Defamation Flashcards
What is a defamatory statement?
A statement (can be images of footage as well as written) is defamatory if it causes/is likely to cause serious harm to a person’s reputation by:
- exposing the person to hatred, contempt or ridicule
- lowering the person in the estimation of right-thinking members of society generally
- causing person to be shunned/avoided
- disparaging the person in their business, trade, office or profession
Repetition Rule
Anyone who repeats a slanderous or libellous statement, even if not making allegations themselves, is liable to be sued. Each publication of defamatory material can give rise to a libel action.
Example Former solicitors of Private Clegg originally won damages of hundreds of thousands of pounds by suing several newspapers which published comments made by his supporters which were ruled by High court to have libelled their law firm.
Defamation Cases
In a defamation case the judge rules on whether the words complained of are capable of bearing defamatory meaning. If answer yes, judge/jury:
- decides whether words were libellous (or in slander cases slanderous)
- and awards damages if they find for the claimant
Inference
An inference is a second level of meaning which can be understood by someone without special knowledge who ‘reads between the lines’ in light of his/her general knowledge.
In such cases claimant does not have to prove anyone actually did understand defamatory reference.
Innuendo
Refers to a hidden meaning in a statement which can only be understood to be defamatory by people with special knowledge. Not all reasonable people will understand defamatory meaning.
If innuendo alleged, claimant must show meaning exists and is known by at least some people to which statement was published.
Example libel by innuendo against Lord Gowrie who received substantial damages over newspaper which created innuendo he took drugs. Some readers with special knowledge would see a hidden meaning.
Identification in defamation cases
In defamation cases where identification is an issue, the judge/jury apply following test:
- whether the material published would reasonably lead people acquainted with the claimant to believe that the words referred to the claimant
Example of Harold Newstead in Camberley who successfully sued for libel when after an article was published about another Harold Newstead of Camberley who was jailed for bigamy he argued acquaintances could think the article referred to him.
Libel cases
To succeed in an action for libel, a claimant must prove 3 things about the statement complained of:
- That it is defamatory and has caused/is likely to cause ‘serious harm’ to the claimant’s reputation or if a company ‘serious financial loss’.
- That it has been reasonably understood to refer to him/her (identification)
- That it has been published to a third person
* Defamation Act 2013 also requires material published caused/is likely to cause his/her reputation serious harm
* Claimant does not have to prove statement is false
What is a limitation period?
Claimant must sue within a year of the publication of the material.
Judge does have discretion to extend 1yr period in special circumstances
What is the single publication rule?
Created as a defence in Section 8 of Defamation Act 2013. Limitation period runs from date of first publication ‘to the public’.
Defamation by reference to a group
No fixed number in law to say how small a group must be before all members of it can successfully claim the reference ‘identified’ each of them.
Depends on circumstances of case and detail in the published matter.
General rule: smaller the group, more likely people within it able to claim they have been identified
*Banbury CID case 10 policeman from Banbury CID successfully sued over a false allegation that one of their unit had raped a criminal’s wife
Use of waivers/agreements
Libel defence of accord and satisfaction may be achieved by publisher securing a waiver from the complainant in return for an agreed correction/apology.
Waiver is a signed agreement that complainant will not sue for defamation if agreed correction/apology published.
Job of lawyer to draft waiver. If complainant does sue court will accept that the signed agreement means defence of accord and satisfaction is in place.
What is a tort?
Legal term in civil law for a wrong or injury. Both libel and slander are a kind of tort.
Risk of apologies
Admitting the libel: publication of apology/correction could make it easier for complainant to win damages.
Repeating the libel: badly worded apology/correction could repeat original libel making it more likely libelled person may take legal action.
Libelling someone else: risk that wording of apology/correction will libel another party
Follow-up stories risk all these dangers too
Problem of correcting privileged reports: correction/clarification would not be privileged
*Only experienced editors/lawyers/executives should offer or negotiate about an apology so inexperienced journalists should pass the issue on
Slander
Is a damaging, untrue or unfair statement by word of mouth or in any other transient form
Danger of slander for journalists if making inquiries about someone and verbally refer, when speaking to another person, to the alleged misconduct of the person being investigated.
Libel
Is a damaging, untrue or unfair statement published in a physically permanent form or published in a statement on TV or on radio/internet/in a play
Journalists more likely to be sued for libel.
