Defamation (C) Flashcards
What are requirements for a statement to be defamatory? (Defamation and Malicious Publications (Scotland) Act 2021).
- Statement must bear a defamatory meaning and must cause, or be likely to cause, serious harm to P.
- Statement must identifiably refer to P.
- Statement must be communicated to a third party.
- D must have no valid defence.
What must be established before the serious harm test and consensus test can be applied?
The meaning of the statement.
Perspective adopted is that of a reasonable member of the prospective audience (Stocker v Stocker [2020] AC 593).
Reasonable viewer is not “avid for scandal” or overly analytical (Gallic v BBC [1996] EMLR 267; Rooney v Vardy [2020] EWHC 3156 (QB)).
Context must be considered (Charleston v News Group Newspapers [1995] 2 AC 65.
Statement may be made by any medium (Monson v Tusauds [1894] 1 QB 671).
What is the consensus test?
s1(4)(a) of the Act:
‘A statement about a person is defamatory if it causes harm to the person’s reputation (that is, if it tends to lower the person’s reputation in the estimation of ordinary persons)’.
- Similar definition in Sim and Stretch [1936] 2 All ER 1237.
Insufficient to show the statement lowered P in the estimations of a specific subset of society (Byrne v Deane [1937] 1 KB 818).
What is the serious harm test?
s1(2)(b):
- ‘A right to bring defamation proceedings in respect of the statement accrues only if -
[…] the publication of the statement has caused (or is likely to cause) serious harm to the reputation of [P].
For non-natural persons which trade for profit, ‘serious harm’ means ‘serious financial loss’ (s1(3)).
Lachaux v Independent Print [2020] AC 612.
- Allegations of domestic abuse to his wife, allegations that he hid his son’s passport so they could not leave UAE. He was well known, very serious claim, widely accessed newspaper. SERIOUS HARM.
- [12] s1 (2)(b) ‘requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words.
- [21] ‘The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm… should not be drawn from considerations of this kind.’
Case where consensus test was applied in relation to criminality:
Wray v Associated Newspapers 2000 SLT 869.
- “Mr Mitchell, Q.C., opened his submissions on behalf of the defenders by accepting that the article in question, if false, was defamatory.”
Cases where consensus test was applied in relation to immorality:
Winter v News Scotland 1991 SLT 828.
- Prison officer’s abuse of position by sleeping with prisoner
Rufus v Elliott [2015] EWHC 807 (QB).
- Revealing that another person had used racist language? No one will think less of you for revealing that someone has used racist language.
Riley v Murray [2020] EWHC 977 (QB).
- Condoning the attack of a public figure? Did not include the context of the tweet, so could not prove what she was saying about Riley, so no valid defence.
The standards of morality are not static.
- AB v XY 1917 SC 15.
“When two men are discovered under those circumstances, there is only one inference to be made from their conduct. they left without a shred of character; they are not men, they are beasts.”
Cowan v Bennett 2012 G.W.D. 37-738.
The “gay painter”.
- [107]: “Homosexuality is not illegal. On the contrary, the rights of homosexuals are widely protected by the law. There are many people in public life in Scotland and the UK who are openly homosexual. Looked at in that way, it is difficult to see how an imputation of homosexuality could be defamatory.”
Cases where consensus test is applied in relation to dishonesty:
Carroll v BBC 1997 SLT (Sh Ct) 23.
- “A complete stranger to the truth”.
Wilson v Bauer Media [2017] VSC 521.
- Compulsively lying about name, age, and upbringing?
Cases where consensus test is applied in relation to professional impropriety:
Auld v Shairp (1875) 2 R 940.
- “If Dr Auld is placed in that chair I feel sure that the reputation of the college as a place of education will receive a grievous shock, and that the number of students attending it will be greatly diminished… It is a well known fact here Dr Auld… has not proved himself as an energetic or efficient teacher, but has notoriously failed in his present post as classical master… his appointment would be calamitous to the welfare of the university”.
Peck v Williams [2020] EWHC 966 (QB).
Cases where consensus test is applied in relation to ill-health:
A v B (1904) 7 F 72.
Oyston v Ragozzino [2015] EWHC 3232 (QB).
Step 2: Identification.
Words used must be “such as would reasonably lead persons acquainted with [P] to believe that he was the person referred to” (Knuppfer v London Express Newspaper [1944] AC 116, 119).
Case where consensus test is applied in relation to ridicule:
Berkoff v Burchill [1997] EMLR 139.
- Mocking for appearance, comparing to Frankenstein. Since he made his living on screen, majority ruled that his appearance was part of his craft.
- “The remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public”
Case where the consensus test is applied in relation to innuendo:
McAlpine v Bercow [2013] …
Innuendo “is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not general knowledge).” (Tugendhat J, [49]).
Case where the consensus test is applied in relation to arguments (comments made in rixa):
Christie v Robertson (1899) 1 F 1155.
- P to D: “You are stealing my horse”
- D to P: “You should have been in the hands of the police twenty times during the past five years”
- ”…the words were not used in a calumnious or slanderous sense, but were merely a part of the abuse which two parties when quarrelling, were heaping upon one another.” (Lord M’Laren, 1156).
”If a party, under whatever amount of provocation, makes a definite charge of crime or a charge of dishonest conduct against another, giving such point in regard to time and circumstances as to lead those who were present to believe that the charge was seriously made, it is no defence that the words were spoken in heat.” (1157).
Case where consensus test is applied in relation to vulgar abuse:
Smith v ADVFN Plc [2008] EWHC 1797 (QB).
- “It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.” (Eady J, [17]).
Step 2: Identificiation.
The words used must be: “such as would reasonably lead persons acquainted with [P] to believe that he [or she] was the person referred to”.
(Knuppfer v London Express Newspaper [1944] AC 116, 119 (Viscount Simon LC).
- Youssoupoff v MGM (1934) TLR 851.
- In the film, princess, married to Rasputin’s murderer, was raped by
Rasputin. In real life, princess is married to Rasputin’s murderer.
- Was the film defamatory of the princess?
- Held: A publication is defamatory if a reasonable person would believe the statement to be defamatory to another identifiable person.
