Defamation - Defamatory Imputation

Question 1

Which section of the 2013 Defamation Act determines whether a statement is defamatory?

Answer 1

Defamation Act 2013 s1(1) and;

Defamation Act 2013 s1(2)

Question 2

What does DA s1(1) and (2) provide, regarding the identification of a defamatory imputation?

Answer 2

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.

Question 3

What does a claimant have to prove to establish that a statement was defamatory?

Answer 3

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.

Question 4

Which cases further developed the laws position on what constitutes a defamatory statement?

Answer 4

1. Sim v Stretch

2. Lewis v Daily Telegraph

Question 5

What important consideration, in regards to defamatory statements, was introduced in the Sim v Stretch and Lewis v Daily Telegraph Cases?

Answer 5

The impact of a statement upon ‘right-thinking people’.

Question 6

What was said in the case of Sim v Stretch?

Answer 6

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’.

Question 7

What was said in the case of Lewis v Daily Telegraph?

Answer 7

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’.

Question 8

Is it always necessary to prove evidence of serious harm (as required by s1(1) of the DA 2013)?

Answer 8

No, it can sometimes be inferred - as illustrated in the case of Lachaux v Independent Print Ltd.

Question 9

What are the details and findings of the Lachaux Case?

Answer 9

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.

Question 10

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?

Answer 10

Tolly v JS Fry & Sons Ltd

Question 11

What was said in the case of Tolly v JS Fry & Sons Ltd?

Answer 11

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’.

Question 12

Which case illustrates the importance of the requirement that a statement lowers a person’s reputation in the mind of right-thinking persons?

Answer 12

Byrne v Deane

Question 13

What are the details and findings of the Byrne v Deane Case?

Answer 13

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.

Question 14

What needs to be considered when determining whether a person’s reputation would be lowered among right-thinking persons?

Answer 14

This requires looking at the words in a particular context.

Question 15

Which case illustrates the importance of considering the words used in a particular context?

Answer 15

Church v MGN Ltd

Question 16

What are the details and findings of the case of Church v MGN?

Answer 16

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.

Question 17

What is the laws stance on defamation by abusive statements?

Answer 17

Abusive statements can be defamatory if it would lower the person’s reputation in right minded people.

Question 18

Which case illustrates that abusive statements may be defamatory?

Answer 18

Berkoff v Burchill

Question 19

What are the details and findings of the Berkoff v Burchill Case?

Answer 19

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.

Question 20

What is the laws stance on defamation by headlines and statements?

Answer 20

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.

Question 21

Which case illustrates that photos and headlines may, but need not, be defamatory?

Answer 21

Charleston v News Group Ltd

Question 22

What are the details and findings of the case of Charleston v News Group Ltd ?

Answer 22

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.

Question 23

Can defamation be made via innuendo?

Answer 23

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.

Question 24

What are the two types of innuendo which may give rise to defamation?

Answer 24

1. False (popular) innuendo

2. True (legal) innuendo

Question 25

What are false innuendos?

Answer 25

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.

Question 26

What are true innuendos?

Answer 26

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.

Question 27

Which case illustrated defamation via a false innuendo?

Answer 27

Monson v Tussauds

Question 28

What are the details and findings of the Monson v Tussauds Case?

Answer 28

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.

Question 29

Which case illustrated defamation via a true innuendo?

Answer 29

McAlpine v Bercow

Question 30

What are the details and findings of the McAlpine v Bercow Case?

Answer 30

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.

Question 31

What extra requirements or hurdles were identified for claimants attempting to claim via true innuendo?

Answer 31

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.