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Law Of Obligations II > Defamation defences > Flashcards

Defamation defences Flashcards

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1
Q

Why was the 2013 reform deemed necessary?

A

Argued it protecting reutation more than expression.
However there is also debate that it has now swung too far the other way.

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2
Q

what are the defences available?

A

s.2 Truth
s.3 Honest Opinion
Absolute priviledge
s.4 Publication in the Public Interest
s.5 Protection for operators of websites
s.6 protection for academics writing peer reviewed journals
apologies/corrections

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3
Q

Where do the difficulties lie in defences?

A

easy to bring about an action but he wide range of defences available mean it is difficult to make a claim.

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4
Q

what did truth used to be?

A

justification

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5
Q

what did honest opinion used to be

A

fair comment

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6
Q

what did ppublic interest used to be

A

Reynolds

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7
Q

where does the burden of proof liew?

A

For defences, the burden shifts from claimant to defendant.

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8
Q

What are defamtory statements assuemd to be (and what can the defendant do)?

A

presumed to be false. D can rebut this.

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9
Q

what type of defence is truth (case)?

A

a complete defence - Mr Pherson v Daniels

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10
Q

WHat happens if you lie (truth defence)?

A

you will be prosecuted so it prevents people from using this defence.

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11
Q

what is the root of the defence?

A

If the D can prove that the content of the statement is true, then they can generally have a complete defence.

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12
Q

what does s.2 of the DA 2013 state?

A

defence…to show that the imputation conveyed by the statement complained of is substantially true

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13
Q

what does s.2 mean in relation to substantial truth/

A

Dont have to prove that all elements of the statement are true, only substantially true. This was also the stance of common law.
Only has to prove the sting of the charge (edwards v Bell).

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14
Q

which cases show that the sting of the charge must be proven?

A

Alexander v North eastern railway
chase vnews group newspapers.

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15
Q

What were the facts and result of Grobbelaar v NGN?

A

2 parts to article: he had taken bribes and he had allowed goals in as a result.
He had engaegd in bribes but mathc fixing couldnt be proven.
Minor imputations dont have to be proven if they dont effect reputation.

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16
Q

WHat if there are multiple stateents?

A

a.2 DA - if there are two or more imputations. Defence wont fail if one is found substantially untrue if the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.

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17
Q

What were the facts of henry v BBC?

A

Claims of falsification of waiting list numbers, fraud and bullying. Couldn’t prove the last claim.

Held; bullying and fraud are two distinct statements and the defence of justification at the time could succeed even though the bullying couldn’t be proved true. Sting the accusation here was the fraud, which had been shown to be true.

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18
Q

what is the exception to truth?

A

malice does not defeat the defence of truth

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19
Q

what is different about honest opinion and fair comment?

A

It no longer needs to be a matter of public interest.

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20
Q

where does the importance of the HO defence lie?

A

SLim v Daily Telegraph - makes up free speech - shoudl be free to write a nespaper and publish this.

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21
Q

what would happen if we didnt have the defenc of HO?

A

Most of what we say could be actionable (opinions).

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22
Q

what 3 conditions must be met for HO defence?

A
  1. statement must be an opinion of facts
    Statement indicates the basis of that opinion
    an honest person could have held that opinion on the facts.
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23
Q

where is the distinction between fatc and opinion determined? what is it?

A

British Chiropractic association Singh - Facts are seen as descriptive, opinions are viewed as evaluative. Opinions are dependant on an individuals values and preferences.

24
Q

what were he facts of Singh?

A

D published a newspaper article which described the British chiropractic association as ‘the respectable face of the chiropractic profession and yet it happily promotes bogus treatments’.

Held: statemen of opinion because it made a value judgement. No worth while evidence showcasing this.

25
Q

what did opinion used to have to be in relation to?

A

public interest

26
Q

How must opinoon be sufficeintly identified (condition 2)?

A

must be identified at least in general terms what it is that has led that commentator to make the comment.what a

27
Q

what about fair balance (condition 2)?

A

allowing opinions but also this expectation to infomr readers why theyre making the decision they have

28
Q

what about basis in fact (condition 3)?

A

Don’t have to prove the truth in all the fact. Just need to prove the truth of all the facts on which the opinion is based.

Was the comment one which could have been made by an honest person however prejudice he might be, however exaggerated or obstinate his views.

29
Q

where is basis in fact found ?

A

s.3(4) DA 2013

30
Q

what is condition 4 and where can it be found (honest opinion)?

A

s.3(5) DA - the opinion must be honestly held

31
Q

What leads to no defence (condition 4 - honest opinion)?

A

No defence if that opinion is not one they actually hold.

32
Q

what is a note on repitition?

A

s.3(6) DA 2013: protects media reports of the opinions of others.

33
Q

what do the many conditions do?

A

The fact that there are lots of conditions works to actually protect reputation. Not fully pro-freedom of expression. Easier to rely on s.3 post reform. Because we’ve abolished the public interest requirement.

34
Q

which case lists what is considered when deciding whether it is fact or opinion? what are the factors?

A

Dr Salman Butt v SoS for HO
1. Subject matter

  1. Nature of allegation
  2. Context
35
Q

Which case had a pro-expression jugdement?

A

Dyson v MGN

36
Q

What tyoe of defence is Public inerest?

A

qualified - wider than journalisitc.

37
Q

What are the laundry lidt of considerations for public interest (and which case sets them out)?

A

reynolds v times newspaper
The seriousness of the allegation.

The nature of the information.

The source of the information.

The steps taken to verify the information.

The status of the information.

The urgency of the matter.

Whether comment was sought from the plaintiff.

Whether the article contained the plaintiff’s side of the story.

The tone of the article.

The circumstances of the publication, including the timing.

38
Q

Which case mentions context (public interest)?

A

Jameel v Wallstreet - context of whole piece is relevant.

39
Q

what were th eissues with the reynold defence?

A

cloudy application - flood v times newspaper - what is responsible journalism?

40
Q

what are the conditions of the public interest defence under DA 2013?

A

D must have reasonably believed that the statement was for public interest.

Court must regard all circumstances

Must be an allowance for editorial judgement.

Irrespective of whether it is an opinion or fact.

41
Q

what was acting responsibly replaced with (reynolds defence)?

A

reasonable belief

42
Q

what is the reasonable belief test?

A

s.4(1)(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.

43
Q

what does the reaonble elief test do?

A

aloow more flexibility - removes Reynolds laundry list (in theory)

44
Q

which post reform cases relied on/didnt rely on reynold’s laundry list/ ?

A

Jan Tomasz Serafin v Grzegorx Malkiewicz
CA - relied on it
SC - said to leave it in the past.

45
Q

Which case adopted Serafin’s approach?

A

Banks v Cadwalladr

46
Q

which case satisfied public interest?

A

Hay v Cresswell - Tattoo artist claimed against Cresswell, who claimed that he had violently sexually assaulted her in a nightclub. Public interest was satisfied (very serious) as well as her reliance on truth.

47
Q

what is the protection for website operators defence for?

A

s.5(2)for the operator to show that it was not the operator who posted the statement on the website. ​

48
Q

what can the claimant show that causes the website defence to fail?

A

s.5(3)…
a. it was not possible for the claimant to identify the person who posted the statement, ​
b. the claimant gave the operator a notice of complaint in relation to the statement, and ​
c. the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

49
Q

when else is the website defence defeated?

A

if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.

50
Q

what does the peer reviewed defence protect?

A

Protects articles to academic matters but they have to be on an academic subject and they have to be peer reviewed.

51
Q

what can the peer review defence be defeated by?

A

malice s.6(6)

52
Q

What about the offer of amends?

A

s.2 DA - If a defendant offers to make a suitable correction/apology as to the statement and to pay compensation and/or costs, this can be a defence to an action in defamation.

53
Q

when does the offer of amneds defence arise?

A

If a valid offer like this is rejected, this is when the D can rely on this as a defence.w

54
Q

what is the main remediy in defamation?

A

Damages

55
Q

WHat other remedy can be used?

A

Can obtain an injunction to prevent repitition of the statement in the future

Interim injunctions prior to trial – rare – Article 10 concerns.

Law Of Obligations II (13 decks)

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