Defamation

Question 1

What does the Defamation Act 2013 say?

Answer 1

A statement is not defamatory unless it’s publication has caused serious harm to the reputation of the claimant

Question 2

How is a defamation case solved?

Answer 2

Via the balance of probability - involves who has the best argument

Question 3

Who are defamation cases heard by?

Answer 3

A judge only - no jury

Question 4

What is the purpose of the defamation law?

Answer 4

The act of protecting the good reputation of a person from serious harm

Question 5

Is defamation a civil or legal case?

Answer 5

CIVIL - argument between 2 people

Question 6

What is slander?

Answer 6

A spoken defamatory comment

Question 7

What is libel?

Answer 7

A written defamatory comment

• even if you delete it it still has some sort of permanence

Question 8

Who can sue?

Answer 8

Anyone

Companies can also sue for defamatory but only if it shows serious harm against their business reputation e.g. financial loss

Question 9

Who can’t sue?

Answer 9

The dead

Trade union - an organised association of workers in a trade, group of trades, or profession, formed to protect and further their rights and interests.

Councils

There’s no definitive answer about those in comas

Question 10

Who can be sued?

Answer 10

The ‘author’ of the comment

Usually the person with the most money

Question 11

What is the DIP test?

Answer 11

1) is it defamatory?
2) does it identify someone?
3) will there be publication?
4) is there a defence?

Question 12

Is your comment defamatory?

4 POINT TEST

Answer 12

1) does it cause the complainant to be shunned/ avoided?
2) does it lower them in the eyes of right thinking people?
3) does it expose them to hatred/ ridicule or contempt?
4) does it disparage them in their profession?

Question 13

What are the rules on publication of defamatory comments?

Answer 13

The complainant can only due for the first publication not any after

But every time a different publisher publishes the story the complainant can sue

It’s not safe to say you’re reporting something that someone else has said

Question 14

What are the new penalties?

Answer 14

Courts can force publications to publish a summary

Can order removal of a comment

Question 15

What is sec 1 innocent dissemination?

Answer 15

Online publications must have their own protocols e.g. terms and conditions

The defamatory statement must be removed instantly if attention is drawn to it

If you moderate the statement you are then the author ( this couldn’t happen to the BBC or the guardian as they’re moderates in the first place

The publisher is not the author as there is no moderation BUT it’s not safe to say you’re merely reporting what someone else has said

Question 16

What is the truth defence 2013?

Answer 16

Only covers hard facts

You have to prove something is substantially true, if you can prove the worst bits then you will win any action

Prior to 2013 you had to convince the jury that the things you were saying were 100% true, now you just have to prove it’s most likely true

Problems -

Often it’s one persons word against another

Have to consider the quality and availability of the witnesses

Witness may disappear/die/change their minds

Expensive

Hard to gather convincing evidence

Extra punishment if you’re wrong

Question 17

What is the public interest 2013 defence?

Answer 17

DONT USE

Can use the defence if:

The statement was a matter of public interest (need to know), they reasonably believe they were making the statement in public interest

Positives -

No need to piece if it’s true as long as both sides of the story of given - courts can taken into account editorial judgement , it can protect opinion and fact

Negatives -

New defence - little case study, no clear judgement on public interest

Question 18

What is the accord and satisfaction defence?

Answer 18

Common law defence

When you have made an error/ unwilling to fight a case

You’re saying you’re sorry and will make some form of recompense

THERE MUST BE AN APOLOGY/ CORRECTION

You mush have the agreement with the complainant in writing

DANGERS -

Looks like an admission of guilt - the moment you say sorry it looks like you’re admitting liability

You may have defamed the wrong person

Question 19

What is the honest opinion defence?

Answer 19

Widely used by all media to protect the expression of an honestly held opinion not fact

Must meet the following:

Must be an honestly held opinion not fact
Must indicate the basis/ facts on which opinion is based
Must be recognised as a comment
Must not suggest dishonour or corruption
Must not be made maliciously

It must be fact that that the honestly held opinion was made but the comment doesn’t have to be true

Question 20

What is the privilege defence?

Answer 20

Protection for people when there’s recognition of public interest in free speech

E.g. journalists can have privilege in courts, councils, press conferences, parliament, public meetings

Privilege for media - important to report on these occasions for public’s interest

Privilege for individuals - witnesses, judges, magistrates, lawyers in court - mps in the houses of common/ lords may be challenged to say the defamatory comment outside of the house where they’re not protected

Question 21

What is absolute privilege?

Answer 21

If the defence of absolute privilege applies it is irrelevant that a defendant has acted with malice, knew information was false or acted solely to damage the reputation of the plaintiff

Question 22

What is qualified privilege?

Answer 22

The defence of qualified privilege allows free communication in certain relationships without the risk of an action for defamation - generally where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it

E.g. when reporting suspected crimes to police/ child neglect to social services

Question 23

What does the judge in a libel case do?

Answer 23

Referees the case, decides costs, decided the law, directs the jury, makes the decision if no jury is to be called

Question 24

What does the jury do in a libel case?

Answer 24

Asked to consider what the words mean and how much the complainant should get if they win

Question 25

What do the courts do in a libel case?

Answer 25

Look at damage to the reputation of the individual in the uk

If the complainant would get a fairer trial elsewhere

The extent to which publication was targeted at a particular readership

Libel tourism

Question 26

What is libel tourism?

Answer 26

Where courts only hear claims from foreign citizens if they’re satisfied the UK is the best place to bring the action

Question 27

What happened in the channel 4 Westminster attack case?

Answer 27

Channel 4 thought they had the name of the man who had committed the Westminster attack but they named the wrong person

Has to go live and apologise

Claimed it was a fast moving story and they acted swiftly to correct it

Question 28

What happened in McCann’s friends case?

Answer 28

The 7 friends that were present when Madeleine went missing received £375k between them after being labelled suspects

Story said they were hiding facts and had misled the authorities

The publication apologised as it was extremely damaging to their reputations