DEFAMATION ELEMENT 1 Flashcards
Three requirements
Defamatory statement
About the plaintiff
Published to a third party
Defamatory statement definition
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)
Categories
8 possible categories
- remember up to H because you HATE how there is so many
Imputations of criminal conduct
Loutchansky
Statements by the prime minister 2011
Lewis (approved CPN)
Howden, Christopher Jeffries
Imputations of immoral or improper conduct
Slater
Carins, Grobbler
Hockey
Wilson v Bauer
Rush v Nationwide
Homosexuality
Hadlee, cruise, Liberace
Quinn - MCGECHAN J stated in obiter -
Ridicule
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
Shun and avoidance
Without moral discret on their part (youssapoff)
Even though it may not make people think less
Pearce (insane/mentally incapable)
Villers (diseased)
Rape
Incompetence in office or trade
Reputation not confined to general character
Truth NZ Ltd
Birch
Hawkins
Castle - Idour
Professional or trade persons product - Griffiths, Slater
Imputations of insolvency
Baker, Hill
Wright - photograph stolen cheque
Dumbar- liquor store notice
Insult and abuse
Berkoff v Burchhill
- actor, ugly, appearance important
Loss of commercial ethics
Mount Cooke group
Further matters of definition
Cannot defame the dead
Statement must have an adverse effect, not enough that it is a false statement about plaintiff
Additional harm threshold
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
Who can be defamed
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
Construction of words
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)
Ordinary and natural meaning tests
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
Innuendo
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
Context
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
