL THE CIRCUMSTANCES of the case the statement is defamatory of the pursuer

Question 10

What did the case of Russell v Stubbs 1913 emphasise?

Answer 10

The innuendo must represent what is a reasonable, natural, or necessary inference from the words used, regard being had to the occasion and the circumstances of their publication

Question 11

What did the case of Christie v Robertson establish?

Answer 11

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

Question 12

Name a case where it was proven that readers understood as referring to a specific person in a defamatory way?

Answer 12

Hulton v Jones.

Question 13

Define ‘Veritas convicii excusat ‘

Answer 13

Truth excuses insult

Question 14

Why is veritas a hazardous defence to embark upon?

Answer 14

Failure may result in aggravated damages e.g. Baigent v BBC 2001.

Question 15

Can liability attaches itself to other in defamation?

Answer 15

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

Question 16

Who does the Defamation 1996 protect?

Answer 16

Those involved in production/distribution/sales.

Question 17

Where can defences be found for people who are not really responsible for defamatory context?

Answer 17

s1(1) of the Defamation Act 1996

s1(2-3) states persons covered

Question 18

Without the 1996 Act who could be liable for defamatory allegations?

Answer 18

People such as Newspaper sellers who do not actually have any influence over the publication.

Question 19

When would the s.1 defence of the 1996 Act apply?

Answer 19

(a) If A is not the author, editor or publisher and has no responsibility for publication then the defence applies
(b) If A is not the author, editor or publisher and its responsible for publication then has defence if reasonable care is taken and did not know.

Question 20

A defender can make an offer of amends as stated by s.2 of the 1996 Act, what does this involve?

Answer 20

(a) Correcting the statement
(b) Publishing an apology and;
(c) paying compensation
IF ACCEPTED ENDS DEFAMATION PROCEEDINGS.

Question 21

If an offer of amends is rejected what happens?

Answer 21

In respect of s4(2) where an offer has been made the defender will have an automatic defence.
s4(3) states the pursuer must prove the Defender did not defamatory allegations were false and defamatory

Question 22

What was emphasised in the case of Lord McAlpine of West Green v Bercow [2013]?

Answer 22

Liability will attach to any person posting a defamatory statement on social media or online

Question 23

What defence to internet intermediaries have?

Answer 23

They have a s.1 defence under the 1996 as long as the defamatory material is removed on discovering its nature.

Question 24

What happened in the case of Godfrey v Demon Internet?

Answer 24

A post was stored on defender’s server where it could be downloaded. Godfrey objected to what was said about him and brought it to the attention of Demon Internet. They did not respond quickly enough. They did have the s.1 defence, however, they were obliged to take it down when made aware or lose the defence.

Question 25

Can defamation be prevented?

Answer 25

Yes, if defamation is threatened against you, an interdict can be sought.

Question 26

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

Answer 26

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

Question 27

For a successful defence of fair comment what must be given?

Answer 27

As the defence applies to comments, facts must be truly stated which is emphasised by s.6 of the Defamation Act 1952.

Question 28

Which scenario would lead to a successful plea of fair comment;

(a) Jeff stays at a premier inn hotel, Jeff proceeds to leave a review which simply states “This hotel is by far the worst and most disgusting hotel on the planet”.
(b) The guardian newspaper writes an article which states flats in Glasgow are some of the most unsafe in the UK, they do so by comparing to other blocks of flats from around the UK and an expert’s statement.
(c) A labour MP tweets that a Conservative MP is having an affair.

Answer 28

(b) would be the successful plea of fair comment as sufficient facts have been stated which make the comment allowed.

Question 29

How does absolute privilege work?

Answer 29

Where statements are absolutely privileged they cannot raise an action for defamation even where there may be an intent to injure.

Examples are in parliament and in judicial proceedings.

Question 30

What is qualified privilege?

Answer 30

Where a statement is made in response to a duty to a person with an interest in receiving the information.

Question 31

What did Lord Atkinson state in the case of Adam v Ward 1917?

Answer 31

A privileged occasion is an occasion where the person who makes a communication has a duty, legal, social or moral to make it to a person who has a duty to receive it.

Question 32

If qualified privileged is establish can defamation still occur?

Answer 32

Yes, however, the onus is on the pursuer to establish malice.