Defamation & Defences

Question 1

Verbal injury concerns…

Answer 1

Slander if title, property & business.

Public hatred, contempt or ridicule

Question 2

Must the statement be published?

Answer 2

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

Question 3

What kinds of material can be defamatory?

Answer 3

Written and spoken. But we don’t have any libel / slander distinction.

Also images (Tolley v Fry)

Question 4

What kind of imputations?

Answer 4

Immoral behaviour (v context appropriate) not between 2 consenting adults (Mosely) and not about being gay (Prophit v BBC)

Business misconduct

Rape (Yousopoff)

Question 5

What is your reputation?

Answer 5

The way that others perceive you

Protecting your character - value of good name is incalculable

Self worth & respect of others

Question 6

What is defamation concerned with?

Answer 6

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.

Question 7

Historical background

Answer 7

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.

Question 8

What must be proved?

Answer 8

Defender made imputation (causation)

Imputation referred to was capable of being understood as referring to the pursuer

Imputation carried defamatory meaning

Question 9

How can we tell if the imputation carried a defamatory meaning?

Answer 9

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)

Question 10

Are words uttered in rixa actionable?

Answer 10

No. See Christie v Robertson

Question 11

What are the rules on innuendo?

Answer 11

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

Question 12

What is the deal with figurative or satirical language?

Answer 12

Generally no. Calling someone names etc. unlikely to be actionable unless factual innuendo can be drawn. (See Macleod v Newsquest)

Question 13

What about exposure to ridicule?

Answer 13

Use if humour doesn’t mean that material can’t be defamatory (Prophit v BBC)

But if obviously that not seriously suggesting something!

Question 14

Effect of the imputation?

Answer 14

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

Question 15

What is the function of defamation?

Answer 15

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.

Question 16

What is verbal injury?

Answer 16

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

Question 17

Role of defences in defamation?

Answer 17

“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”

Question 18

What are the defences? (6)

Answer 18

Truth
Absolute Privilege 
Qualified Privilege
Reynolds Privilege
Fair Comment
Offer of Amends
Innocent Dissemination

Question 19

What are the two kinds of defences?

Answer 19

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

Question 20

What is the defence of truth?

Answer 20

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

Question 21

What about exaggeration?

Answer 21

Journalists granted certain level of exaggeration.

Question 22

What is the special rule for criminal offences?

Answer 22

Truth is a defence unless statement made maliciously

Question 23

Why allow truth as a defence? (1/1)

Answer 23

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)

Question 24

Is there still an injury if true?

Answer 24

Yes, but done lawfully

Question 25

What does absolute privilege mean?

Answer 25

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.

Question 26

What is qualified privilege?

Answer 26

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)

Question 27

What is a moral / social duty?

Answer 27

Subjective. Concerns over conduct of someone dispensing a public function.

Must tell appropriate body

Question 28

Difference between ordinary qualified privilege and Reynolds?

Answer 28

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.

Question 29

What then is Reynolds privilege?

Answer 29

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)

Question 30

What is fair comment?

Answer 30

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)

Question 31

What is offer of amends?

Answer 31

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

Question 32

Innocent Dissemination

Answer 32

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

Question 33

What is reportage?

Answer 33

Don’t need to prove truth. Repeating incrimination can be tantamount to relating it yourself.

Odd. Conflicts with idea of responsible journalism.

Question 34

Tolley v Fry

Answer 34

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

Question 35

Fairbairn v SNP

Answer 35

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.

Question 36

Lewis v Daily Telegraph

Answer 36

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.

Question 37

Morrison v Madame Tussaud’s

Answer 37

Not proven guilty of murder yet, but put waxwork figure of him in section where murderers went. Implying his guilt.

Question 38

Sheriff v Wilson

Answer 38

Schoolteacher, said he was fat and would die soon. Obviously fictitious. Only actionable if factual innuendo can be drawn

Question 39

McLeod v Newsquest

Answer 39

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.

Question 40

Christie v Robertson

Answer 40

2 men got into fight after horse auction where both thought they’d won bet. Called him a thief. No, in rixa

Question 41

Barratt v International Resorts Ltd v Barratt Owners Group

Answer 41

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

Question 42

Steele v Scottish Daily Record

Answer 42

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.

Question 43

Sarwar v News Group

Answer 43

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.

Question 44

Frazier v Mirza

Answer 44

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

Question 45

Reynolds v Times Newspaper

Answer 45

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!!

Question 46

Jameel v Wall Street Journal

Answer 46

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.

Question 47

Joseph v Spiller

Answer 47

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.

Question 48

Godfrey v Demon Internet

Answer 48

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

Question 49

Charman v Orion

Answer 49

Reportage of claimant’s resignation from Met deemed to be privileged in context of book - battle against police corruption.

Question 50

Flood v Times Newspaper

Answer 50

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.