Defamation Flashcards
A claimant who wishes to pursue a claim for defamation will need to prove that the incident has caused, or likely to cause serious reputational harm under which Act
Additionally, has or likely to suffer serious financial loss.
s. 1 (1) Defamation Act 2013 (DA 2013) - reputation
s. 1(2) Defamation Act 2013 (DA 2013) - financially
Defamation is..
The publishing (making known to a third party) a statement capable of bearing a defamatory meaning, which refers to an identifiable claimant.
If the defamation is in a permanent form it will amount to libel.
Sim v Stretch (1939) examples the impact on reputation and how it would lower them the in the eyes of right-thinking members of society
What happens in the scenario that the communication i.e. an email is forwarded to other people.
Normally this would be considered a novus actus interveniens i.e. an intervening act meaning that the Defendant would only be liable for the original email not any forwarding of that email.
Slipper v BBC (1991) establishes that when a receptionist receives an email it is only the standard procedure for that email to be sent to the appropriate people to action. Therefore, the intervening act would not apply.
If the forwarding of the email is outside of the normal procedures then the Defendant would not be responsible for the Defamation caused in those additional cases.
Was the statement/email sent in the Public interest?
i.e the safety of children.
This includes any forwarding to a third party to ensure those who you reasonable believe would act to protect those interests.
If so, what Defence can be relied upon?
s.4(1) Defamation Act 2013
In a situation where defamation has been posted to social media
The Claimant would need to prove that the social media has been accessed and read by third parties.
Morgan v Oldhams Press Ltd (1971) establishes that even if the Claimant is not named but enough information is provided to identify that person this will constitute defamation.
People can interpret defamation in different ways…
i.e that reasonable persons can be guided by general knowledge for example, in the case of children if someone who works at a school was a victim of a message on social media stating they are unfit to work with children and you fear for their safety and wellbeing - some may interpret in a much darker way possible sexual abuse, when it is not.
Lewis v Daily Telegraph Ltd (1964)
It will be no defence for the Defendant to argue that they did not appreciate the statement being interpreted in a different way
Baturina v Times (2011)
A defence of honest opinion will fail if the Defendant mentions that they ‘believe’ it to be the case - there is no certainty.
They need to be clear.
Therefore not satisfying
s. 3(2) of DA 2013 and;
s. 3(3) DA 2013.
Would the social media platform be liable?
They are likely to have a defence of innocent dissemination under s.1(1) Defamation Act (1996) IF, upon notification of the posting, they investigated it and removed the post.
Godfrey v Demon Internet (1999)
The website i.e Facebook will have a defence as the ‘operator of a website’ under s.5 DA (2013) by being able to prove that someone else posted the content despite their moderating role under s.5(12)
Are the recipients of the message responsible if they do not remove the post from their social media page
This could be considered publishing statement by omission by not removing the post.
Removing the post can be done in little time and no expense.
Byrne v Deane (1937)
