Defamation Flashcards
The requirements for an action in defamation:
1) A defamatory statement causing or likely to cause serious harm to the Claimant’s reputation
2) The statement must refer to C
3) The statement was published by the Defendant.
4) Additional requirements for slander, either:
i) Proof of special damage
ii) Imputation of criminal offence
iii) Def Act s2: Alleged unfitness in profession alleged
What does defamation do?
Defamation protects a claimant’s interest in reputation against false allegations (slander and libel).
‘for mere general abuse spoken no action lies’
Thorley v Kerry
Thorley v Kerry
‘for mere general abuse spoken no action lies’
Berkoff
Three tests in defamation Three tests (Berkoff)
1) Sim v Strech (1936) Lord Atkin
Would the statement tend to lower the P in the estimation of right thinking members of society generally?
(qualified in Byrne v Dean to refer to law-abiding citizens).
2) Parmiter (1840), Berkoff
Does the statement tend to expose the Claimant to hatred, ridicule or contempt
3) Youssoupoff, Berkoff
Would the statement ‘make people shun and avoid the claimant’.
Sim v Stretch
Statement defamatory?=
Would the statement tend to lower the P in the estimation of right thinking members of society generally?
(qualified in Byrne v Dean to refer to law-abiding citizens).
Statement defamatory?=
Would the statement tend to lower the P in the estimation of right thinking members of society generally?
(qualified in Byrne v Dean to refer to law-abiding citizens).
Sim v Stretch
Parmiter (1840), Berkoff
Does the statement tend to expose the Claimant to hatred, ridicule or contempt
Does the statement tend to expose the Claimant to hatred, ridicule or contempt
Parmiter (1840), Berkoff
Youssoupoff, Berkoff
Would the statement ‘make people shun and avoid the claimant’.
s.1 Def Act 2013
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant
Lewis v Daily Telegraph
Ordinary reasonable reader
In order to establish whether a statement has the tendency to defame the court looks at what the words would convey to an ordinary reasonable reader
- Here: ordinary reasonable reader would understand being investigated is not the same as being guilty of fraud
Ordinary reasonable reader
In order to establish whether a statement has the tendency to defame the court looks at what the words would convey to an ordinary reasonable reader
- Here: ordinary reasonable reader would understand being investigated is not the same as being guilty of fraud
Lewis v Daily Telegraph
Charleston
manipulated naked and pornographic photos of C were placed in a magazine above an article explaining they were fake
Held
Publication has to be taken as a whole
manipulated naked and pornographic photos of C were placed in a magazine above an article explaining they were fake
Held
Publication has to be taken as a whole
Charleston
Cassidy
TRUE INNUENDO
words which would not otherwise have been ruled as being defamatory can hold such a meaning because of the circumstances or extraneous facts
Here:
The reasonable ordinary reader could have some special knowledge which would allow him to infer a defamatory meaning to the article
Generally:
In alleging true innuendo C must particularize in his/her statement the facts relied upon in support of the extended meaning
Berkoff
UGLINESS
Calling somebody ugly will normally not suffice
NEILL LJ:
- Insults which do not diminish a man’s standing among others do not found an action in libel or slander
- However:
- Words may be defamatory even though they neither impute disgraceful conduct to the Defendant or lack of skill in professional activity if they hold him up to contempt, scorn or ridicule or tend to exclude him from society
Here deciding factor was that Berkoff makes his living from being in the public light
UGLINESS
Calling somebody ugly will normally not suffice
NEILL LJ:
- Insults which do not diminish a man’s standing among others do not found an action in libel or slander
- However:
- Words may be defamatory even though they neither impute disgraceful conduct to the Defendant or lack of skill in professional activity if they hold him up to contempt, scorn or ridicule or tend to exclude him from society
Here deciding factor was that Berkoff makes his living from being in the public light
Berkoff
TRUE INNUENDO
words which would not otherwise have been ruled as being defamatory can hold such a meaning because of the circumstances or extraneous facts
Here:
The reasonable ordinary reader could have some special knowledge which would allow him to infer a defamatory meaning to the article
Generally:
In alleging true innuendo C must particularize in his/her statement the facts relied upon in support of the extended meaning
Cassidy
Youssoupoff (1939)
ALLEGATION OF RAPE
Defendant contented that the film complained of did not indicate aa seduction between a character C identified with and another but if anything a rape
Slesser LJ:
Either way amoral discredit on part of the C due to the content of the film could be identified.
Successful claim for libel
Note:
- Social attitudes have changed so it may be well different, and an allegation of rape may no longer be ruled as defamatory
- However even in this case the court was aware that pity might be more likely, and they were aware that rape does not reflect upon somebody’s moral credit, nevertheless they found that in reality a Claimant might still be avoided due to such allegation, avoidance has not to be triggered by any moral discredit on your part
ALLEGATION OF RAPE
Defendant contented that the film complained of did not indicate aa seduction between a character C identified with and another but if anything a rape
Slesser LJ:
Either way amoral discredit on part of the C due to the content of the film could be identified.
Successful claim for libel
Note:
- Social attitudes have changed so it may be well different, and an allegation of rape may no longer be ruled as defamatory
- However even in this case the court was aware that pity might be more likely, and they were aware that rape does not reflect upon somebody’s moral credit, nevertheless they found that in reality a Claimant might still be avoided due to such allegation, avoidance has not to be triggered by any moral discredit on your part
Youssoupoff (1939)
S.1: harmful or potentially harmful
What has been alleged
How widely is the publication disseminated
How many people have read it
Apology might be given some weight (Cooke v MGN)
Nb: no pain suffered need to be proven, statement vs publication (not the same!!)
Cooke v MGN
In considering whether a statement is harmful to Cs reputation Apology might be given some weight
In considering whether a statement is harmful to Cs reputation Apology might be given some weight
Cooke v MGN
Claim must be brought by the person who is being defamed
Knuppffer
Knuppffer
Claim must be brought by the person who is being defamed
Jameel v Wall Street Journal
- Companies can generally sue (but damages should be small)
- Particular loss can be recovered
- Presumed harm will only be small because of a concern of infringement of free speech
Dissenting
Hoffmann
Companies have no soul or personality, defamation should protect dignity
Lady Hale
Companies play such a big role in modern life, people should be allowed to criticize them without fear of liability
Accepted and enhanced by Def Act 13 s.1(2)
- Companies can generally sue (but damages should be small)
- Particular loss can be recovered
- Presumed harm will only be small because of a concern of infringement of free speech
Dissenting
Hoffmann
Companies have no soul or personality, defamation should protect dignity
Lady Hale
Companies play such a big role in modern life, people should be allowed to criticize them without fear of liability
Accepted and enhanced by Def Act 13 s.1(2)
Jameel v Wall Street Journal
Knuppffer
Groups won’t be able to claim in defamation unless
1) the words refer to a group that is so small that the words may be taken to refer to each member
2) the language was sufficiently specific towards every single person (singling out every member)
UNCLEAR:
What does small enough mean: Here 24 too many, but in a Scottish Case 7 ok
Maybe apply: Hulton
Would a reasonable person believe words to refer to C?
Groups won’t be able to claim in defamation unless
1) the words refer to a group that is so small that the words may be taken to refer to each member
2) the language was sufficiently specific towards every single person (singling out every member)
UNCLEAR:
What does small enough mean: Here 24 too many, but in a Scottish Case 7 ok
Maybe apply: Hulton
Would a reasonable person believe words to refer to C?
Knuppffer
Would a reasonable person believe words to refer to C?
Hulton v Jones
Hulton v Jones
Would a reasonable person believe words to refer to C?
Neither Government bodies, nor political parties can bring a claim in Defamation
Why?
Freedom of speech requires people to be able to discuss the workings and merits of Government bodies to make an informed choice at an election without having to fear consequences of a tort in defamation.
Cassidy
Strict liability
Words might be indirectly defamatory
Publisher might not know of true innuendo
Hulton v Jones
- Question is not who was meant but who was hit
(Artemus Jones Appeal) - Tort consists in using the language which others knowing the circumstances would reasonably think of as being defamatory of the person complaining of and injured by it
Why no bad intention requirement?
1) Defamation used to always be tried by jury: jury might find good faith and believe in the truth
2) This lead to negative checking as practice especially in film and such media
Note also: Influence of Art. 10 ECHR now relaxes the effects of strict liability
Followed by Newstead
- Question is not who was meant but who was hit
(Artemus Jones Appeal) - Tort consists in using the language which others knowing the circumstances would reasonably think of as being defamatory of the person complaining of and injured by it
Why no bad intention requirement?
1) Defamation used to always be tried by jury: jury might find good faith and believe in the truth
2) This lead to negative checking as practice especially in film and such media
Note also: Influence of Art. 10 ECHR now relaxes the effects of strict liability
Followed by Newstead
Hulton v Jones
Strict liability
Words might be indirectly defamatory
Publisher might not know of true innuendo
Cassidy
O’Shea v MGN
Exception:LOOK-A-LIKE PICTURES
adult model published in Daily Mirror resembling C
STRICT LIABILITY DID NOT APPLY:
1) Possible to identify and eliminate coincidental names; it is not possible to identify if somebody looks uncannily like somebody else
2) Strict liability rule in such situation would be a disproportionate interference with Art. 10
Interference only where pressing social need
Exception:LOOK-A-LIKE PICTURES
adult model published in Daily Mirror resembling C
STRICT LIABILITY DID NOT APPLY:
1) Possible to identify and eliminate coincidental names; it is not possible to identify if somebody looks uncannily like somebody else
2) Strict liability rule in such situation would be a disproportionate interference with Art. 10
Interference only where pressing social need
O’Shea v MGN
Baturina
CONFIRMATION OF GENERAL RULE AFTER O’Shea
(and in relation To true innuendo)
CoA declined to restrict liability in cases where D could not have reasonably appreciated the innuendo meaning of his/her statement
CONFIRMATION OF GENERAL RULE AFTER O’Shea
(and in relation To true innuendo)
CoA declined to restrict liability in cases where D could not have reasonably appreciated the innuendo meaning of his/her statement
Baturina
What does publication mean
Publication means simply communication.
The statement must have been conveyed in some way to a third party (even a single person)
-> everybody involved in the process is possibly liable as a publisher
OMISSIONS
Failure to take down writings with defamatory meaning meant that D had published the statement
Such an omission amounts to publishing unless removal would require great trouble (e.g. Grafittis)
Byrne v Deane
Byrne v Deane
OMISSIONS
Failure to take down writings with defamatory meaning meant that D had published the statement
Such an omission amounts to publishing unless removal would require great trouble (e.g. Grafittis)
SINGLE PUBLICATION
RULE
Common Law position used to be multiple publication rule
HOWEVER
This was likely to cause great trouble, as, where there is repeated access of archived materials on the internet this would raise the prospect of countless publications
Upon proposition of a stricter rule by a parliamentary committee:
S8 Single Publication Rule
Restricts actions on republication which fall outside a limitation period of 1 year from the original publication
Thorley
distinction between permanent and non-permanent form, libel and slander libel: Permanent form (TV radio -> Def Act 1952 Theatre -> Theat. Act 1968 Broadcasting Act 1990) ACTIONABLE PER SE (presumption of damage)
SLANDER transitory form (Speech, gesture) SPECIAL DAMAGE REQUIRED or a) imputation of criminal offence b) Def Act S2: unfitness in profession alleged
distinction between permanent and non-permanent form, libel and slander libel: Permanent form (TV radio -> Def Act 1952 Theatre -> Theat. Act 1968 Broadcasting Act 1990) ACTIONABLE PER SE (presumption of damage)
SLANDER transitory form (Speech, gesture) SPECIAL DAMAGE REQUIRED or a) imputation of criminal offence b) Def Act S2: unfitness in profession alleged
Thorley
Defence: DISTRIBUTORS
Def. Act 13 s.10 reasonable practicability test = unexplained, No case law so far
Def Act 96 s. 1
Requirements:
1) Reasonable care (probably means making inquiries and checking)
2) Reasonable belief not to be contributing to defamation
(means once aware/ informed of defamation defence is lost)
Website operators
not liable
s. 5 Defamation (Operators Of Websites) Regulations-
- requirement to take down the statement only where the publisher can’t be identified
- requirement to inform writer of defamatory nature of statement
Truth defence
Defamatory statement will be presumed to be false at first
Burden on the D to prove its true.
Truth defence is absolute and excludes unlawfulness.
Irrelevant factors:
1) D acting maliciously
2) If D took reasonable steps to make sure statement= true, when its false
3) Statement made in public interest
Stern v Piper
Repition of a libel
Repition of a libel is just as bad
Simply reporting that you heard the statement from somebody else will not give rise to a defence,you would have to prove the statement is actually true
Repition of a libel
Repition of a libel is just as bad
Simply reporting that you heard the statement from somebody else will not give rise to a defence,you would have to prove the statement is actually true
Stern v Piper
s.2(3) :
MIX OF IMPUTATIONS
defence does not fail if one or more imputations is false or not shown to be true, as long as the harmful imputation can be shown to be substantially true
Bookbinder
PROOF OF EACH AND SPECIFIC ALLEGATION
A specific allegation cannot be justified by evidence of a general tendency
Here the court could not take a specific allegation as example of some broader allegation, the specific allegation would have to be proved
Importance shown in:
Scott v Sampson
PROOF OF EACH AND SPECIFIC ALLEGATION
A specific allegation cannot be justified by evidence of a general tendency
Here the court could not take a specific allegation as example of some broader allegation, the specific allegation would have to be proved
Importance shown in:
Scott v Sampson
Bookbinder
Scott v Sampson
producing evidence of misconduct at the
mitigation of damages stage is not permissible
Only proof that C already had a bad reputation will be permissible, this is to stop C to be ambushed at the end of the trial
producing evidence of misconduct at the
mitigation of damages stage is not permissible
Only proof that C already had a bad reputation will be permissible, this is to stop C to be ambushed at the end of the trial
Scott v Sampson
Grobbelaar
Sting must be proven to be truthful
where there is one imputation, albeit with
different aspects it needs to be worked out
where the sting of the defamatory statement lies and whether the aspect conveying the sting was truthful
Sting must be proven to be truthful
where there is one imputation, albeit with
different aspects it needs to be worked out
where the sting of the defamatory statement lies and whether the aspect conveying the sting was truthful
Grobbelaar
Lyon
s. 3 protects the function of honest and fair criticism and debate, which cannot be true or false, as it is based on opinion and is (as per Lord Scott in Lyon) vital to be preserved
s. 3 protects the function of honest and fair criticism and debate, which cannot be true or false, as it is based on opinion and is (as per x in x) vital to be preserved
Lord Scott in lyon
s3 requirements
3 REQUIREMENTS:
1) Statement of opinion
- Must be presented as opinion
2) Statement must implicitly or explicitly indicate the factual basis of opinion
- It is now enough that the general factual basis is provided Spiller
3) Could a honest person have held the opinion on the facts existing at the time
Nb must not be reasonably held opinion
HONEST OPINION DEFEATED BY MALICIOUS MOTIVE
(nb before: fair comment, now abolished, fair comment only applied in matters of public interest)
Spiller
For the defence of honest opinion it is now enough that the general factual basis is provided
For the defence of honest opinion it is now enough that the general factual basis is provided
Spiller
QUALIFIED PRIVILEGE
This defence is accorded to someone who is acting under a moral, legal or social duty to communicate some information to a person who has a corresponding interest in the information.
The defence depends on bona fide and will be defeated by malice
This defence is accorded to someone who is acting under a moral, legal or social duty to communicate some information to a person who has a corresponding interest in the information.
The defence depends on bona fide and will be defeated by malice
QUALIFIED PRIVILEGE
Horrocks
Malice
Qualified privilege will be lost if proved that D
a) Held a dominant and improper motive (predominant motive was not to perform the duty that would give rise to the defence)
Accompanied by
b) Lack of honest belief in the statement (or recklessness as to truth of the statement)
Malice
Qualified privilege will be lost if proved that D
a) Held a dominant and improper motive (predominant motive was not to perform the duty that would give rise to the defence)
Accompanied by
b) Lack of honest belief in the statement (or recklessness as to truth of the statement)
Horrocks
Toogood
Common example of qualified privilege defence
EMPLOYMENT REFERENCE an unflattering recommendation letter will fall under this defence provided the potential new employer has an interest in the information
Common example of qualified privilege defence
EMPLOYMENT REFERENCE an unflattering recommendation letter will fall under this defence provided the potential new employer has an interest in the information
Toogood
Statement on a matter of public interest
s.4 Def Act 2013
1. Is the statement on a matter of public
interest?
2. Did D reasonably believe that
the statement was in public interest
-> court must have regard to all circumstances of the case * see Reynolds for incentive on what to consider but note
its abolished (imp.: reasonable belief)
nb: on a matter of public interest does
not simply mean public wants to know
about it
Reynolds
Abolished Lord Nicholls: Factors to be taken into account i.a.: 1) Seriousness of allegation 2) Nature of information and extent To which matter is of public concern 3) Source of information 4)Steps taken to verify and Urgency 5) Comment sought from Claimant, 6) Tone of article “responsible journalism”, Absence of malice will be implied
Problem with the test:
The factors to be taken into account shifted the test
from what the D believed at the time
to a later assessment of the judge looking Back
That’s why this was abolished and the Act asks
For reasonable belief
Abolished Lord Nicholls: Factors to be taken into account i.a.: 1) Seriousness of allegation 2) Nature of information and extent To which matter is of public concern 3) Source of information 4)Steps taken to verify and Urgency 5) Comment sought from Claimant, 6) Tone of article “responsible journalism”, Absence of malice will be implied
Problem with the test:
The factors to be taken into account shifted the test
from what the D believed at the time
to a later assessment of the judge looking Back
That’s why this was abolished and the Act asks
For reasonable belief
Reynolds
Economou v de Frietas)
Reynolds still provides guidance on principles to be considered in s.4
Al Fagih
Defence of reportage
- Developed from Reynolds
- Where a dispute between two parties without subscribing to the truth of allegations made on either side is written about (Al Fagih)
- S.4(3)
Defence of reportage
- Developed from Reynolds
- Where a dispute between two parties without subscribing to the truth of allegations made on either side is written about (x)
- S.4(3)
Al Fagih
ABSOLUTE PRIVILEGE
The defence of absolute privilege covers situations in which it is very important that the participants are able to speak freely without having to fear repercussions.
It is NOT defeated by proof of malice.
JUDICIAL PRIVILEGE
speech in court
Reports of court proceeding, Def Act 1996 s14
PARLIAMENTARY PRIVILEGE
speech in parliament
Derived from Art.9 Bill of Rights modified in Def Act 1996 s.13
Does not only cover debates in the HoC but all statements made by MPs during parliamentary proceedings – can be waived by MPs as it does not only apply to statements made by them but also statements about them
EXECUTIVE PRIVILEGE
certain communications between officers of the state
OFFER OF AMENDS
This defence applies to innocent (unintentional) defamation (as f.e. Cassidy), set out in Def Act 1996 ss2-4
- Offer in writing to C
- To publish a correction and apology
- Pay compensation and damages
If the offer of amends is rejected by C it may be later relied on as a defence (not in conjunction with another defence though)
Bingham, in John v MGN
The award of damages at large is the primary remedy for the tort of Defamation.
The award of damages at large is the primary remedy for the tort of Defamation.
Bingham, in John v MGN
Why are defamation damages untypical
Atypical because :
1) Jury were asked with assessing- exceptional in civil justice system
2) Punitive damages can be added
Awarded will be Compensatory damages (special damages (specific losses)+ presumed losses) + exemplary damages
(Courts and Legal Services Act 1990 S. 8)
- Compensatory Damages
- Compensate for the loss suffered
- In the case of libel and slander actionable per se injury to reputation will be presumed to flows from the publication in favor of C, so C will be entitled to damages at large
- Sometimes damages awarded by the jury would be really high, this is why CoA now can order new trial where damages are excessive
Presumed damages reflect
1) Claimant’s loss of reputation
2) Claimants injury to feelings (nb: injury to feelings alone will not found a claim due to s.1 Def Act (Theedom v Nourish Trading)
o Assessed also by looking at extent of publication, seriousness of statement and Ds conduct
Other considerations:
- If there has been an apology (Cooke)
- Cs reputation and conduct (has C provoked the defamation (Watts v Fraser)
Watts v Fraser)
Consideration when assessing damages:Cs reputation and conduct (has C provoked the defamation
Consideration when assessing damages:Cs reputation and conduct (has C provoked the defamation
Watts v Fraser)
John v MGN
COMPENSATE FOR 1) Damage to reputation 2) Vindicating Cs name 3) Distress, hurt, humiliation the more closely the libel touches C’s integrity the more serious it will be held to be
There will never be a precise, arithmetical formula
When indicating guidelines to the jury the judge may draw comparisons to personal injury
COMPENSATE FOR 1) Damage to reputation 2) Vindicating Cs name 3) Distress, hurt, humiliation the more closely the libel touches C’s integrity the more serious it will be held to be
There will never be a precise, arithmetical formula
When indicating guidelines to the jury the judge may draw comparisons to personal injury
John v MGN
The Gleaner
Only broad comparison will be appropriate, attempts to equate them were criticised(
Only broad comparison will be appropriate, attempts to equate them were criticised(
The Gleaner
Barron v Vines, Grobbellar
May be taken into account and may reduce damages
Though not evidence of rumours or suspicion
(Scott v Sampson)
May be taken into account and may reduce damages
Though not evidence of rumours or suspicion
(Scott v Sampson)
Barron v Vines, Grobbellar
Exemplary damages
Exemplary damages are of punitive nature and designed to make an example of D due to his or her misconduct.
They may be awarded were the Defendant has made a cost-benefit analysis and published the defamatory statement knowing of the possible consequences
Broome
Commercial publishers
Book publisher had calculated he would make profit even if claim against him was brought and succeeded
Commercial publishers
Book publisher had calculated he would make profit even if claim against him was brought and succeeded
Broome
Mitigation
A Defendant found guilty is entitled to show that Cs reputation was already damaged and that therefore the damage done was lower than it would otherwise have been.
Scott v Sampson
At the mitigation of damages stage
It is important that the evidence is that of Cs already damaged reputation
(It is not admissible for D to produce new evidence of previous misconduct)
This will be helpful where there is some evidence that can’t be fit into the truth defence but that still has had an impact on the damage done
At the mitigation of damages stage
It is important that the evidence is that of Cs already damaged reputation
(It is not admissible for D to produce new evidence of previous misconduct)
This will be helpful where there is some evidence that can’t be fit into the truth defence but that still has had an impact on the damage done
Scott v Sampson
a) Final Injunction
These may be granted at the end of some cases and will include
1) Instruction that party must do something or
2) “ must not do something
b) Interim Injunction
These will be sought by a Claimant that tries to stop D from publishing the allegedly defamatory statement.
Courts are very reluctant to grant injunctions in these circumstances
Bonnard v Perryman
Court underlines the importance of freedom of speech and that interim injunctions should only be granted in the clearest of cases
Should not be granted where
1) D contests whether the words are defamatory at all (C must prove the libel is clearly untrue)
2) D indicates the intention to raise a defence
(only where it is clear the defence will fail)
Court underlines the importance of freedom of speech and that interim injunctions should only be granted in the clearest of cases
Should not be granted where
1) D contests whether the words are defamatory at all (C must prove the libel is clearly untrue)
2) D indicates the intention to raise a defence
(only where it is clear the defence will fail)
Bonnard v Perryman
HRA 1998 requirement for injunctions
Judges should consider whether applicants
are more likely than not to succeed when
granting any relief that could threaten freedom
of speech
o Lower threshold than Bonnard
Greene
it was argued Bonnard gave too much protection to freedom of speech and not enough to right to private life etc
the HRA could not be interpreted so as to make it easier to get an interim injunction
it was argued Bonnard gave too much protection to freedom of speech and not enough to right to private life etc
the HRA could not be interpreted so as to make it easier to get an interim injunction
Greene
