Defamation Flashcards
Elements of Claimant’s burden of proof
a) Finding defamatory statement
b) Statement must refer to claimant
c) Statement has been published
Elements for a) Finding defamatory statement
a) Tendency to defame
b) Interpretation according to standard of right-thinking opinion
c) Serious harm requirement
Test for tendency to defame
Broad non-exhaustive test; Sim v Stretch/Berkoff v Burchill; “lower claimant in estimation of right-thinking people generally”
Tendency is a matter of…..fact/law?
Fact, to be decided by the judge (no more jury trials)
Factors in determining if there is a tendency to defemae
a) Unique context (Berkoff v Burchill)
b) Strike at reputation (S.1(1) of DA 2013)
c) Jokes are not (Charleston v News Group Newspapers)
d) Allegations of misfortune; yes (Youssoupoff v MGM Pictures)
Interpretation according to the standard of right-thinking people - what case?
Byrne v Dean (golf club secretary)
How to ascertain the meaning of words?
Ordinary reader (Lewis v Daily Telegraph)
Doctrine of innuendo
May operate (Lewis v Daily Telegraph) Bane and antidote rule: if explained that imputation is not true, cannot succeed (Charleston v News Group Newspapers) May operate for special knowledge type situations (Cassidy v Daily Mirror)
Who is the ordinary reader?
The reasonable reader (Jeynes v News Magazines Limited)
Serious harm requirement - where?
S.1(1) of Defamation Act 2013
Factors for serious harm
Circumstances of publication (Cooke v MGN Ltd)
Definition of serious harm
Greater than substantial harm (Lachaux v Independent Print Ltd)
Requirements for statement referring to claimant
Name, description, pun or any reasonable inference (Knuppfer v London Express)
No need for direct referral (Cassidy v Daily Mirror)
Standing: companies
Possible but assessment of damages usually low (Jameel v Wall Street Journal Europe)
Standing: groups
Usually nope (Eastwood v Holmes; all lawyers are thieves) Exception: if the reference to group implicitly refers to every single member (Knuppfer v London Express; Browne v DC Thomson)
Standing: entities of government
Nope (Derbyshire CC v Times Newspaper)
Standing: political parties
Nope (Goldsmith v Bhoryul)
Strict liability?
Fault not relevant, only how right-thinking persons understood the publication
(E Hulton & Co v Jones, Newstead v London Express)
Exception to strict liability
Lookalike images (O Shea v MGN)
Meaning of publisher
Broad, anyone who helps make known the statement, even without a positive act (Byrne v Dean)
Rule for repeated publications
S.8, Single Publication Rule
Can sue distributors?
Only can sue if it is not reasonably practiceable to sue the author, editor, publisher (S.10 DA 2013)
Defence for distributors if named
S.1 DA 1996
a) Reasonable care (extent of responsibility, nature/circumstances, previous conduct of author/ed/pub)
b) Did not know/had no reason to know
Defence for website operators
S.5(2) DA 2013
Show that not the operator who posted the statement
Defence for website operators defeated…?
S.5(3) DA 2013
a) Not possible to identify the person who did
b) Claimant gave notice of claimant
c) Operator failed to respond to it
General defences: what are they
a) Truth
b) Honest opinion
c) Qualified privilege
d) Absolute privilege
Truth defence is found in
S.2 of DA 2013 (“Substantially true”)
Range of statement to be proven
Can support specific but not broad
Bookbinder v Tebbit
More than one imputation?
S.2(2)-S.2(3) DA 2013
Defence not automatically lost, court to balance proen and unproven imputations to infer eventual impact
Honest opinion defence found in
S.3 of DA 2013
a) Statement of opinion
b) Statement indicated basis of opinion at least in general terms (Stiller v Joseph)
c) Any honest person could have had that opinion based on any fact existing, or anything asserted to be a fact in privileged statement
When is honest opinion defence defeated?
If claimant shows that defendant did not hold the opinion
Qualified privilege for statement in public interest
10 factors list by Lord Nicholls (Reynolds v Times)
Codified in S.4 DA 2013 but list is converted to “all the circumstances”; media defendant
Statement made to protect interest or perform a duty = qualified privilege?
Yes (Toogood v Spyring)
Defeated if there is malice (Horrocks v Lowe)
If statement was accurate/impartial account…?
Need to show that it was reasonable to believe that publishing it is in the public interest (S.4(3) of DA 2013)
Al-Fagih v HH Saudi Research and Marketing
(Saudi community gossip about two political factions)
Does the qualified statement need to be fact/opinion
Either is ok (S.4(5) DA 2013)
How to determine if it was reasonable to believe publishing it was in the public interest
Court must make space for editorial judgment (S.4(4) DA 2013)
Overview of statements protected by qualified privilege
a) Statement made to protect interest or perform duty
b) Public interest
c) Statute/reports
Scope of reports covered by qualified privilege
a) Peer reviewed statements in academic journals (S.6 DA 2013), except for malice
b) Reports protected by qualified privilege (S.15 DA 1996)
Absolute privilege defence covers
a) Speech in court (Dawkins v Lord Rokeby)
b) Speech in Parliament (Art 9 of Bill of Rights)
c) Reports of court proceedings (S.14 DA 1996)
d) Official communication between state officials (Chatterton v SoS for India in Council)
Overview of remedies
a) Compensatory damages
b) Exemplary (punitive) damages
c) Mitigation
d) Offer of amends
e) Injunctions
Compensatory damages
Broad comparison to personal injury damages, and claimant should be compensated in a way that vindicates him/signals the untruth of the statement
(Kiam v MGN, The Gleaner Co Ltd v Abrahams)
Exemplary damages
Broome v Cassell (large profit from committing the tort that exceeds the amount that could be available in compensatory damages)
Mitigation
Scott v Sampson (if the defendant already has a bad reputation – to be proven)
Offer of amends
S.2-S.4 DA 1996
Types of injunctions
a) Interim
b) Final (rare)
When are interim injunctions granted
Where proceedings not concluded but claimant wants to prevent further publication – controversial since not proven to be tortious yet
Limits to interim injunctions
Any doubts about defamatory nature of statement, and if defendant is going to raise defence (Bonnard v Perryman)
Unchanged by HRA 1998 (Greene v Associated Newspapers)
