Defamation Flashcards
1
Q
What is defamation?
A
Defamation is the act of causing injury to a person’s reputation through oral statements or written publications.
2
Q
What is the main authority regarding defamation?
A
The Defamation Act 2013
there is also a wealth of common law that informs it
3
Q
What is the relationship between Defamation and the HRA?
A
Defamation as a tort is in tension with freedom of expression protected by Art 10 of the ECHR since defamation prohibits some forms of speech that harm the reputation of others.
4
Q
How is the tension between Defamation and the HRA somewhat reconciled?
A
Article 10 of the ECHR is a qualified right and ss(2) allows for limits on expression ‘for the protection of the rights and freedom of others’. Defamation may be said to perform this function by protecting interests and maintaining reputations - thus justifiable under Article 10.
5
Q
What are the four key elements of a claim in defamation?
A
- D made a defamatory imputation
- The defamatory imputation identified C
- The defamatory imputation was published
- D is unable to prove a valid defence
6
Q
What are the two separate torts encompassed by defamation?
A
- Slander
2. Libel
7
Q
What is the distinction between slander and libel?
A
Libel is an act of defamation in permanent form (e.g. writing).
Slander is an act of defamation in transient form (e.g. speaking).
8
Q
How can slander and libel be further distinguished based upon how they are made out?
A
Slander generally requires that the claimant suffers a specific pecuniary loss as a result of the imputation whereas libel can be made out on serious harm to reputation.
9
Q
What are the exceptions to the position that slander requires evidence of a specific pecuniary loss?
A
Slander is actionable without pecuniary loss where the Defendant imputes that;
The Claimant was guilty of an imprisonable criminal offence; or
The Claimant was unfit, incompetent or dishonest when carrying on a profession, trade, calling, or business.
10
Q
Is it possible for parties to sue for defamation on behalf of the dead?
A
No, the dead cannot be defamed - this was established by the Miscellaneous Provisions act 1934, s1.
11
Q
Is it possible for governmental and public authorities to sue in defamation?
A
No, they lack the capacity to do so - this was established in the case of Derbyshire CC v Times Newspapers Ltd.
12
Q
What are the details and findings of the Derbyshire CC Case?
A
Articles were published that questioned the propriety of investments made by the council in its pension fund. The council brought actions for libel against the Newspaper. The attempted libel actions by the Local authority were denied because Local Authorities must be open to criticism as political bodies, so can’t sue for defamation.
13
Q
Is it possible for political parties to sue in defamation?
A
Political Parties cannot sue in defamation - but individual politicians can - shown in the case of Goldsmith v Bhoyrul.
14
Q
Is it possible for companies to sue for defamation?
A
Companies, partnerships, and incorporated entities can sue, but unincorporated associations can’t - as shown in the case of EETPU v Times Newspapers Ltd.
15
Q
Can non domiciled persons sue for Defamation in England and Wales?
A
Non domiciled persons cannot sue in England and Wales unless the courts are ‘satisfied that, … England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement’. The authority for this is s 9(2) of the Defamation Act.
16
Q
Which section of the 2013 Defamation Act determines whether a statement is defamatory?
A
Defamation Act 2013 s1(1) and;
Defamation Act 2013 s1(2)
17
Q
What does DA s1(1) and (2) provide, regarding the identification of a defamatory imputation?
A
1(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
1(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
18
Q
What does a claimant have to prove to establish that a statement was defamatory?
A
The claimant must establish that there was a likelihood that the statement adversely affected his reputation - as shown by Thornton v Telegraph Media Group - there is no need to prove the statement actually did so in fact.
19
Q
Which cases further developed the laws position on what constitutes a defamatory statement?
A
- Sim v Stretch
2. Lewis v Daily Telegraph
20
Q
What important consideration, in regards to defamatory statements, was introduced in the Sim v Stretch and Lewis v Daily Telegraph Cases?
A
The impact of a statement upon ‘right-thinking people’.
21
Q
What was said in the case of Sim v Stretch?
A
Imputations are defamatory if they are such as would ‘lower the claimant in the estimation of right-thinking members of society, causing them to be shunned or avoided’.
22
Q
What was said in the case of Lewis v Daily Telegraph?
A
This case established ‘right-thinking members of society’ as those that are ‘fair minded, … not avid for scandal, nor overly suspicious nor unduly naïve, nor bound to select one defamatory meaning when non defamatory meanings are possible’.
23
Q
Is it always necessary to prove evidence of serious harm (as required by s1(1) of the DA 2013)?
A
No, it can sometimes be inferred - as illustrated in the case of Lachaux v Independent Print Ltd.
24
Q
What are the details and findings of the Lachaux Case?
A
Domestic abuse allegations were made against the claimant who claimed that this was part of a defamatory campaign by his ex wife. Defamation could be established as the claims were so serious that it would be appropriate to draw an inference of serious repetitional harm.
25
Which case distinguishes cases in which a persons reputation is lowered in the eyes of a particular group or class of people from those in which it is lowered generally?
Tolly v JS Fry & Sons Ltd
26
What was said in the case of Tolly v JS Fry & Sons Ltd?
It was said that - ‘Words are not defamatory, however much they may damage a man in the eyes of a section of the community unless they also amount to disparagement of his reputation in the eyes of right thinking men generally'.
27
Which case illustrates the importance of the requirement that a statement lowers a person's reputation in the mind of right-thinking persons?
Byrne v Deane
28
What are the details and findings of the Byrne v Deane Case?
A notice was placed in a golf club implying that the claimant informed police about illegal gambling machines. There was no defamation because right thinking people would not think less of a person who reports crime.
29
What needs to be considered when determining whether a person's reputation would be lowered among right-thinking persons?
This requires looking at the words in a particular context.
30
Which case illustrates the importance of considering the words used in a particular context?
Church v MGN Ltd
31
What are the details and findings of the case of Church v MGN?
A fabricated article on singer Charlotte Church stated that she had drunkenly proposed to her boyfriend. Reporting a proposal under the influence of alcohol (as opposed to whilst sober) was capable of being defamatory.
32
What is the laws stance on defamation by abusive statements?
Abusive statements can be defamatory if it would lower the person’s reputation in right minded people.
33
Which case illustrates that abusive statements may be defamatory?
Berkoff v Burchill
34
What are the details and findings of the Berkoff v Burchill Case?
Burchill published work about the claimant being ‘hideously ugly’ and comparing them to Frankenstein. The statements could be defamatory because they could hold the defendant up to contempt, scorn and ridicule.
35
What is the laws stance on defamation by headlines and statements?
Headlines and photos may not be defamatory if the main text clarifies this by offering detail that, if read, would mean that a person’s reputation would not be lowered by right thinking people.
36
Which case illustrates that photos and headlines may, but need not, be defamatory?
Charleston v News Group Ltd
37
What are the details and findings of the case of Charleston v News Group Ltd ?
Faked photographs relating to two Australian soap stars were published with text revealing that the photos were fake. The photos were not defamatory because a right minded person would read the text revealing the photos as fake.
38
Can defamation be made via innuendo?
Yes - Defamation can relate to implied or vailed attacks on someone’s reputation. Statements can be defamation where there is background knowledge or information that makes people think worse of the defendant.
39
What are the two types of innuendo which may give rise to defamation?
1. False (popular) innuendo
| 2. True (legal) innuendo
40
What are false innuendos?
This involves an inferred or indirect meaning from a statement that could be understood by anyone reading the words - as illustrated by Bestobell Paints Ltd v Bigg.
41
What are true innuendos?
This involves a statement that is not defamatory on its face, but rendered so because certain readers will know of extrinsic circumstances relating to the claimant - as illustrated by Baturina v Times Newspapers Ltd.
42
Which case illustrated defamation via a false innuendo?
Monson v Tussauds
43
What are the details and findings of the Monson v Tussauds 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. The models were defamatory because of the implied meaning.
44
Which case illustrated defamation via a true innuendo?
McAlpine v Bercow
45
What are the details and findings of the McAlpine v Bercow Case?
The defendant wrote on social media ‘Why is Lord McAlpine trending? *Innocent face*’ following false allegations against the claimant of child sexual abuse. It was held to be defamatory because it contained innuendo that would harm the claimant’s reputation. The ordinary and natural meaning of the words was the implication that the claimant had abused children.
46
What extra requirements or hurdles were identified for claimants attempting to claim via true innuendo?
In the case of McAlpine v Bercow J Tungendhat said that claimants in cases involving true innuendos must also establish that the relevant extrinsic facts that make the statement defamatory (when known), were known to the reader.
47
What is the key question to be asked when considering the requirement that a defamatory statement must refer to the claimant?
Would a reasonable person understand the statement as referring to the claimant? As laid down in the case of Morgan v Odhams Press Ltd.
48
What are the potential ways in which a defamatory imputation may refer to the claimant?
- Express Reference
- Reference innuendo
- Mistaken description or photographs
- Fictional characters
- Group defamation
- C identified only by statements in linked publications
49
Which case provides an example of reference by innuendo?
Morgan v Odhams Press Ltd
50
What are the details and findings of the Morgan v Odhams Press Ltd Case?
A newspaper published an article claiming that a woman had been kidnapped by a criminal gang. The woman was residing in the claimant’s house, he argued that the article was defamatory because many people were aware the women was living in the house and may conclude that the claimant was a member of a criminal gang. The article was defamatory as a substantial group of people knew the article could be directed at the claimant.
51
Which case provides an example of reference by mistaken description of photographs?
Newstead v London Express Newspapers Ltd
52
What are the details and findings of the Newstead Case?
A newspaper referred to ‘Harold Newstead, a thirty-year-old Camberwell man’ in regards to a trial on bigamy. Another man called Harold Newstead from Camberwell aged around thirty claimed for defamation. The intention of the newspaper was said to be irrelevant and the affect of the article to lower the claimant’s reputation among reasonable people made it defamatory. (More specificity on the details of the person would've avoided defamation).
53
Which case provided an example of reference via fictional characters?
Hulton & Co v Jones
54
What are the details and findings of the Hulton & Co v Jones Case?
The defendant had written about a motor show, and in his writing implied that a man called Artemus Jones had a mistress. The author made up the story and the name but there was a barrister called Artemus Jones who sued for defamation. The lack of intention to identify the claimant was found to be irrelevant and the affect of it as identifying and lowering the reputation of the claimant in the eyes of right-minded people made it defamatory.
55
Can an individual bring an action for defamation on the basis of a statement made in reference to a group or class?
If a defamatory imputation refers to a group but not to any individual within it, no action lies for it. If, however, a group is limited, such that the D's imputation may reasonably be taken to refer to C, then C is sufficiently identified. Thus a member of that group must prove that the defamatory statement was reasonably understood as referring to him.
56
Which case provides an example of a defamation action based upon a statement made in reference to a group or class?
Knupffer v London Express Newspaper
57
What are the details and findings of the Knupffer v London Express Newspaper Case?
The defendant had an article on the Young Russian political party, and implied that this group were colluding with the Nazi party in the Second World War. It was held that there was no defamation as the claimant had not been singled out from the members of the political group.
58
What counter-balances the potential for defamation action on the basis of mistaken description or photographs?
Defamation will not be found where the burden to avoid mistaken identity in Tort would be contrary to Article 10 of the ECHR - as shown by the case of O’Shea v MGN Ltd.
59
What are the details of the O'Shea v MGN Ltd Case?
The defendant advertised a pornographic website in which the model used resembled the claimant. The claimant claimed that a reasonable person may conclude that they had consented to appear on a pornographic website.
60
What are the findings of the O'Shea v MGN Ltd Case?
It was held that this was not defamatory, relying on Article 10(2) of the Convention. It was said that a finding of defamation would ‘place an impossible burden on a publisher if he were required to check if [every] true picture of someone [he published] resembled someone else who because of the context of the picture was defamed’.
61
What is the importance of publication to defamation claims?
Defamation is predicated on the notion that serious harm has been or could likely be caused to C's reputation, this requires publication to a third party (not just to C himself).
62
What does publication mean in the given context?
'Publication', in this context, means that an imputation was communicated.
63
What is the laws position regarding unintentional publications?
If a publication is unintentional, a defendant will be liable if it is reasonably foreseeable that a third party would see/ hear the statement - as shown in Theaker v Richardson.
64
What are the details and findings of the case of Theaker v Richardson?
The defendant posted a letter to the claimant accusing her of shoplifting and calling her “a very dirty whore.” The claimant's husband opened the letter. The defendant was liable because it was reasonably foreseeable that someone other than C would read the letter.
65
Which case contrasts with the finding of that in Theaker v Richardson?
Huth v Huth
66
What are the details and findings of the case of Huth v Huth?
The defendant sent his wife a letter that contained defamatory claims against his wife and children. The family’s butler opened the letter. The children sued. The defendant was not liable as it was unforeseeable that the letter would be opened and read by the butler because opening letters is not part of the butler’s duties.
67
How does the law approach or clarify what constitutes a 'publisher' of a defamatory statement?
Persons who merely play a passive instrumental role in the process are not ‘publishers’ and thus be cannot liable for defamation - this is illustrated in the case of Bunt v Tilly.
68
What are the details and findings of the case of Burnt v Tilly?
Defamatory statements were placed on an internet chat room. The claimant sued the Internet Service Providers responsible for directing the internet traffic. It was held they were not liable because IPS were mere passive mediums of communication.
69
What is the laws position on republication of defamatory statements?
Each separate publication can give rise to a separate cause of action - as established by the case of Duke of Brunswick v Harmer.
70
Against whom may republications give rise to actions against?
Each publication of the defamatory statement can give rise to an action in defamation against;
- The person who repeated the defamatory imputation; and;
- The original maker of the statement.
71
What was established in regards to republication, in the case of Slipper v BBC?
In this case it was established that - 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.
72
Is the rule laid down in Slipper v BBC completely unqualified?
No, there are exceptions and limitations to the rule.
73
What are the restrictions to the rule laid down in Slipper v BBC?
Section 8 of the Defamation Act introduces an exception that prevents an action being brought in relation to republication of the same material by the same publisher after a one year limitation period. Also, section 10 of the Defamation Act limits the jurisdiction of the courts hearing defamation claims against secondary publishers.
74
How does s10 of the Defamation Act 2013 limit the jurisdiction of the courts in regards to secondary publishers?
s10(1) 'A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher'.
75
What important distinction is there in regards to publishers of defamatory statements?
There is a distinction to be drawn between publishers and mere distributors.
76
What illustrates the difference between publishers and mere distributors of defamatory statements?
Booksellers, libraries, newspaper stands etc (mere distributors) will not be liable for publication of material providing they took reasonable care to ensure that what they were distributing did not contain defamatory material - as shown by Vizetelly v Mudie’s Select Library.
77
What are the five potential defences for actions of defamation?
1. Truth
2. Honest Opinion
3. Privilege
4. Offer of amends
5. Innocent Dissemination
78
What is the defence of truth to an action of defamation?
Essentially, a defamatory imputation is presumed to be false - if the imputation is in fact found to be true this will provide a defence to the action for defamation - the burden of proving the imputation was substantially true rests, however, on the Defendant.
79
What are the two elements to the defence of truth?
1. The imputation was one of fact
| 2. The imputation must be substantially true
80
What provides the authority for truth as a defence for defamation?
s2(1) of the Defamation Act 2013
81
Must the Defendant have knowledge of all the facts he seeks to rely upon to establish the truth of his statement, at the time of the imputation?
No, the Defendant is entitled to plead any fact whether or not it was known to him when he made the statement in order to show that the statement was substantially true.
82
At what point must the statement made be true to fall under the defence of truth?
The statement must be true at the time of publication - as shown by Ma v St George’s Healthcare NHS Trust.
83
Does every word of an imputation need to be true in order to allow for the defence of truth?
No, not every word of the imputation need be true, so long as it is substantially true - this was demonstrated by the case of Alexander v North Eastern Railway.
84
What are the details and findings of the Alexander v North Eastern Railway Case?
The claimant was threatened with imprisonment for 14 days if he failed to pay fines for unpaid train tickets.
The defendant put notices up in stations stating that the defendant had been imprisoned for 3 weeks for failing to pay for tickets. The claimant argued that this was defamatory because it exaggerated the punishment. The notices were not held to be defamatory as they were substantially true (if not every word).
85
Does the claimant have to prove a defamatory statement to be untrue to win a defamation case?
No, the claimant may win the case if the defendant cannot provide enough evidence to demonstrate that it is true.
86
What are the potential consequences of attempting to win a defamation case while knowing the relevant imputation to be true?
This is a risky strategy which may come back to bite the claimant and damage their reputation further - e.g. in the case of Jeffrey Archer.
87
How did the case involving Jeffrey Archer illustrate the risk with banking on the defendants inability to prove truth?
Archer, sued a newspaper for allegations that he had paid money to a prostitute. He won his defamation claim because the newspaper did not have enough evidence to back up the claim. Later more evidence emerged that Archer had paid a prostitute, and he was later convicted of perjury for lying in the original defamation trial.
88
What is the reasoning behind the defence of privilege?
The defence of privilege allows people speak and, crucially, publish without fear of defamation proceedings in circumstances where it is important that people are able to speak freely.
89
What is absolute privilege?
Absolute privilege – covers situations where it is crucial that people are able to speak with complete freedom. No possibility of a claim for defamation no matter how malicious the speaker.
90
What is a practical example of a case of absolute privilege?
Members of Parliament have a right to speak their mind in Parliament without any risk of incurring liability for defamation.
91
What legal authority is there for the absolute privilege enjoyed by MP's while speaking in Parliament?
Bill of Rights 1689 - ‘the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.
92
What is qualified privilege?
This protects the publisher of defamatory statements where the defendant was under a duty to communicate the relevant information and the recipient has an interest in receiving it.
93
What are the three key elements to 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
94
What is the meaning of the term 'interest' in the context of qualified privilege?
The interest does not cover gossip or whether the recipient would be ‘interested’ in the information, but 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.
95
Which case illustrated the importance of a proper 'interest' when considering qualified privilege?
Watt v Longsdon
96
What are the details of the Watt v Longsdon Case?
The defendant received information about ‘immoral’ behaviour of the claimant and passed this on to the claimant’s wife and the company in which he worked. The claimant sued for defamation, the defendant claimed that he was under a duty to pass on information to the wife.
97
What are the findings of the Watt v Longsdon Case?
It was held that there was a duty for the defendant to communicate the information to the board of the company. However, there was no duty to pass on the information to the wife. She would be ‘interested’ in the information but there was not a great enough public interest to justify passing on the information.
98
How does malice affect the defence of qualified privilege?
A defendant will not be granted qualified privilege as a defence for a defamatory statement if said statement was made out with malice. A claimant is entitled to protection under a qualified privilege if the defamatory statement was honestly held.
99
Which case reinforces the position that only honestly held defamatory statements will be protected under qualified privilege (providing the first two requirements are met)?
Horrocks v Lowe
100
What was said in the case of Horrocks v Lowe?
In this case it was said that - 'despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.’
101
Which other category of qualified privilege has been created by s6 of the Defamation Act 2013?
Section 6 of the Defamation Act 2013 creates a new category of qualified privilege, that of a ‘peer reviewed statement in a scientific or academic journal etc’.
102
What is the purpose and scope of this new category of qualified privilege created by s6 of the Defamation Act 2013?
It is aimed at facilitating academic debate. It only relates to things of a scientific or academic matter (s6(2)), that have been independently peer-reviewed by the editor of the journal and one or more experts (s 6(3)).
103
What defeats this further category of qualified privilege?
The defence is defeated by malice.
104
What is the privilege defence of 'publication in a matter of public interest'?
Section 4 of the Defamation Act 2013 introduces a new defence of ‘publication in a matter of public interest’ which replaces the common law (Reynolds Privilege).
105
What are the three key elements to the 'publication in a matter of public interest' defence?
1. The statement must be, or form part of, 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
106
What are the details of the Reynolds v Times Newspapers Case?
The Times newspaper published an article on the political crisis in Ireland in 1994 which led to the claimant resigning and the collapse of the Irish government. The claimant argued that the article alleged that he had deliberately lied to mislead the Parliament. The Defendants argued that the article was covered by qualified privilege.
107
What are the findings of the Reynolds v Times Newspapers Case?
It was held that qualified privilege is available in respect of political information when there had been a duty to publish the material to the intended recipients and when they had had an interest in receiving it, taking into account all the circumstances of the publication including the nature, status and source of the material. It follows from this finding that the media can be protected by privilege if they satisfy a test of public right to know and ‘responsible journalism’.
108
What did Lord Nicholls provide in the Reynolds v Times Newspapers Case?
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.
109
What were the 10 factors laid out by Lord Nicholls in the Reynolds v Times Newspapers Case?
1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
110
What are the important distinctions between the type of privilege identified in the Reynolds Case and other types of privilege?
Reynolds relates to the contents of the statement and the conduct of the parties. Whereas normal qualified privilege relates to the occasion on which it is made .
111
What is meant by the 'public interest' referred to in s4(1)(a) of the Defamation Act 2013 concerning the publication in the matter of public interest defence?
It was said, by Lord Bingham, in the case of Jameel v Wall Street Journal Sprl, that - 'What engages the interest of the public may not be material which engages the public interest.
112
Can the 'public interest' defence apply to publication of misinformation?
No, Lord Hobhouse observed - "No public interest is served by publishing or communicating misinformation".
But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.
113
What is meant by the requirement that regard should be given to all the circumstances of the case as stated in s4(2) of the Defamation Act 2013?
This means that the ‘10 factors’ from Reynolds v Times Newspapers Ltd are still persuasive.
114
Which case supports the notion that courts must make allowances for editorial judgements as stated by s4(4) of the Defamation Act 2013?
Charman v Orion Publishing Group
115
What is meant by the reasonable belief requirement referred to in s4(1)(b) of the Defamation Act 2013?
This simply means there must be a reasonable belief publication was in the public interest (reflecting the position in Reynolds).
116
What further supports the reasonable belief requirement laid down in s4(1)(b) and Reynolds?
Lord Hoffmann in the Jameel Case said, ‘[i]n most cases, the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true’.
117
Does the 'public interest' defence apply to statements of fact or opinion?
S4(5) of the Defamation Act 2013 provides 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 opinion.
118
What provides the authority for the honest opinion defence to defamation?
S3 of the Defamation Act 2013.
119
What are the four key elements of the honest opinion defence for defamation?
1. The statement was one of opinion (s3(2));
2. The statement indicated, either generally or specifically, the basis of that opinion (s3(3));
3. An honest person could have held the opinion on the basis of either any fact existing at the time the statement was published, or anything asserted to be a fact in a privileged statement (s3(4)); and
4. The defendant held the opinion expressed (s3(5))
120
What is the difference between an opinion and a fact?
The simplest answer is that an opinion is evaluative whereas facts are descriptive. Opinions are based on a person’s values and preferences.
121
Which case illustrated the difficulty of distinguishing opinions and facts?
British Chiropractic Association v Singh
122
What is meant by the requirement that the statement indicates either generally or specifically the basis of the opinion?
This means that the defendant’s opinion must state, explicitly or implicitly, the basis of that opinion. This need only be in general terms, and does not need to be sufficient for the reader to be able to form their own judgement on the opinion.
123
Which case illustrates the requirement that the statement indicates the basis of the opinion?
Joseph v Spiller
124
What are the details of the Joseph v Spiller Case?
The claimants were musicians and the defendants their booking agents. The claimant’s signed a re-engagement clause with the defendants but later booked another venue without the defendant’s services. The claimants emailed the defendant stating that the contract ‘did not hold water in legal terms’. The defendants later quoted the claimant as saying ‘contracts’ hold no water. The claimants sued for defamation.
125
What are the findings of the Joseph v Spiller Case?
It was held that a comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. The defendant alleged that the words used in the email displayed a contempt for contracts and this was the basis of the comment made.
126
What is meant by the requirement that the defendant must hold the opinion expressed, as referred to by s3(5) of the Defamation Act 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.
127
What is a requirement of the defendant seeking to demonstrate that they held the opinion expressed?
To establish this it is vital that the defendant was aware of the facts at the time that the opinion was published - as shown by Lowe v Associated Newspapers.
128
Where does the burden of proof regarding whether an opinion is honestly held lie?
The burden of proving that the Defendant did not honestly hold the opinion will fall on the Claimant.
129
What provides the authority for the defence to defamation of an offer of amends?
ss2-4 Defamation Act 1996.
130
What are the three key elements of the offer of amends defence to defamation?
1. Before serving defence to action, D can elect to make an offer
2. If this offer is accepted by C, judicial proceedings cannot be continued, and the offer is contractually binding
3. D must: correct and apologise; publish the correction and apology; and offer to pay C compensation.
131
What is meant by the first requirement regarding the point at which an offer of amends can be made?
The apology must be made before filing a defence claim. An apology can only be effective if the publisher admits they were wrong before filing a defence claim.
132
What occurs if the claimant accepts the defendants offer of amends?
If the defendant’s offer is accepted, the action stops and damages are agreed by the parties.
133
What is the key distinction in regards to the defence of innocent dissemination?
A distinction is drawn between those who publish and republish defamatory material, and mechanical distributors.
134
What three pieces of statutory authority underpin the defence of innocent dissemination?
Section 1 of the Defamation Act 1996.
Section 10 of the Defamation Act 2013.
Section 5 of the Defamation Act 2013.
135
What does s1(1) of the Defamation Act 1996 provide in regards to innocent dissemination as a defence?
This statute provides that a person will have a defence of innocent dissemination if he was not the author, editor or publisher of the statement complained of, provided they took reasonable care in relation to its publication and did not know, and had no reason to believe, that his action in distributing the statement caused or contributed to the publication of a defamatory statement.
136
What does s1(3) of the Defamation Act 1996 provide in regards to innocent dissemination as a defence?
This statute essentially precludes persons involved in;
- printing, producing, distributing or selling materials containing the statement
- processing, making, exhibiting or selling audio or electronic materials containing the statement
- operating or providing equipment by which material containing the statement is distributed
- broadcasting live programmes containing the statement (in circumstances in which they lacked control over it)
- operators or providers of communication systems by means of which the the statement is transmitted
From being categorised as the author, editor or publisher of the statement.
137
What does s10 of the Defamation Act 2013 provide in regards to the defence of innocent dissemination?
This statute provides that a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of, unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.
138
What defence is provided for, in regards to innocent dissemination, by s5 of the Defamation Act 2013?
This statute provides a defence for a website operator who can show that it was not the operator who posted the statement on the website. However, the wording of the provision limits the scope of this defence.
139
How does s5 of the Defamation Act 2013 limit the applicability of the defence of innocent dissemination?
The statute provides that the defence is defeated if it is not possible for the claimant to identify the person who posted the statement, if the claimant gave the operator a notice of complaint in relation to the statement, and if the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
140
What are the potential remedies for defamation?
Remedies can include damages and injunctions.
141
What is the purpose of awarding damages for defamation?
Damages for defamation have a primary purpose of compensation but can incorporate further damages to help re-establish the claimant’s reputation as a matter of vindication. Sometimes damages can be awarded for punishment and deterrence - as shown by John v MGN.
142
How may damages and injunctions be used in conjunction as remedies for defamation?
An award of damages can be accompanied by a final injunction prohibiting further publication of the defamatory material. Failure to comply with this can lead to imprisonment for contempt of court.
