Defamation Flashcards
What are the 4 elements of Defamation?
- D made a defamatory imputation
- the defamatory imputation identified C
- The defamatory imputation was published
- D is unable to prove a valid defence
What has defamation been defined as by Rogers WVH?
as the publication of an untrue statement which reflects on a person’s reputation and tends to slower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him
What are the 2 torts defamation comprises of?
libel and slander
What is libel?
an act of defamation in permanent form (writing)
What is slander?
an act of defamation in transient form (speaking)
What is the difference between slander and libel?
Slander requires that C suffer pecuniary loss (money) as a result of imputation (Ratcliffe v Evans)
whereas libel can be made out on serious harm to reputation
Usually slander requires that C suffers pecuniary loss as a result of imputation however when can slander be actionable without pecuniary loss?
where D imputes that
C was guilty of an imprisonable offence or
C was unfit, incompetent or dishonest where C is in a profession
What did the Defamation Act 2013 s.1 introduce?
a serious harm requirement intended to ensure that only the most egregious cases are brought; this has deposed of the
What did the Defamation Act 2013replace the common law defence of justification with?
honest opinion with truth
What did the Defamation Act came from the result of?
long campaign suggesting the common law was not fit for purpose.
Arguably what did the Act turn english libel laws from and to?
from an international laughing stock to an international blueprint
Although some have argued that the Act turned english libel laws from an international laughing stock to an international blueprint, what have critics such as Matthew Collins described the act as?
Frankenstein’s monster with complications and piecemeal reforms
Who is it suggested are the main winners of the Act; though no free speech or open debate?
for lawyers who spend their time arguing over the extent to which the new statute does or does not change the common law
What legislation established that you cannot defame the dead
Law Reform Act 1934, s1
Who lacks capacity to sue in defamation?
Governmental and public authorities
What section of the Defamation Act allows a company to bring a defamation case so long as the harm is manifested as ‘serious financial loss’. This is not a high hurdle as all destruction to public image could extend to potential losses.
s.1(2)
Although the Defamation act restricts the extent to which companies can bring a defamation case through s.1(2) in that harm is manifested as ‘serious financial loss’ What is a problem?
This is not a high hurdle as all destruction to public image could extend to potential losses.
What could be the effect of allowing companies to make claims of defamation?
a chilling effect upon potential critics
What case demonstrates that governmental and public authorities lack capacity to sue in defamation?
Derbyshire County Council
Derbyshire County Council demonstrates that governmental and public authorities lack capacity to sue in defamation?Discussl
In this case the Council sued a newspaper over articles that questioned the proprietary of its financial dealings.
Held:
HOL held that council was unable to sue in defamation as it is of high public importance that a democratically elected governmental body should be open to uninhibited public criticism and would otherwise place an undesirable fetter on the freedom of speech
In this case the Council sued a newspaper over articles that questioned the proprietary of its financial dealings.
Held:
HOL held that council was unable to sue in defamation as it is of high public importance that a democratically elected governmental body should be open to uninhibited public criticism and would otherwise place an undesirable fetter on the freedom of speech
Derbyshire County Council demonstrates that governmental and public authorities lack capacity to sue in defamation?Discussl
The reasoning in Derbyshire was applied to political parties in Goldsmith but this does not prevent politician and parliamentarians from bringing defamation cases as what?
as did Lord McAlpine for tweets linking him to child sex abuse
What did Lord Bingham comment in Jameel v Wall Street Journal in regards to damaging libel?
that a damaging libel may lower a company’s image that they go to lengths to protect, and in the eyes of the public is a value the law should protect
When is the only time non-domiciled persons can sue in Englan and Wales?
where the courts are satisfied that of all places in the world in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement
-s.9(2) Defamation Act
What part of the Defamation Act states that the only time non-domiciled persons can sue in Englan and Wales iswhere the courts are satisfied that of all places in the world in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement
?
s.9(2)
It is important to determine if the statement is defamatory. This is outlined in s.1(1) and (2) what do they say?
1) a statement is not defamatory unless its publication has or is likely to cause serious harm to the reputation of the claimant and
2) in regards to the reputation of a body that trades for profit, It is not serious harm unless it has or is likely to cause the body serious financial loss
Which case held that the words or statement must tend to ‘lower the claimant in the estimation of right thinking members of society in general causing them to be shunned or avoided’
sim v Stretch
What was the judgement of Sim v Stretch
Is the statement defamatory
the words or statement must tend to ‘lower the claimant in the estimation of right thinking members of society in general causing them to be shunned or avoided’
Which case established that The claimant does not have to prove that the statement in fact adversely affected the attitude of other people towards him; it is sufficient that there was a likelihood.
Thorton v Telegraph Media
Is the statement defamatory what did the case Thorton v Telegraph Media establish?
established that The claimant does not have to prove that the statement in fact adversely affected the attitude of other people towards him; it is sufficient that there was a likelihood.
In determining whether a statement is defamatory, the ‘right-thinking member of society’ will have important characteristics; which case was this established?
Lewis v Daily Telegraph
How di Lewis v Daily Telegraph determine the characteristics of a right thinking member of society?
- someone who is fair minded
- not avid to scandal
- not overly suspicious or naive
- not bound to select one defamatory meaning when non defamatory meanings are possible
It is not always necessary to provide evidence of serious harm. This can sometimes be inferred as in which case?
Lachaux v Indepenadnt Print
It is not always necessary to provide evidence of serious harm. This can sometimes be inferred as inLachaux v Indepenadnt Print
Discuss
Allegations of domestic abuse were made against the claimant. The claimant claimed that this was part of a defamatory campaign by his ex wife.
Held: Defamation established. The gravity of the claims were so serious that it would be appropriate to draw an inference of serious repetitional harm.
Allegations of domestic abuse were made against the claimant. The claimant claimed that this was part of a defamatory campaign by his ex wife.
Held: Defamation established. The gravity of the claims were so serious that it would be appropriate to draw an inference of serious repetitional harm.
It is not always necessary to provide evidence of serious harm. This can sometimes be inferred as inLachaux v Indepenadnt Print
Discuss
To be defamatory, the words must reduce a person’s reputation among ‘right thinking people’. It does not matter if certain people would in fact think less of a person as a result of the words:
What case was this established in ?
Byrne v Deane
To be defamatory, the words must reduce a person’s reputation among ‘right thinking people’. It does not matter if certain people would in fact think less of a person as a result of the words:
this established inByrne v Deane
Discuss
Notice placed in golf club implying claimant informed police about illegal gambling machines.
Held: no defamation. Right thinking people would not think less of a person who reports criminal activity.
Notice placed in golf club implying claimant informed police about illegal gambling machines.
Held: no defamation. Right thinking people would not think less of a person who reports criminal activity.
To be defamatory, the words must reduce a person’s reputation among ‘right thinking people’. It does not matter if certain people would in fact think less of a person as a result of the words:
this established inByrne v Deane
Discuss
The courts will look at the statements in context. For example, reporting a marriage proposal would not be defamatory but reporting that it happened in a drunken state could be:
What case established this?
Church v MGN
Which case noted thatthe HOL held that defendants would not be liable for an article featuring a degrading fake photograph if the accompanying text made it clear they were not real. If the text was hidden away though, the courts could take a different view.
Charleston
Under right thinking members of society, what did Charleston establish?
the HOL held that defendants would not be liable for an article featuring a degrading fake photograph if the accompanying text made it clear they were not real. If the text was hidden away though, the courts could take a different view.
What has Kirby criticised against the decisions in Charleston and Byrne?
that the decisions ignored the realities of how ordinary people recieve an are intended to recieve communications of this kind
Who stated that decisions like Charleston and Byrneignored the realities of how ordinary people recieve an are intended to recieve communications of this kind ?
Kirby
Abusive statements can be defamatory if it would lower the person’s reputation in right minded people:
Which two cases was this considered in?
berkoff v Burchill and
lewis v Dailey Telegraph
Abusive statements can be defamatory if it would lower the person’s reputation in right minded people:
this was considered in berkoff v burchill
discuss case
the journalist defendant published work bout the claimant being hideously ugly and comparing him to Frankenstein’s monster
HELD:
the statements could be defamatory as they could hold him up to contempt, scorn or ridicule
. Statements can be defamation where there is background knowledge or information that makes people think worse of the defendant. (innuendo)
What are two kinds of innuendo?
false innuendo: an inferred or indirect meaning that could be understood by anyone and
true innuendo: not demfamatory on its face but rendered so because readers will know of extrinsic circumstances
What is an example of a false innuendo?
monson v Tussauds
Monson v Tussauds is an example of a false innuendo. Discuss case
The claimant was cleared of a murder. The defendant created a wax model of the claimant with a gun displayed close to depictions of notorious murder scenes.
Held: The models were defamatory because of the implied meaning of the exhibition.
McAlpine v Bercow is an example of an abusive statement and a true innuendo innuendo. What happened in this case?
An illustration of the true innuendo came when the defendant wrote a tweet implying the claimant was guilty of a crime following false allegations of child sex abuse.
HELD:
The words were defamatory because they contained innuendo that would harm the claimants reputation. The ordinary and natural meaning of the words was the implication that the claimant had abused children
The defamatory statement must refer to the claimant. The question is laid out in Morgan v Odhams. What is it?
would a reasonable person understand the statement as referring to the claimant
The defamatory statement must refer to the claimant. The question is laid out in Morgan v Odhams
would a reasonable person understand the statement as referring to the claimant
Discuss case
the article was defamatory. A substantial group of people knew the article which claimed a woman had been kidnapped could be directed at the claimant
the article was defamatory. A substantial group of people knew the article which claimed a woman had been kidnapped could be directed at the claimant
The defamatory statement must refer to the claimant. The question is laid out in Morgan v Odhams
would a reasonable person understand the statement as referring to the claimant
Discuss case
Under Does the Statement refer to the claimant
The tort of defamation is not concerned with whether the defendant intended to harm the individuals reputation, and so a defendant may be liable when they intended their statement as a piece of fiction as in which case?
Hulton
under
does hthe Statement refer tot eh claimant:
Defamation will not be found where the burden to avoid mistaken identity in tort would be contrary to Art 10 ECHR as in which case?
O’Shea v MGN
under
does hthe Statement refer tot eh claimant:
Defamation will not be found where the burden to avoid mistaken identity in tort would be contrary to Art 10 ECHR as in which case?
O’Shea v MGN
under
does hthe Statement refer tot eh claimant:
Defamation will not be found where the burden to avoid mistaken identity in tort would be contrary to Art 10 ECHR as in O’Shea v MGN
Discuss case
the Sunday Mirror ran an advertisement for an adult internet service featuring a model who closely resembled the claimant.
HELD:
Not defamatory relying on Article 10(2) as it was held that a finding for defamation would place an impossible burden on the publisher if he were required to check every picture resembled someone else
the Sunday Mirror ran an advertisement for an adult internet service featuring a model who closely resembled the claimant.
HELD:
Not defamatory relying on Article 10(2) as it was held that a finding for defamation would place an impossible burden on the publisher if he were required to check every picture resembled someone else
under
does hthe Statement refer tot eh claimant:
Defamation will not be found where the burden to avoid mistaken identity in tort would be contrary to Art 10 ECHR as in O’Shea v MGN
Discuss case
References to a group of calls
if a defamatory imputation refers to a group but not to any individual within that group, then no action lies in defamation
A member of that group must be able to prove that the defamatory statement was reasonable understood as referring to them:
What case is an example?
Knupffer v London Express Newspaper
References to a group of calls
if a defamatory imputation refers to a group but not to any individual within that group, then no action lies in defamation
A member of that group must be able to prove that the defamatory statement was reasonable understood as referring to them:
This was established in Knupffer v London Express Newspaper
Discuss case
The defendant published an article on the Young Russian political party and implied that this group were colluding with the Nazi Party during WW2
Held;
No defamation as the claimant had not been singled out from the members of the political group
The defendant published an article on the Young Russian political party and implied that this group were colluding with the Nazi Party during WW2
Held;
No defamation as the claimant had not been singled out from the members of the political group
References to a group of calls
if a defamatory imputation refers to a group but not to any individual within that group, then no action lies in defamation
A member of that group must be able to prove that the defamatory statement was reasonable understood as referring to them:
This was established in Knupffer v London Express Newspaper
Discuss case
Has the Statement been published
The third element of a claim publication in this context means
if a publication is unintentional, a defendant will be liable if it reasonably foreseeable that a third party would see/hear the statement
Which 2 cases can be contrasted?
Theaker v Richardson and
Huth v Huth
Has the Statement been published
The third element of a claim publication in this context means
if a publication is unintentional, a defendant will be liable if it reasonably foreseeable that a third party would see/hear the statement
This was demonstrated in Theaker v Richardson
discuss
The defendant wrote to the claimant accusing her of shoplifting among other insults.
The claimants husband opened it and the claimant sued for libel
HELD:
liable because it was reasonably foreseeable that someone other than C would read the letter.
The defendant wrote to the claimant accusing her of shoplifting among other insults.
The claimants husband opened it and the claimant sued for libel
HELD:
liable because it was reasonably foreseeable that someone other than C would read the letter.
Has the Statement been published
The third element of a claim publication in this context means
if a publication is unintentional, a defendant will be liable if it reasonably foreseeable that a third party would see/hear the statement
This was demonstrated in Theaker v Richardson
discuss
Has the Statement been published
The third element of a claim publication in this context means
if a publication is unintentional, a defendant will be liable if it reasonably foreseeable that a third party would see/hear the statement
This was demonstrated in Huth v Huth which contracts Theaker v Richardson
discuss
In this case D sent his wife a letter containing defamatory claims against his wife and children which the family butler opened
HELD:
Not liable as it was unforeseeable that the letter would be opened and read by the butler as was not apart of his duties
In this case D sent his wife a letter containing defamatory claims against his wife and children which the family butler opened
HELD:
Not liable as it was unforeseeable that the letter would be opened and read by the butler as was not apart of his duties
Has the Statement been published
The third element of a claim publication in this context means
if a publication is unintentional, a defendant will be liable if it reasonably foreseeable that a third party would see/hear the statement
This was demonstrated in Huth v Huth which contracts Theaker v Richardson
discuss
Has the Statement been published
The third element of a claim
Persons who merely play a passive instrumental role in the process are not ‘publishers’ and are therefore cannot be liable for defamation:
what case?
Bunt v Tily
Has the Statement been published
The third element of a claim
Persons who merely play a passive instrumental role in the process are not ‘publishers’ and are therefore cannot be liable for defamation:
established Bunt v Tily
dicuss case
Defamatory statements were placed on internet chat rooms and D sued the Internet Service Providers responsible for directing the internet traffic
HELD:
not liable because the IPS were passive mediums of communication
Defamatory statements were placed on internet chat rooms and D sued the Internet Service Providers responsible for directing the internet traffic
HELD:
not liable because the IPS were passive mediums of communication
Has the Statement been published
The third element of a claim
Persons who merely play a passive instrumental role in the process are not ‘publishers’ and are therefore cannot be liable for defamation:
established Bunt v Tily
dicuss case
Republication
Each separate publication can give rise to a separate cause of action.
What case was this established in?
Harmer
Republication
Each publication of the defamatory statement can give rise to an action in defamation against who?
1) the person who repeated the defamatory imputation and
2) the original maker of the statement
Republication
If a reasonable person in D’s position should have anticipated that there was a significant risk of repetition of D’s defamatory imputation, then D will be liable for additional damage caused
Which case established this?
Slipper v BBC
Republication
There are exceptions to the rule of republication under the Defamation Act 2013 s.8.
What are they?
this introduces an exception through the single publication rule which prevents an action being brought in relation to publications of the same material by the same publisher after a one year limitation period from the date of the first publication
This upholds section 4A Limitation Act 1980 which holds that claims must be brought within a 12 month period
Republication
There are exceptions to the rule of republication under the Defamation Act 2013
which section
s.8
Republication
How does s.10 of the Defamation Act give an exception to the rule that each separate publication can give rise to a separate cause of action
s.10 of the Defamation Act limits the jurisdiction of the courts hearing defamation claims against secondary publishers
What solution did Times Newspaper v UK give for when a claim violates Article 10?
the publisher could place a note warning of the veracity of the article and so archives would not give rise to a new course of action which would otherwise produce a chilling effect
though under s.8 as a defence, publishers no longer need to do this
If the first 3 elements are made out;
imputation, identification and publication then D may plead a number of defences; the burden of proving falls upon D
What are the 3 defences?
- Truth (s.2 Defamation Act 2013)
- Honest Opinion (s.3)
- Privilege
a) absolute privilege
b) Qualified privilege
c) public interest privilege (Reynolds s.4)
d) peer-reviewed statements in academic journals (s.6) - Offer of amends
- Innocent dissemination
A defamatory imputation is presumed to be false, and thus the burden of proving that the imputation was substantially true rests on D
What are the two ways of proving a statement is true?
- Imputation was one of fact
2. Imputation must be substantially true
What does Defamation Act 2013 s.2 state?
it is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true
What case notes that a statement must be substantially true?
Alexander v NER
Alexander v NER notes that a statement must be substantially true
discuss case
The defendants published a notice at all their stations that the claimant had been charged without a ticket when travelling and had been punished with 3 weeks imprisonment.
The claimant argued this was defamatory as he only served 14 days and so the statement exaggerated the punishment
HELD:
No defamation. The notices were substantially true
The defendants published a notice at all their stations that the claimant had been charged without a ticket when travelling and had been punished with 3 weeks imprisonment.
The claimant argued this was defamatory as he only served 14 days and so the statement exaggerated the punishment
HELD:
No defamation. The notices were substantially true
Alexander v NER notes that a statement must be substantially true
discuss case
What case shows that it can be tricky to find the sting of the statement when determining whether it has truth?
Grobbelaar v News Group Newspaper
Grobbelaar v News Group Newspaperhows that it can be tricky to find the sting of the statement when determining whether it has truth
discuss case
The claimant was a professional football videoed by the Sun confessing to have fixed matches in the past
The claimant argued that the headline statement was defamatory and no truth defence as it could not be proven to be true.
HELD:
The decision was left up to the jury, who ruled in his favour but damages were reduced to £1
s.11 Defamation Act now abolishes the presumption of a jury
The claimant was a professional football videoed by the Sun confessing to have fixed matches in the past
The claimant argued that the headline statement was defamatory and no truth defence as it could not be proven to be true.
HELD:
The decision was left up to the jury, who ruled in his favour but damages were reduced to £1
s.11 Defamation Act now abolishes the presumption of a jury
Grobbelaar v News Group Newspaperhows that it can be tricky to find the sting of the statement when determining whether it has truth
discuss case
To prove the truth, the burden of proof rests on D to prove it is not substantially true. How is this possibility not a good balance?
as the claimant can win a case in defamation without proving that the defamatory statement is untrue. What must only be shown is that the statement was efaamtorty and that the defendant cannot provide enough evidence to demonstrate that it is false
To prove the truth, the burden of proof rests on D to prove it is not substantially true.
this means that the claimant can win a case in defamation without proving that the defamatory statement is untrue. What must only be shown is that the statement was efaamtorty and that the defendant cannot provide enough evidence to demonstrate that it is false
However how is this risky?
as in the case of Jeffrey Archer a politician who sued a newspaper over allegations that he paid money to a prostitute. He won the defamation claim but years later new evidenced emerged that he had and he was later convicted of perjury for lying in the original case
The defence of privilege allows people to speak and publish without fear o defamation in proceedings where it is important that people are able to speak freely
What are the two kinds of privilege?
absolute privilege:
-covers situations where it is crucial people are able to speak with complete freedom.
- qualified privilege:
- 1) D had a legitimate interest in informing readers of the statement
2) readers had a corresponding and legitimate interest in being informed of the statement
3) D was not motivated by malice (e.g employee reference)
Absolute privilege -covers situations where it is crucial people are able to speak with complete freedom. What is this supported by?
Bill of Rights 1689
‘‘freedom of speech and debate…ought not to be impeached”
Under absolute privilege, this covers situations where it is crucial people are able to speak with complete freedom. What section of the Defamation Act 2013 has made change?
s.13
Under absolute privilege, this covers situations where it is crucial people are able to speak with complete freedom. s.13Defamation Act 2013 has made change. What is this change?
now allows MPs to waive their right to privilege to allow them to sue such as in Hamilton v Al Frayed when an MP was accused of receiving cash for asking questions in Parliament
Under absolute privilege, this covers situations where it is crucial people are able to speak with complete freedom. s.13Defamation Act 2013 has made change. It now allows MPs to waive their right to privilege to allow them to sue such as in Hamilton v Al Frayed when an MP was accused of receiving cash for asking questions in Parliament
What has this section been crtiisied for?
for only acting one way giving no right to the opponent to demand parliamentary privilege be removed
What are the 3 elements of qualified privilege?
1) D had a legitimate interest in informing readers of the statement
2) Readers had a corresponding and legitimate interest in being informed of the statement
3) D was not motivated by malice
(e. g an employee reference which may be defamatory cannot be liable unless done with malice)
interest does not include gossip
Qualified privilege does not include cover gossip or whether the recipient would be interested in the information. It means that there is an interest in receiving the information which is important enough that the law should protect the maker of the statement .Which case considers this?
Watt v Longsdon
Qualified privilege does not include cover gossip or whether the recipient would be interested in the information. It means that there is an interest in receiving the information which is important enough that the law should protect the maker of the statement .
Watt v Longsdon covers this.
Discuss
The defendant received information about immoral behaviour of the claimant and passed this onto the claimants wife and the company in which he worked. The claimant sued for defamation while the defendant claimed he was under a duty to pass information onto his wife
HELD:
There was a duty to inform the board of the company however there was no duty to pass the information onto the wife even though she would be ‘interested’ to know. There is not enough public interest to pass onto a spouse.
The defendant received information about immoral behaviour of the claimant and passed this onto the claimants wife and the company in which he worked. The claimant sued for defamation while the defendant claimed he was under a duty to pass information onto his wife
HELD:
There was a duty to inform the board of the company however there was no duty to pass the information onto the wife even though she would be ‘interested’ to know. There is not enough public interest to pass onto a spouse.
Qualified privilege does not include cover gossip or whether the recipient would be interested in the information. It means that there is an interest in receiving the information which is important enough that the law should protect the maker of the statement .
Watt v Longsdon covers this.
Discuss
If the defamatory statement was honestly held, they are entitled to protection under qualified privilege as in which case?
Horrocks v Lowe
What part of the Defamation Act 2013 has created a new category of qualified privilege that of a ‘peer reviewed statement in a scientific or academic journal’
s.6
What does s.6 of the Defamation Act 2013 do?
as created a new category of qualified privilege that of a ‘peer reviewed statement in a scientific or academic journal’
s.6 of the Defamation Act 2013 hascreated a new category of qualified privilege that of a ‘peer reviewed statement in a scientific or academic journal’ what are the requirements?
that it relates only to things of a scienfitific or academic matter and have been indepenanlty peer reviewed by the editor of the journal and one or more experts
what can the defence provided by s.6 be defeated by?
malice
What new defence did s.4 of the Defamation Act 2013 introduce?
a new defence of publication is a matter of public interest which replaces the common law Reynolds privilege
s.4 of the Defamation Act 2013 has introduced a new defence of publication is a matter of public interest which replaces the common law Reynolds privilege
However the common law forms the basis of the existing statute so cannot be ignored. What are the 3 elements?
(1) the statement must be a matter of public interest
(2) D reasonably believed that publishing was in the public interest
(3) D’s statement may be either fact or opinion
What case was a development of qualified privilege?
Reynolds
Reynolds was a development of qualified privilege
discuss this case
Libel proceedings were brought against the Sunday Times for an article on the political crisis in Ireland which led to the claimant resigning. The claimant argued that the defendant deliberately lied to mislead Parliament
HELD:
The House of Lords recognised for the first time that media publications can be protected by privilege providing they satisfy a test of public right to know and responsible journalism. Lord Nicholls set out ten non-exhaustive factors which would be considered when determining whether there was a duty- interest for media publications to the world at large.
how does the form of privilege in Reynolds differ to normal qualified privilege?
the form of privilege in Reynolds relate to thecontents of the statement and conduct of the parties whereas normal qualified privilege relates to the occasion on which it was made
What has Price and McMahon suggested that public interest has been left wide in order to do?
to dissuade the courts from returning to a Reynolds style checklist
What was the main issue with Rylands?
that it was difficult in practise to advise the defendants or claimants on pre-publication whether it would be effective as a defence
s.4(1) (a) of the Defamation Act 2013 noted what and why is this important?
the meaning of public interest that the Court must have regard to all circumstances of the care meaning that the 10 factors form Reynolds are still pervasive
s.4(1) (b) of the Defamation Act 2013 noted what and why is this important?
a reasonable belief; Hoffmann in James noted that in most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true
s.4(1) (5) of the Defamation Act 2013 noted what and why is this important?
it is in the public interest if it is a fact or opinion. This is a clarification of the common law. It is now clear that the public interest defence will apply regardless of whether the statement was one of fact or opinon
What does s.3 of the Defamation Act 2013 do?
it abolishes the common law defence of fair comment
1)the defamatory statement is one of opinion
2) the statement indicates the basis of the opinion
3) an honest person could have held that opinion on the basis of true facts or facts alleged to be true under privilege
how is s.3 of Defamation Act 2013 unlike the common law defence?
as there is no need for the statement to be on a matter of public opinion, nor does it depend on malice
what are the 3 elements of honest opinion under s3
it abolishes the common law defence of fair comment
1)the defamatory statement is one of opinion
2) the statement indicates the basis of the opinion
3) an honest person could have held that opinion on the basis of true facts or facts alleged to be true under privilege
what case demonstrates the difficulty of distinguishing fact from opinion?
Singh
Singh demonstrates the difficulty of distinguishing fact from opinion
discuss
The defendant published a newspaper article containing a statement about the claimants bogus treatments. The claimant sued for libel and the defendant sought to rely on the defence of fair comment.
HELD:
The court held the phrase used was a comment rather than an assertion
The defendant published a newspaper article containing a statement about the claimants bogus treatments. The claimant sued for libel and the defendant sought to rely on the defence of fair comment.
HELD:
The court held the phrase used was a comment rather than an assertion
Singh demonstrates the difficulty of distinguishing fact from opinion
discuss
under s.3(5) DA 2013, the defendant need not prove that all the facts on which his opinion is based are true, just enough to make it possible for an honest person to hold the opinion in question
Who does the burden of proof lay on?
the burden of proving D did not honestly hold the opinion will fall on C
what part of the defamation act covers offer of amends?
s.2-4
under offer of amends s.2-4’ when will an apology only be effective?
if the publisher admits they were wrong before fighting a defamation claim
Under Innocent dissemination a distinction is drawn between whom?
those who publish and republish defamatory material and mechanical distributors (libraries)
Under the 1996 Defamation act what did s.1 provide for?
a defence of innocent defamation if he is able to show that
- he was not author/editos
- took reasonable care in relation to publication and
- did not know that what he did caused and contributed to the publication of a defamatory statement
Which 2 parts of the Defamation Act provides protection for publishers?
s/1 1996 Act and s/10 2013 Act
How does s.10(2) Defamation Act 2013 provide protection for publishers under innocent dissemination?
it offers further protection for secondary publishers as the court has no jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher
what section provides a defence for website operators making it a defence for the operator to show that it was not the operator who posted the statement on the website
s5 2013
Under s5 2013 Act how is the defence for website operators defeated? (3)
the defence does not apply if th claimant is able to show:
1) it was not possible for the claimant to identify the person who posted the statement
2) the claimant gave the operator a notice of complaint in relation to a statement and
3) the operators failed to respond to notice of complaint
Who argues that s.5 appears o strike a balance between freedom of expression and regulations
Wilson and Campbell
Remedies include damages and injunctions. Damages used to be decided by a jury but now the presumption of a jury trial was abolished by what?
s11 Defamation Act
