DEFAMATION ELEMENT 1

Question 1

Three requirements

Answer 1

Defamatory statement

About the plaintiff

Published to a third party

Question 2

Defamatory statement definition

Answer 2

None has been attempted in statute

Ursula - a false statement about a person which lowers them in the mind of an ordinary reasonable person (youssapoff, sim)

Question 3

Categories

Answer 3

8 possible categories

- remember up to H because you HATE how there is so many

Question 4

Imputations of criminal conduct

Answer 4

Loutchansky

Statements by the prime minister 2011

Lewis (approved CPN)

Howden, Christopher Jeffries

Question 5

Imputations of immoral or improper conduct

Answer 5

Slater

Carins, Grobbler

Hockey

Wilson v Bauer

Rush v Nationwide

Question 6

Homosexuality

Answer 6

Hadlee, cruise, Liberace

Quinn - MCGECHAN J stated in obiter -

Question 7

Ridicule

Answer 7

Cook

Burton

Massey, WILLIAMS J stated - public figures have to be robust because they attract ridicule and the law will allow them to be exposed to a certain amount

Civilian newspaper

Question 8

Shun and avoidance

Answer 8

Without moral discret on their part (youssapoff)

Even though it may not make people think less

Pearce (insane/mentally incapable)

Villers (diseased)

Rape

Question 9

Incompetence in office or trade

Answer 9

Reputation not confined to general character

Truth NZ Ltd

Birch

Hawkins

Castle - Idour

Professional or trade persons product - Griffiths, Slater

Question 10

Imputations of insolvency

Answer 10

Baker, Hill

Wright - photograph stolen cheque

Dumbar- liquor store notice

Question 11

Insult and abuse

Answer 11

Berkoff v Burchhill

- actor, ugly, appearance important

Question 12

Loss of commercial ethics

Answer 12

Mount Cooke group

Question 13

Further matters of definition

Answer 13

Cannot defame the dead

Statement must have an adverse effect, not enough that it is a false statement about plaintiff

Question 14

Additional harm threshold

Answer 14

Thornton

Uk - legislation

NZ, initially agreed with English approach CPN

Sellman v Slater - j Palmer didn’t want to undermine defamation being actionable per say, would impose burden on defendant to show less than minor harm

Comply with Sellman

Question 15

Who can be defamed

Answer 15

Individuals - vindicate their reputation, must show they were actually and personally defamed

Companies, trading cooperation - imputation must reflect on the cooperation itself and not its members (otherwise bring individual action)

Trade unions (mount Cooke) - but must comply with s 6, show HAS or is likely to cause pecuniary loss

Councils - in the UK can’t bring claims as part of democratic process (Derbyshire), no similar case in NZ - unclear

Question 16

Construction of words

Answer 16

Courts must ascertain the meaning of words

• where innuendo is not pleaded, words are construed in their natural and ordinary meaning (that which is reasonably understood by ordinary people)
• natural meaning - intention is irrelevant, what matters is what the words conveyed (sally bercow)

Question 17

Ordinary and natural meaning tests

Answer 17

Lord selborne (capital and counties) “under the circumstances in which the writing was published, reasonable men to whom the publication was made would understand it in a libellous sense”

• reasonable man of ordinary general knowledge, not especially naive (Lewis)

May have overtones or inferences, if these are defamatory, will have a cause of action (grubb)

HADLEE (nz): the meaning that an ordinary reasonable person would as a matter of impression carry away with him after reading the publication

Question 18

Innuendo

Answer 18

Words may have a secondary or extended meaning which depends on knowledge of special or extrinsic facts (legal/true innuendo)

Meaning which a word bears over and above it’s natural and ordinary meaning. Must be special knowledge that leads some people (often a small group) to take a defamatory meaning from the words that an ordinary reasonable person would take (Lewis)

Cassidy - horse case

O’Shea - glamour model look alike, no claim

Plaintiff who relies on an innuendo must plead and prove extrinsic facts relied upon (see a 37(3)), have to be pleased expressly to establish the special meaning argued for

Question 19

Context

Answer 19

Words are construed in their context (hockey)

May be that denial is so convincing that a reader would know rumours are false (bane and antitode - Charleston) - held an ordinary reader would read the whole publication and take no defamatory meaning

Has been debate - argues that ordinary readers read the headline and skim the rest drawing conclusions from general impressions (chakavarti)

Stocker - developed the social media reader, slack and takes a more relaxed, information and causal approach to the meaning of words

However some contexts where the headline is the most prominent and only thing, in which case there is no context and a defamatory meaning could arise