Defamation Flashcards
Defamation definition
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)
Who can sue
Natural Persons and corporate bodies (McDonalds v Steel)
- McDonalds sued a group of protestors
Local authorities cannot sue
Derbyshire CC v Times
Political Parties cannot sue
Goldsmith v Bhoyrul
- referendum party 1997
Who can be sued?
Anyone who publishes a defamatory statement.
Defemation can take the form of
Libel or Slander
- definition set out in Youssopoff
Libel
The publication of a defamatory statement in any permanent form
- damage is presumed
Slander
Is temporary or transient e.g. gestures or word spoken in a conversation.
- slander requires proof of damage
Instances where slander does not require proof of damage
- 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)
For each statement, the claimant must establish the following
- 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.
To find a statement defamatory, two things are needed
- the establishment of the meaning of the words
- whether the meaning is defamatory
Three methods of interpreting the meaning of the words in a statement
- Ordinary meaning
- Innuendo
- False innuendo
Ordinary meaning of a statement
The literal meaning as ordinary persons would understand it to be (Lewis v Daily Telegraph)
The entire statement must be read in context
Charleston v News Group Newspapers
- photoshopped neighbours actors imposed on pornographic models that came with a caption saying it was fake
Innuendo meaning
Whether a reasonable person would interpret the statement as having a particular meaning. (Baturina v Times Newspapers)
False innuendo
a false meaning resulting from slang and colloquialisms etc.
An advert implying a policeman had disgusting feet for using the foot bath was a false innuendo
Plumb v Keyes Sanitary Compounds
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
Lewis v Daily Telegraph Ltd
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.
Tolley v JS Fry
Defamatory in Law (DIL)
Would it cause people to:
- hate the claimant
- think less of him
- to laugh at him
- to avoid him
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’
Sim v Stretch
- defendant had accused him of trying to steal a servant
DIL: ‘material that would cause hatred, contempt, or ridicule.
Berkoff v Burchill
- film director deemed hideously ugly
DIL: ‘material that would lead to the claimant being shunned or avoided
Youssoupoff
- Member of Russian royal family sued about a film that said she was raped by Rasputin.
The image of the person situated with other of a different ilk was seen as defamatory
Monson v Tussauds Ltd
A journalist who had said that an artist had a ‘big bum’ and the ‘kind of stage presence that blocks lavatories’ had defamed her
Cornwell v Myskow
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.
Byrne v Dean
A man with a serious criminal record could not be defamed because he had no reputation left
Williams v MGN
The case needs to be looked at as a whole and not just the article headline
Charleston v NGN Ltd
The statement must refer to the claimant
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.
A barrister with the same name as a churchwarden could recover when several people testified that they though that the statement was about him.
Hulton v Jones
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.
Cassidy v Daily Mirror
It does not matter about misspelling when it comes to statements made to the claimant
Bryne v Deane
It doesn’t matter that the newspaper didn’t intend to refer to a certain person, it was still defamatory
Newstead v London Express
Unintentional reference
Still possible for a statement to be defamatory if reasonable persons think that ti refers to someone else. (Newstead v London Express)
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.
O’Shea v MGN
A reference to a class or group of persons
is generally not actionable - unless it is a corporate body
A small political party were labelled as Nazi sympathisers - this was not held to be defamatory
Knupffer v London Express - a class of 24 people was too large
A member of a defined class may sue if the class is sufficiently small
Foxcroft v Lacy
- 17 people in a murder conspiracy was small enough of a group to sue
A member of a defined class may sue if the statement is worded to specifically refer to a member or members of that class
Farrington v Leigh
- statements made about a police unit ‘stalkers men’
Published
D has communicated the statement to at least one party
An insulting private letter was not published because the defendant only showed it to the claimant
Hinderer v Cole
Wrongly addressed letters, open messages, postcards and letters likely to be opened by a 3rd party are all examples of publication
Theaker v Richardson
- rival council candidate sent a letter to the other with ‘inflammatory language’; his wife opened it.
Overheard conversations or statements likely to be repeated are considered published
McManus v Beckham
- A signed photo of david beckham was fake
Online publications are considered published
Godfrey v Demon Internet
Letters and statements that would not foreseeably be opened by 3rd parties are not considered published
Huth v Huth
- nosey butler
Statements to the defendant’s spouse are not considered published
Wennhak v Morgan
- talking about a servant
Internet providers were not liable for what people said
Bunt v Tilley
If someone is playing an active role in publishing the statement then they are liable
Godfrey v Demon Internet
If you don’t take defamatory statement’s down then you’re associating with them.
Tamiz v Google
Multiple publication
Used to be that you could sue everytime that it was seen
Loutchansky v Times Newspaper
Single Publication Rule
Defamation Act 2013
- The time limitation for a defamation is 1 year after the first publication
Publication test for defamation:
The claimant must establish on the balance of probabilities that the publication has caused serious harm to the claimant’s reputation.
Injury to feelings alone will not be enough, without evidence of serious harm that serious harm has been caused by publication
Sobrinho v Impressa Publishing
The claimant cannot sue unless they meet the the threshold test
Thornton v Telegraph
Serious harm can be inferred where a statement has a highly defamatory meaning and has been widely published
Cooke v MGN
A statement is not defamatory unless the statement has caused or likely to cause harm to the reputation of C
s. 1 Defamation Act 2013
Companies under the Defamation Act
financial loss must be shown
A statement is still defamatory if there is a tendency to cause harm i.e likely to/ a significant chance of suffering
Lachaux v Independent Print Ltd
Defences in defamation
- Truth
- Honest Opinion
- Absolute Privilege
- Qualified Privilege
- Publication on a matter of public interest
- Innocent dissemination
If the defendant can prove that the statement is substantially true, there is no liability for defamation
s. 2 Defamation Act 2013
It is only the statement’s defamatory ‘sting’ that the claimant needs to prove is substantially true
Grobbelaar v News Group
- football match-fixing but had not actually thrown away matches
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
Alexander v North Eastern Railway.
- stated three weeks rather than two
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.
Irving v Penguin Books
- author accused of being a holocaust denier.
If successful, truth is a complete defence
Rothschild v Associated Newspapers Ltd
- article concerning the buying of Russian aluminium plants
The defence of honest opinion
s. 3 Defamation Act 2013
- it is a complete defence.
The statement must be a statement of opinion to qualify for the HO defence
Convery v Irish Newspapers
- unflattering review of a restaurant
The line between opinion and fact is often blurred
British Chiropractic Ass. v Singh
- not a ‘jot of evidence’ ‘bogus treatments’
- he thought the actual evidence was not ‘worthwhile’
The statement must have indicated the basis of of the opinion i.e. must explicitly state the facts on which it is based
Spiller v Joseph
It must have been possible for an honest person to hold the opinion based upon either
- a fact existing at the time the statement was published
- anything asserted to be a fact in a statement prior to it’s publication.
The defendant must honestly hold the opinion. The statement cannot be malicious
Thomas v Bradbury
- libel case about the publishing of a mans memoirs in Punch
Absolute privilege
Certain statement can never be defamatory
- parliamentary statements & reports
- diplomatic meetings
- in court
- to the police
- between a solicitor and client
- between spouses
Freedom of speech of parliament
Art 9 Bill of Rights
A v United Kingdom: this only applies during debate
MP’s are allowed to waive their parliamentary privilege for a court to look into them
Defamation Act 1996 s. 13
Communication s between officers of the state in the course of official duty are protected by absolute privilege
s.14 Defamation Act 1996
Qualified Privilege
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
Qualified Privilege only protects statements made without malice
Horrocks v Lowe
Bringing wrong-doing to a businessman’s attention in order to protect a business interest was accepted as qualified privilege
Angel v HH Bushell
-
Investigations by local authority are accepted as qualified privilege
Not in Lille v Newcastle as the report was written maliciously and groundlessly
- investigation into child abuse
Qualified privilege was an acceptable defence in a peer reviewed statement in a scientific or academic journal unless it was deemed malicious.
s. 6 Defamation Act 1996
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
Watt v Longsdon
If there is an Art 8 HRA violation then this exceeds the scope of qualified privilege.
Clift v Slough BC
Publication on a matter of public interest
s. 4 Defamations Act 2013
The defence for responsible journalism in the public interest
Two requirement for the defence of a matter of public interest under the s. 4 Defamation Act 2013
- the statement was a matter of public interest
- the defendant reasonably believed that publishing the statement was in the public interest.
Did the defendant meet the standards of responsible journalism?
Set out in s. 4 Defamation Act 2013
The more serious the allegation the larger the public interest necessary to justify publication
Jameel v Wall Street Europe
- allegation of potential funding for terrorism
The tone of the article will be taken into consideration
Grobbelaar v News Group International
Weighing up the factors of responsible journalism will be a balancing exercise
GKR Karate v Yorkshire Post
- statement made about unqualified karate teachers
Any lingering doubts should resolved in favour of publication
Lord Nicholls
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.
Roberts v Gable
- article covered BNP dispute
S. 4 Defamation act requires the court to make such allowance for editorial judgement as it considers appropriate
Flood v Times Newspapers - a test for responsible journalism.
- a policeman accused of taking bribes from Russian oligarchs
Reynolds Test for publication of a matter of public interest (old law)
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
Innocent dissemination
Only applies to distributors, not editors or publishers
Outlined in s. 1 Defamation Act 1996
Defence of innocent dissemination under s.1 Defamation Act 1996
- He was not the author, editor, or publisher
- he took reasonable care
- he did not know that the publication was defamatory
An internet service provider was not a publisher so was allowed to use the defence of innocent dissemination
Godfrey v Demon Internet
- statements about Godfrey were not removed until they were brought to the attention of Demon Internet
Offer to make amends
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.
The requirement of ‘an offer to make amends’ are set out in
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)
Operators of websites
s. 5 Defamation Act 2013
Remedy of an injunction
to prevent further publication of defamatory material
The Remedy of Damages
Where publication has already occured
The level of damages is unlikely to go beyond 200k
Lille v Newcastle
Judges now decide the level of damages and juries sometimes gave too much
Steel v Morris
The Court of Appeal said that 275k was too much
John v MGN Ltd
Damages were only worth £1
Grobbelaar v News Group Newspapers
Damages were set at a low level in order not to kill free speech in the political arena
Barron v Vines
- politicians are expected to have thicker skin
Crime and Courts act 2013
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
s. 12 Defamation Act
the court may find the defendant to have published a summary of it’s judgement, where it had decided in favour of the claimant.
s. 13 Defamation Act
Enables the court to order those distributing a defamatory publication to stop doing so.
