Defamation & Defences Flashcards
Verbal injury concerns…
Slander if title, property & business.
Public hatred, contempt or ridicule
Must the statement be published?
In England yes but in Scotland, not vital. Always to be communicated to pursuer though. Only weirdly sensitive would be fazed if someone said something untrue to them
What kinds of material can be defamatory?
Written and spoken. But we don’t have any libel / slander distinction.
Also images (Tolley v Fry)
What kind of imputations?
Immoral behaviour (v context appropriate) not between 2 consenting adults (Mosely) and not about being gay (Prophit v BBC)
Business misconduct
Rape (Yousopoff)
What is your reputation?
The way that others perceive you
Protecting your character - value of good name is incalculable
Self worth & respect of others
What is defamation concerned with?
The control of information which is false / cannot be proven to be true to protect the pursuer’s reputation from being diminished in the eyes of well thinking members of society.
Historical background
Roman inspiration - iniuria influenced, useful for novel cases e.g. Tolley v Fry
Criminal until modern era
Privacy & defamation more important with the rise of commercial publication, photography, the Internet, social media etc.
What must be proved?
Defender made imputation (causation)
Imputation referred to was capable of being understood as referring to the pursuer
Imputation carried defamatory meaning
How can we tell if the imputation carried a defamatory meaning?
What would the ordinary man understand the imputation to mean?
What the ordinary man, not avid for scandal would read into the words. (Lewis v Daily Telegraph)
Are words uttered in rixa actionable?
No. See Christie v Robertson
What are the rules on innuendo?
Lewis v Daily Telegraph
If not defamatory in natural sense, but if it takes on an offensive meaning in light of extrinsic facts, known by persons to whom it is made
1) meaning contended for
2) extrinsic facts necessary to give this meaning
What is the deal with figurative or satirical language?
Generally no. Calling someone names etc. unlikely to be actionable unless factual innuendo can be drawn. (See Macleod v Newsquest)
What about exposure to ridicule?
Use if humour doesn’t mean that material can’t be defamatory (Prophit v BBC)
But if obviously that not seriously suggesting something!
Effect of the imputation?
Would words tend to lower the plaintiff in the estimation of right thinking members of society generally?
Highly subjective
Not criminal minded members of society!
Conjecture on part of the judiciary
What people ought to think, rather than what they do think. Good because not strict, depends on societal perceptions
What is the function of defamation?
By pushing the media to take care in what they say, defamation law civilises the standards of public discourse. (Reid)
Control mechanism in balance between freedom of expression and protection of reputation.
What is verbal injury?
Used to be very wide.
Communication of words which aren’t defamatory but are otherwise actionable.
If can’t be shown to be defamatory because it is true, may still be in scope of verbal injury
Slander of property, title and business
Public hatred, contempt or ridicule cases (see Madras College case - Paterson v Welch)
Need to prove malice and intent to harm (Barratt Homes case) Blackie says that this req’t has choked off this kind of action
Role of defences in defamation?
“Striking feature is how far defences go towards undoing the proof of the prima facie defamation case: where defences would normally have the effect of fine-tuning the boundaries of liability.
“Reclaiming much of the territory that the first party has handed to the pursuing party”
What are the defences? (6)
Truth Absolute Privilege Qualified Privilege Reynolds Privilege Fair Comment Offer of Amends Innocent Dissemination
What are the two kinds of defences?
Denying Wrongfulness - you are not to blame for defamatory statement e.g. Truth
Denying Unlawfulness - law grants permission to defendant to inflict it in pursuance of a greater good
What is the defence of truth?
Truth becomes defence by mid-19th c (MacKellar v Duke of Sutherland)
Pursuer does not have to prove falsity of a accusation - presumed. Complete defence is made out if can prove truth. (Sarwar v News Group)
Have to prove that sting is true (Sarwar v News Group)
Remember falsity is presumed
What about exaggeration?
Journalists granted certain level of exaggeration.
What is the special rule for criminal offences?
Truth is a defence unless statement made maliciously
Why allow truth as a defence? (1/1)
Shouldn’t punish people for seeking the truth, trying to make people aware of something, shows they made an effort to get it right.
Law won’t allow man to recover damages for respect of injury to character which he doesn’t have (Descheemaker)
Is there still an injury if true?
Yes, but done lawfully
What does absolute privilege mean?
Freedom of speech privileged over threat to reputation
1) parliamentary proceedings - statements made on floor of both parliaments + statements published in reports of proceedings
2) judicial proceedings - was tribunal protected by statute? Extends to statements made in fera, disciplinary tribunals etc.
What is qualified privilege?
Malice generally presumed. But context of statement highlights that should be protected.
Defender says no intention to harm
Pursuer tries to prove malice
Where there is a need for recipients to receive frank & uninhibited communication of particular info from a particular source…traditionally these occasions have been described in terms of persons having a duty to perform or an interest in providing the information.
Did he misuse the occasion? (Frazer v Mirza)
What is a moral / social duty?
Subjective. Concerns over conduct of someone dispensing a public function.
Must tell appropriate body
Difference between ordinary qualified privilege and Reynolds?
Ordinary - context determines whether statements made will be protected. Did you need to dispense a social or moral duty?
Reynolds - content determines whether protected. Malice does not defeat public interest.
What then is Reynolds privilege?
Special defence - can show that it was in public interest to disclose.
Interesting to public and public interest not the same!
Public interest must be served by the specific inclusion e.g. Specific names rather than just some key companies (Jameel v Wall Street)
Must fit with responsible journalism (10 steps in Reynolds)
What is fair comment?
Right to express one’s opinions freely. Every man who publishes a book puts this out into the public + can’t then complain if people cast their opinions.
Deduction, inference, conclusion, criticism, remark, observation
Req’ts
1) statement based on fact
2) facts upon which comment made are true
3) facts concern public interest (Spiller v Joseph
4) don’t need to insert every fact on which you base your comment or endure reader can make up own mind. Goes too far against free speech.
Get basic facts right (London Artists v Littler)
must be in public interest (Wheatley v Anderson)
What is offer of amends?
See s2-4 Defamation Act. Defence for those who got facts wrong but are willing to pay to make amends.
Must make suitable apology, offer to publish, offer suitable compensation. If offer accepted + performed, cannot bring defamation proceedings in respect of publication.
Can be used as a defence
Innocent Dissemination
DA provides defence for tide who have been involved in dissemination of defamatory material.
Must show
1) not publisher
2) took reasonable care in relation to publication
3) they did not know that this was defamatory
See Godfrey v Demon Internet
What is reportage?
Don’t need to prove truth. Repeating incrimination can be tantamount to relating it yourself.
Odd. Conflicts with idea of responsible journalism.
Tolley v Fry
Unauthorised use of the image of someone could be defamatory as it would give someone a false message that he or she endorsed the product
Fairbairn v SNP
Statement alleged that MP did not collect his constituency mail from HoC post office. Attack on his character as political rep. But did not amount to attack on honour / rep.
Lewis v Daily Telegraph
2 newspapers published article headed enquiry on firm by fraud squad. Chairman of firm issued statement denying that such enquiry was being made. Innuendo or real meaning?
No question of innuendo. Real meaning of words. Sting not so much in words but from what ordinary man would infer from them.
Morrison v Madame Tussaud’s
Not proven guilty of murder yet, but put waxwork figure of him in section where murderers went. Implying his guilt.
Sheriff v Wilson
Schoolteacher, said he was fat and would die soon. Obviously fictitious. Only actionable if factual innuendo can be drawn
McLeod v Newsquest
Awards ceremony at the prestigious tartan bollocks award. Suggested he wasn’t fit to do his job.
No ordinary person would attack meaning averred by the pursuer. Have to consider nature & tone of the article.
Light hearted tenor. Chaffed / teased.
Christie v Robertson
2 men got into fight after horse auction where both thought they’d won bet. Called him a thief. No, in rixa
Barratt v International Resorts Ltd v Barratt Owners Group
Company who ran holiday resorts as timeshares v timeshare owners. Dissatisfied with business operations and published on website that they were incompetent.
Couldn’t prove malice. Need intent plus bad motive
Steele v Scottish Daily Record
Inaccurate article about car dealer. Solarium for injury to feelings through him being held up to public hatred and contempt
Claimed damages for injury done to business.
Sarwar v News Group
Article alleged that candidate paid bribe to another candidate for him to ease off his campaign. Didn’t have to prove every precise element of the story, but rather the ‘sting’ must be proven to be true ie fact that he had bribed.
Frazier v Mirza
Citizen with grounds for complaint regarding conduct of police officer had public duty to make those grounds known to the local police officer, but this particular occasion had been misused. Need to tell appropriate body, not always press
Reynolds v Times Newspaper
R resigned as Irish Taiseach and leader of party. Reasons for resignation of public interest. Not least because of his association with NI peace process.
Lord Nicholls identified 10 factors which assisted in determining whether there was a public interest in publishing certain info.
Seriousness, nature of info, steps taken to verify, status of info, urgency of matter, whether comment sought from plaintiff, whether contained gist of plaintiff’s side. Tone of the article. Circumstances of publication.
Responsible journalism!!
Jameel v Wall Street Journal
Defendant newspaper had reported that at request of US law enforcement agencies, central bank of Saudi Arabis had been monitoring certain accounts to ensure that they were not used for channelling funds to terrorist organisations.
Nicholls test applied flexibly.
3 basic issues
Public interest?
Inclusion of defamatory material justifiable?
Whether steps taken to gather and publish info were responsible + fair
Here, inclusion of names important as otherwise would not have got across the point that the investigation was focus do on those at the very centre of industry and so had to identify certain account holders.
Joseph v Spiller
Director of booking agent and did publicity for acts.
Landmarc - cancellation
Breached contractual term which said they would always nook through agents
Lord Nicolls has said before that they had to put all of the facts into their comment so that the reader could make up their own minds about the case.
Change - not necessary. Only basic facts must be right. Important not to burden the defender, freedom of expression etc.
But malice - where you ignore all facts - means no defence.
Godfrey v Demon Internet
Defender - Internet service provider + had stored an article defaming P. Asked him to get rid of it. Failed to do so. Defenders relied up s1 saying they didn’t know it was defamatory, nor were publishers. No, had notice therefore deemed liable
Charman v Orion
Reportage of claimant’s resignation from Met deemed to be privileged in context of book - battle against police corruption.
Flood v Times Newspaper
T had published newspaper + on website saying that police were investigating whether senior officer guilty of taking bribes in exchange for sensitive police info. Investigation subsequently cleared F, but times did not remove article.
But in public interest to keep this up. Acted responsibly in publishing. Special type of Reynolds privilege which arose whee it was not the content of an allegation that was in public interest, but fact that allegation had been made.
But conflicts with entire idea of responsible journalism and does not satisfy Lord Nicolls’ 10 step guide.
