Defamation Flashcards
What does the Defamation Act 2013 say?
A statement is not defamatory unless it’s publication has caused serious harm to the reputation of the claimant
How is a defamation case solved?
Via the balance of probability - involves who has the best argument
Who are defamation cases heard by?
A judge only - no jury
What is the purpose of the defamation law?
The act of protecting the good reputation of a person from serious harm
Is defamation a civil or legal case?
CIVIL - argument between 2 people
What is slander?
A spoken defamatory comment
What is libel?
A written defamatory comment
- even if you delete it it still has some sort of permanence
Who can sue?
Anyone
Companies can also sue for defamatory but only if it shows serious harm against their business reputation e.g. financial loss
Who can’t sue?
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
Who can be sued?
The ‘author’ of the comment
Usually the person with the most money
What is the DIP test?
1) is it defamatory?
2) does it identify someone?
3) will there be publication?
4) is there a defence?
Is your comment defamatory?
4 POINT TEST
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?
What are the rules on publication of defamatory comments?
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
What are the new penalties?
Courts can force publications to publish a summary
Can order removal of a comment
What is sec 1 innocent dissemination?
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
What is the truth defence 2013?
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
What is the public interest 2013 defence?
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
What is the accord and satisfaction defence?
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
What is the honest opinion defence?
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
What is the privilege defence?
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
What is absolute privilege?
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
What is qualified privilege?
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
What does the judge in a libel case do?
Referees the case, decides costs, decided the law, directs the jury, makes the decision if no jury is to be called
What does the jury do in a libel case?
Asked to consider what the words mean and how much the complainant should get if they win
