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Tort Law > Defamation > Flashcards

Defamation Flashcards

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1
Q

Elements of Claimant’s burden of proof

A

a) Finding defamatory statement
b) Statement must refer to claimant
c) Statement has been published

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2
Q

Elements for a) Finding defamatory statement

A

a) Tendency to defame
b) Interpretation according to standard of right-thinking opinion
c) Serious harm requirement

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3
Q

Test for tendency to defame

A

Broad non-exhaustive test; Sim v Stretch/Berkoff v Burchill; “lower claimant in estimation of right-thinking people generally”

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4
Q

Tendency is a matter of…..fact/law?

A

Fact, to be decided by the judge (no more jury trials)

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5
Q

Factors in determining if there is a tendency to defemae

A

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)

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6
Q

Interpretation according to the standard of right-thinking people - what case?

A

Byrne v Dean (golf club secretary)

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7
Q

How to ascertain the meaning of words?

A

Ordinary reader (Lewis v Daily Telegraph)

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8
Q

Doctrine of innuendo

A 
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)
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9
Q

Who is the ordinary reader?

A

The reasonable reader (Jeynes v News Magazines Limited)

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10
Q

Serious harm requirement - where?

A

S.1(1) of Defamation Act 2013

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11
Q

Factors for serious harm

A

Circumstances of publication (Cooke v MGN Ltd)

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12
Q

Definition of serious harm

A

Greater than substantial harm (Lachaux v Independent Print Ltd)

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13
Q

Requirements for statement referring to claimant

A

Name, description, pun or any reasonable inference (Knuppfer v London Express)
No need for direct referral (Cassidy v Daily Mirror)

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14
Q

Standing: companies

A

Possible but assessment of damages usually low (Jameel v Wall Street Journal Europe)

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15
Q

Standing: groups

A 
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)
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16
Q

Standing: entities of government

A

Nope (Derbyshire CC v Times Newspaper)

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17
Q

Standing: political parties

A

Nope (Goldsmith v Bhoryul)

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18
Q

Strict liability?

A

Fault not relevant, only how right-thinking persons understood the publication
(E Hulton & Co v Jones, Newstead v London Express)

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19
Q

Exception to strict liability

A

Lookalike images (O Shea v MGN)

20
Q

Meaning of publisher

A

Broad, anyone who helps make known the statement, even without a positive act (Byrne v Dean)

21
Q

Rule for repeated publications

A

S.8, Single Publication Rule

22
Q

Can sue distributors?

A

Only can sue if it is not reasonably practiceable to sue the author, editor, publisher (S.10 DA 2013)

23
Q

Defence for distributors if named

A

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

24
Q

Defence for website operators

A

S.5(2) DA 2013

Show that not the operator who posted the statement

25
Q

Defence for website operators defeated…?

A

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

26
Q

General defences: what are they

A

a) Truth
b) Honest opinion
c) Qualified privilege
d) Absolute privilege

27
Q

Truth defence is found in

A

S.2 of DA 2013 (“Substantially true”)

28
Q

Range of statement to be proven

A

Can support specific but not broad

Bookbinder v Tebbit

29
Q

More than one imputation?

A

S.2(2)-S.2(3) DA 2013

Defence not automatically lost, court to balance proen and unproven imputations to infer eventual impact

30
Q

Honest opinion defence found in

A

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

31
Q

When is honest opinion defence defeated?

A

If claimant shows that defendant did not hold the opinion

32
Q

Qualified privilege for statement in public interest

A

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

33
Q

Statement made to protect interest or perform a duty = qualified privilege?

A

Yes (Toogood v Spyring)

Defeated if there is malice (Horrocks v Lowe)

34
Q

If statement was accurate/impartial account…?

A

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)

35
Q

Does the qualified statement need to be fact/opinion

A

Either is ok (S.4(5) DA 2013)

36
Q

How to determine if it was reasonable to believe publishing it was in the public interest

A

Court must make space for editorial judgment (S.4(4) DA 2013)

37
Q

Overview of statements protected by qualified privilege

A

a) Statement made to protect interest or perform duty
b) Public interest
c) Statute/reports

38
Q

Scope of reports covered by qualified privilege

A

a) Peer reviewed statements in academic journals (S.6 DA 2013), except for malice
b) Reports protected by qualified privilege (S.15 DA 1996)

39
Q

Absolute privilege defence covers

A

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)

40
Q

Overview of remedies

A

a) Compensatory damages
b) Exemplary (punitive) damages
c) Mitigation
d) Offer of amends
e) Injunctions

41
Q

Compensatory damages

A

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)

42
Q

Exemplary damages

A

Broome v Cassell (large profit from committing the tort that exceeds the amount that could be available in compensatory damages)

43
Q

Mitigation

A

Scott v Sampson (if the defendant already has a bad reputation – to be proven)

44
Q

Offer of amends

A

S.2-S.4 DA 1996

45
Q

Types of injunctions

A

a) Interim

b) Final (rare)

46
Q

When are interim injunctions granted

A

Where proceedings not concluded but claimant wants to prevent further publication – controversial since not proven to be tortious yet

47
Q

Limits to interim injunctions

A

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)

Tort Law (11 decks)

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