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Tort Law > Defamation > Flashcards

Defamation Flashcards

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1
Q

Defamation definition

A

the publication of a statement which reflects on a person’s reputation and tends to lower him in the eyes of right-thinking members of society (Sim v Stretch)

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2
Q

Who can sue

A

Natural Persons and corporate bodies (McDonalds v Steel)

- McDonalds sued a group of protestors

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3
Q

Local authorities cannot sue

A

Derbyshire CC v Times

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4
Q

Political Parties cannot sue

A

Goldsmith v Bhoyrul

- referendum party 1997

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5
Q

Who can be sued?

A

Anyone who publishes a defamatory statement.

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6
Q

Defemation can take the form of

A

Libel or Slander

- definition set out in Youssopoff

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7
Q

Libel

A

The publication of a defamatory statement in any permanent form
- damage is presumed

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8
Q

Slander

A

Is temporary or transient e.g. gestures or word spoken in a conversation.
- slander requires proof of damage

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9
Q

Instances where slander does not require proof of damage

A
  • the commission of an imprisonable offence. (Gray v Jones) [man told to leave an establishment as he had been a criminal]
  • unfit to carry out his trade or profession (McManus v Beckham)
  • Imputation of unfitness for business (s. 2 Defamation Act 1952)
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10
Q

For each statement, the claimant must establish the following

A
  • The statement must be Defamatory
  • The statement must refer to the claimant
  • The statement must be published
  • The publication of the statement must have caused, or likely to cause, serious harm to the claimants reputation.
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11
Q

To find a statement defamatory, two things are needed

A
  • the establishment of the meaning of the words

- whether the meaning is defamatory

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12
Q

Three methods of interpreting the meaning of the words in a statement

A
  • Ordinary meaning
  • Innuendo
  • False innuendo
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13
Q

Ordinary meaning of a statement

A

The literal meaning as ordinary persons would understand it to be (Lewis v Daily Telegraph)

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14
Q

The entire statement must be read in context

A

Charleston v News Group Newspapers

- photoshopped neighbours actors imposed on pornographic models that came with a caption saying it was fake

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15
Q

Innuendo meaning

A

Whether a reasonable person would interpret the statement as having a particular meaning. (Baturina v Times Newspapers)

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16
Q

False innuendo

A

a false meaning resulting from slang and colloquialisms etc.

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17
Q

An advert implying a policeman had disgusting feet for using the foot bath was a false innuendo

A

Plumb v Keyes Sanitary Compounds

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18
Q

The fraud squad investigating a company would not be seen by a reasonable person that the company would have committed a crime - not an innuendo

A

Lewis v Daily Telegraph Ltd

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19
Q

the publication of an cartoon amateur golfer in an advert was held to be a defamatory statement as it implied he had accepted payment from the advertisers.

A

Tolley v JS Fry

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20
Q

Defamatory in Law (DIL)

A

Would it cause people to:

  • hate the claimant
  • think less of him
  • to laugh at him
  • to avoid him
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21
Q

DIL: if the statement ‘tended to lower the plaintiff in the estimation fo right thinking members of society generally by exposing him to hatred, contempt or ridicule’

A

Sim v Stretch

- defendant had accused him of trying to steal a servant

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22
Q

DIL: ‘material that would cause hatred, contempt, or ridicule.

A

Berkoff v Burchill

- film director deemed hideously ugly

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23
Q

DIL: ‘material that would lead to the claimant being shunned or avoided

A

Youssoupoff

- Member of Russian royal family sued about a film that said she was raped by Rasputin.

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24
Q

The image of the person situated with other of a different ilk was seen as defamatory

A

Monson v Tussauds Ltd

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25
Q

A journalist who had said that an artist had a ‘big bum’ and the ‘kind of stage presence that blocks lavatories’ had defamed her

A

Cornwell v Myskow

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26
Q

It was not defamatory when he was shunned and avoided for reporting an illegal card game at his club, because right thinking persons would not think less of someone who had reported a crime.

A

Byrne v Dean

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27
Q

A man with a serious criminal record could not be defamed because he had no reputation left

A

Williams v MGN

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28
Q

The case needs to be looked at as a whole and not just the article headline

A

Charleston v NGN Ltd

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29
Q

The statement must refer to the claimant

A

Does not need to refer to the claimant by name, so long as the reasonable person would reading it would know it was referring to the claimant.

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30
Q

A barrister with the same name as a churchwarden could recover when several people testified that they though that the statement was about him.

A

Hulton v Jones

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31
Q

Reference by innuendo to a photo of her husband and another woman was defamation by considering people who knew her see her as sinfully living with a man she was not married to.

A

Cassidy v Daily Mirror

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32
Q

It does not matter about misspelling when it comes to statements made to the claimant

A

Bryne v Deane

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33
Q

It doesn’t matter that the newspaper didn’t intend to refer to a certain person, it was still defamatory

A

Newstead v London Express

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34
Q

Unintentional reference

A

Still possible for a statement to be defamatory if reasonable persons think that ti refers to someone else. (Newstead v London Express)

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35
Q

A photo of a porn advert containing someone who looked likely the claimant was held not to be unintentionally defamatory because it would pose too high a burden on publishers to check every advert.

A

O’Shea v MGN

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36
Q

A reference to a class or group of persons

A

is generally not actionable - unless it is a corporate body

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37
Q

A small political party were labelled as Nazi sympathisers - this was not held to be defamatory

A 
Knupffer v London Express
- a class of 24 people was too large
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38
Q

A member of a defined class may sue if the class is sufficiently small

A

Foxcroft v Lacy

- 17 people in a murder conspiracy was small enough of a group to sue

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39
Q

A member of a defined class may sue if the statement is worded to specifically refer to a member or members of that class

A

Farrington v Leigh

- statements made about a police unit ‘stalkers men’

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40
Q

Published

A

D has communicated the statement to at least one party

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41
Q

An insulting private letter was not published because the defendant only showed it to the claimant

A

Hinderer v Cole

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42
Q

Wrongly addressed letters, open messages, postcards and letters likely to be opened by a 3rd party are all examples of publication

A

Theaker v Richardson

- rival council candidate sent a letter to the other with ‘inflammatory language’; his wife opened it.

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43
Q

Overheard conversations or statements likely to be repeated are considered published

A

McManus v Beckham

- A signed photo of david beckham was fake

44
Q

Online publications are considered published

A

Godfrey v Demon Internet

45
Q

Letters and statements that would not foreseeably be opened by 3rd parties are not considered published

A

Huth v Huth

- nosey butler

46
Q

Statements to the defendant’s spouse are not considered published

A

Wennhak v Morgan

- talking about a servant

47
Q

Internet providers were not liable for what people said

A

Bunt v Tilley

48
Q

If someone is playing an active role in publishing the statement then they are liable

A

Godfrey v Demon Internet

49
Q

If you don’t take defamatory statement’s down then you’re associating with them.

A

Tamiz v Google

50
Q

Multiple publication

A

Used to be that you could sue everytime that it was seen

Loutchansky v Times Newspaper

51
Q

Single Publication Rule

A

Defamation Act 2013

- The time limitation for a defamation is 1 year after the first publication

52
Q

Publication test for defamation:

A

The claimant must establish on the balance of probabilities that the publication has caused serious harm to the claimant’s reputation.

53
Q

Injury to feelings alone will not be enough, without evidence of serious harm that serious harm has been caused by publication

A

Sobrinho v Impressa Publishing

54
Q

The claimant cannot sue unless they meet the the threshold test

A

Thornton v Telegraph

55
Q

Serious harm can be inferred where a statement has a highly defamatory meaning and has been widely published

A

Cooke v MGN

56
Q

A statement is not defamatory unless the statement has caused or likely to cause harm to the reputation of C

A

s. 1 Defamation Act 2013

57
Q

Companies under the Defamation Act

A

financial loss must be shown

58
Q

A statement is still defamatory if there is a tendency to cause harm i.e likely to/ a significant chance of suffering

A

Lachaux v Independent Print Ltd

59
Q

Defences in defamation

A
  • Truth
  • Honest Opinion
  • Absolute Privilege
  • Qualified Privilege
  • Publication on a matter of public interest
  • Innocent dissemination
60
Q

If the defendant can prove that the statement is substantially true, there is no liability for defamation

A

s. 2 Defamation Act 2013

61
Q

It is only the statement’s defamatory ‘sting’ that the claimant needs to prove is substantially true

A

Grobbelaar v News Group

- football match-fixing but had not actually thrown away matches

62
Q

The defence of truth was not effective when a prison sentence was reported a week longer than it was in fact as it made no difference to his reputation

A

Alexander v North Eastern Railway.

- stated three weeks rather than two

63
Q

Where there are multiple defamatory statements but not all can be proved to be substantially true, the defence of truth will not fail if the unproven statements do no seriously harm the claimants reputation.

A

Irving v Penguin Books

- author accused of being a holocaust denier.

64
Q

If successful, truth is a complete defence

A

Rothschild v Associated Newspapers Ltd

- article concerning the buying of Russian aluminium plants

65
Q

The defence of honest opinion

A

s. 3 Defamation Act 2013

- it is a complete defence.

66
Q

The statement must be a statement of opinion to qualify for the HO defence

A

Convery v Irish Newspapers

- unflattering review of a restaurant

67
Q

The line between opinion and fact is often blurred

A

British Chiropractic Ass. v Singh

  • not a ‘jot of evidence’ ‘bogus treatments’
  • he thought the actual evidence was not ‘worthwhile’
68
Q

The statement must have indicated the basis of of the opinion i.e. must explicitly state the facts on which it is based

A

Spiller v Joseph

69
Q

It must have been possible for an honest person to hold the opinion based upon either

A
  • a fact existing at the time the statement was published

- anything asserted to be a fact in a statement prior to it’s publication.

70
Q

The defendant must honestly hold the opinion. The statement cannot be malicious

A

Thomas v Bradbury

- libel case about the publishing of a mans memoirs in Punch

71
Q

Absolute privilege

A

Certain statement can never be defamatory

  • parliamentary statements & reports
  • diplomatic meetings
  • in court
  • to the police
  • between a solicitor and client
  • between spouses
72
Q

Freedom of speech of parliament

A

Art 9 Bill of Rights

A v United Kingdom: this only applies during debate

73
Q

MP’s are allowed to waive their parliamentary privilege for a court to look into them

A

Defamation Act 1996 s. 13

74
Q

Communication s between officers of the state in the course of official duty are protected by absolute privilege

A

s.14 Defamation Act 1996

75
Q

Qualified Privilege

A

this defence applies when there are reciprocal legal, moral or social duties to inform and receive the statement (Adam v Ward)
- defamatory statement made about an army general in the house of commons

76
Q

Qualified Privilege only protects statements made without malice

A

Horrocks v Lowe

77
Q

Bringing wrong-doing to a businessman’s attention in order to protect a business interest was accepted as qualified privilege

A

Angel v HH Bushell

-

78
Q

Investigations by local authority are accepted as qualified privilege

A

Not in Lille v Newcastle as the report was written maliciously and groundlessly
- investigation into child abuse

79
Q

Qualified privilege was an acceptable defence in a peer reviewed statement in a scientific or academic journal unless it was deemed malicious.

A

s. 6 Defamation Act 1996

80
Q

When you make a statement and you don’t have a genuine need to make the statement the you don’t have a defence of qualified privilege

A

Watt v Longsdon

81
Q

If there is an Art 8 HRA violation then this exceeds the scope of qualified privilege.

A

Clift v Slough BC

82
Q

Publication on a matter of public interest

A

s. 4 Defamations Act 2013

The defence for responsible journalism in the public interest

83
Q

Two requirement for the defence of a matter of public interest under the s. 4 Defamation Act 2013

A
  • the statement was a matter of public interest

- the defendant reasonably believed that publishing the statement was in the public interest.

84
Q

Did the defendant meet the standards of responsible journalism?

A

Set out in s. 4 Defamation Act 2013

85
Q

The more serious the allegation the larger the public interest necessary to justify publication

A

Jameel v Wall Street Europe

- allegation of potential funding for terrorism

86
Q

The tone of the article will be taken into consideration

A

Grobbelaar v News Group International

87
Q

Weighing up the factors of responsible journalism will be a balancing exercise

A

GKR Karate v Yorkshire Post

- statement made about unqualified karate teachers

88
Q

Any lingering doubts should resolved in favour of publication

A

Lord Nicholls

89
Q

If the statement forms part of an accurate and impartial account, the defendant need not take steps to verify the truth of the facts stated.

A

Roberts v Gable

- article covered BNP dispute

90
Q

S. 4 Defamation act requires the court to make such allowance for editorial judgement as it considers appropriate

A

Flood v Times Newspapers - a test for responsible journalism.
- a policeman accused of taking bribes from Russian oligarchs

91
Q

Reynolds Test for publication of a matter of public interest (old law)

A

Reynolds v Times Newspaper (old Test) [ Teasoch had mislead the Irish parliament]

  • The seriousness of the allegation
  • the nature of the information
  • the source of the information
92
Q

Innocent dissemination

A

Only applies to distributors, not editors or publishers

Outlined in s. 1 Defamation Act 1996

93
Q

Defence of innocent dissemination under s.1 Defamation Act 1996

A
  • He was not the author, editor, or publisher
  • he took reasonable care
  • he did not know that the publication was defamatory
94
Q

An internet service provider was not a publisher so was allowed to use the defence of innocent dissemination

A

Godfrey v Demon Internet

- statements about Godfrey were not removed until they were brought to the attention of Demon Internet

95
Q

Offer to make amends

A

A partial defence where the defence has innocently published an taken reasonable care to ensure its accuracy
Hulton v Jones
- article written about a fictitious ‘Artemus jones’; the real one sued.

96
Q

The requirement of ‘an offer to make amends’ are set out in

A

ss. 2-4 Defamation Act 1996
- the statement was made innocently
- the defendant accepts that the statement is false
- the defendant offers to publish a correction and an apology
- the defendant pays the claimant’s costs and any agreed damages (Milne)

97
Q

Operators of websites

A

s. 5 Defamation Act 2013

98
Q

Remedy of an injunction

A

to prevent further publication of defamatory material

99
Q

The Remedy of Damages

A

Where publication has already occured

100
Q

The level of damages is unlikely to go beyond 200k

A

Lille v Newcastle

101
Q

Judges now decide the level of damages and juries sometimes gave too much

A

Steel v Morris

102
Q

The Court of Appeal said that 275k was too much

A

John v MGN Ltd

103
Q

Damages were only worth £1

A

Grobbelaar v News Group Newspapers

104
Q

Damages were set at a low level in order not to kill free speech in the political arena

A

Barron v Vines

- politicians are expected to have thicker skin

105
Q

Crime and Courts act 2013

A

s. 34
- if you are defamed by a newspaper then you would take it to the independent regulator; IMPRESS
- most signed up to to IPSO

106
Q

s. 12 Defamation Act

A

the court may find the defendant to have published a summary of it’s judgement, where it had decided in favour of the claimant.

107
Q

s. 13 Defamation Act

A

Enables the court to order those distributing a defamatory publication to stop doing so.

Tort Law (5 decks)

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