Defamation I

Question 1

Steel and Morris v UK (2005)

Answer 1

The two people pictured there, Steel and Morris, were environmental activists. What they did was produce a written pamphlet which said some damning things about McDonald’s in terms of their environmental policies.

This pamphlet that they wrote was distributed quite widely in London and in the southeast of England. It was a written pamphlet, they took McDonald’s to task over various aspects of the way that they dealt with things in their environmental record.

What happened is McDonalds took them to court. McDonalds is a very large company with a lot of resources and a lot of money. In that court proceeding they were represented by the top barristers and QCs. The two people pictured represented themselves. They had no money. They defended themselves in court. It really did bring to the fore the sort of David and Goliath type scenario.

McDonalds ended up by winning the case. It was seen as showing how the law as it then stood did not have sufficient protection for freedom of expression.

So, these people had spoken out, they did so against a company. They lost. In a way, the fact that it was David and Goliath, with lots of resources and lots of money, and lots of lawyers against individuals, may be added to the conclusion that this case showed that our law was not correctly balanced.

Question 2

Section 1(2) Defamation Act 2013

Answer 2

companies must now show serious financial loss.

Question 3

Derbyshire CC v Times [1993]

Answer 3

There are also some well-recognized categories of people who can’t bring claims.

Governmental bodies.

Question 4

Goldsmith v Bhoyrul [1997]

Answer 4

There are also some well-recognized categories of people who can’t bring claims.

Political parties.

Question 5

Section 9(2) Defamation Act 2013

Answer 5

Libel tourism no more.

Question 6

Monson v Tussauds (1894)

Answer 6

(Libel)

In this case a waxwork of the claimant was placed in juxtaposition to the chamber of horrors. It was left there. It wasn’t just left there for a day and then gone. It was left there as a feature. That juxtaposition of something permanent – the statue – was found to be libel.

Defamation does not have to be something in written form.

Question 7

Yousoupoff v MGM (1934)

Answer 7

(Libel) also (Defamatory Statement)

This is about one of the very first talking movies. In this, on the soundtrack of the movie, an allegation was made that the claimant who was a Russian Princess had been raped by the monk Rasputin. Rape during that period of time is not something that you were sympathetic towards. So, that was the allegation made against this Russian Princess. It was on the soundtrack; the soundtrack was recorded, so even though it was spoken, it was permanent and therefore libel.

That second example has actually now been entrenched in statute, because anything which is spoken but which is on TV or radio, or indeed plays in the theatre, then they are all treated as libel regardless of whether they are recorded or not. (Broadcasting Act 1990 & Theaters Act 1968)

In Yousoupoff there was a soundtrack recording. Currently in reality everything on TV and radio is recorded today. But just occasionally you might go to the theatre, and that might not be recorded. Nonetheless, those forms of speech are treated as libel by these two statutes.

What the court accept in this case is the false allegation of rape caused the princess to be avoided by society. Other women in society, her friends, either through embarrassment or pity, avoided her. There was no smoke without fire, etc., so they were somewhat concerned that she may have been raped, and rape at that point carried with it a social stigma.

So, she was shunned or avoided, be it through pity or embarrassment. That again was an aspect of reputation. Anything that caused you to be excluded from your society.

Question 8

Pray v Jones [1939]

Answer 8

(Slander - actionable per se)

To say something which implies another person is guilty of criminal conduct that is slander, but actionable per se.

Question 9

Section 2 Defamation Act 1952

Answer 9

(Slander - actionable per se).

The imputation that someone is unfit in their particular trade or business. So, something about common profession. It is again actionable per se.

Question 10

Sim v Stretch (1936)

Answer 10

(Defamatory Statement)

Anything which tends to lower the plaintiff in the estimation of right-thinking members of society generally.

Question 11

Parmiter v Coupland (1840)

Answer 11

(Defamatory Statement)

It is not just about professional reputation or personal attributes. It could be, according to Parmiter v Coupland (1840) be anything exposing you to hatred, contempt, or ridicule.

Question 12

Berkoff v Burchill [1996]

Answer 12

(Defamatory Statement)

Stephen Berkoff is quite a famous Shakespearean actor. He is also known, at least in this country, for playing the baddie; he has one of those faces which suits bad characters in films.

Judy Burchill is a newspaper columnist. In the late 1990s she wrote about Stephen Berkoff in her Times’ column, which she then had. She compared him less favourably to Frankenstein’s monster, and described him as being hideously ugly.
It was a really personal thing to write about this actor. The court was happy, because actors trade on their looks and because this actor was not always a baddie and he did play serious roles in Shakespeare, the nature of what she said went beyond mere triviality and it did affect his reputation. It exposed him to contempt or ridicule.

Mere vulgar abuse is not usually defamatory, however.

Question 13

Byrne v Deane (1937)

Answer 13

(Defamatory Statement) Who are ‘right thinking’ people?

Objective test for ‘right thinking’ people.

Mr. Byrne was a member of a golf club, and he objected to the fact that some illegal gambling was taking place on the premises. He therefore told the police. The next day a note was pinned up on the members’ board which read: “He who gave the game away, may he Byrne [spelt as his name] in hell and rue the day”.

The allegation was that he had done something on unsavoury. He tipped off the members of the club to the police, and that was something that the other members felt was poor shabby behaviour.

The allegation there was that he was a shabby character and that he had ratted on his fellow members.

What the court said was that right-thinking people when they are looking at the allegation should be ordinary reasonable people — an objective test — not members of any particular class.

The point here was that although the fellow members felt less of him, the ordinary member of society would actually applaud him for going to the police.

Question 14

Charleston v News Group Newspapers [1995]

Answer 14

(Defamation) Right Thinkers…

These two characters were a married couple. They were really boring, and they were called Madge and Harold.

Madge and Harold objected when pictures of their heads in a magazine article were superimposed on nude bodies in a very lewd pornographic poses.

There were all sorts of bylines and headlines — one of them was ‘soap studs’, and was’ What is Harold up to in our Madge?’ So things along those lines — really cheesy.

They objected to that. They argued that people would see the pictures and that they would be drawn to the headlines, and they would at the minimum think that Madge and Harold had perhaps given permission for their images to be used.

The Court said, however, that if you read the whole article that it was clear that it was about a computer game. The computer game allow you to take a celebrities’ heads and put them on porn poses, and the article was condemning it – the article was saying that this was not right. So, if you had read the whole story you would understand as a right thinker but nothing untoward was being said about Madge and Harold. Therefore, Madge and Harold lost their case.

Question 15

Section 1, Defamation Act 2013

Answer 15

Serious threshold.

Section 1(1) goes on to say that the statement must have caused or be likely to cause ‘serious harm’s the claimant’s reputation.

You still need to show that it is defamatory at common law. But you then need to go on to prove that the statement it is defamatory under statute bypassing this seriousness threshold.

It is clear from the few cases that have looked at this requirement that this does require some evidence.

The claimant has to prove this on the balance of probabilities.

Question 16

Lachaux v Independent Print [2015]

Answer 16

(Must prove serious harm to reputation after Section 1(1) Defamation Act 2013)

The claimant has to produce evidence to show actual or likely serious harm to reputation.

Question 17

Cooke v MGN [2014]

Answer 17

Seriousness of statement has to be viewed in light of any immediate and abject apology.

Question 18

Monroe v Hopkins [2017]

Answer 18

Initially Hopkins was tweeting to another person; she then made a mistake and sent a tweet incorrectly to Jack Monroe. It alleged that she either had a vandalized war memorials or that she condoned it.

It was a rather difficult slur for Jack Monroe to accept because her family had all lived through the military; her father was a celebrated military man; her brother was in the military too. She was the least likely person to ever have done this.

For our purposes, there are a few points from the case. What the court said about serious harm was that serious harm did not mean grave harm.

So, how serious is ‘serious’? That was the issue in the case. Serious harm did not mean that her reputation had to be gravely damaged.

I am thinking that there is a case to be had here still to clarify this further, but it clearly needs to be more than trivial, but it doesn’t have to be as much as grave harm to someone’s reputation.

What the Court accepted was this was serious even though it wasn’t grave harm to her reputation.

Question 19

McAlpine v Bercow [2013]

Answer 19

(False Innuendo)

Sally Bercow, who is the wife of the speaker John Bercow, wrote an article a few years back and she tweeted about it as well. It was about Lord McAlpine, he was a preeminent politician. For a while he was alleged to be caught up in the pedophile ring which had allegedly operated in Parliament for some years. In Sally’s tweet she said: “Why is Lord McAlpine trending? innocent face”

She had “innocent face” in Asterix. Apparently that is meant to inject sarcasm. So, that was a sarcastic way of saying that he was not innocent at all and that is why he was trending, and guilty of these allegations of pedophilia that have been put forward.

So, that was the allegation. The innuendo was the hidden meaning of that bit and Asterix — innocent face.

Like the Monroe case it does show that ordinary right thinking members of society who are looking at this…again, we need to move with the times. Again, here the reasonable ordinary thinker was someone with that relevant Twitter experience.

Question 20

Lewis v Daily Telegraph [1964]

Answer 20

(False Innuendo)

However, one that is not according to the case Lewis v Daily Telegraph [1964] is where you say something along the lines of “the police are investigating the affairs of X”, or quite commonly news papers say “Mr. X is helping the police with their inquiries.”

Question 21

Tolley v Fry [1931]

Answer 21

(True Innuendo)

The case that illustrates this is quite old, but is concerned Mr. Tolley who was an amateur golfer. In days gone by, and we are talking more than two decades ago in this country, sport in most forms was heralded as amateur. People didn’t accept money for playing golf or cricket. Football has been professional for a while. But those sort of traditional sports – golf and cricket – were amateur games for which no money changed hands.

What happened here was that Mr Tolley was pictured with the bar of Fry’s Chocolate tucked into his back pocket.

What the court said was that with this extra knowledge of amateur sport, the picture gave rise to an innuendo that he was endorsing the product for money. That was the innuendo – with this extra knowledge of amateur sport, the right thinker would feel that he was endorsing the product for money against his amateur status.

Question 22

Hunter v Jones (1910)

Answer 22

(Statements must refer to the claimant)

This was a piece of fiction. A series of short stories written in a newspaper about a fictional character who was called Artemis Jones. Artemis Jones lived in Peckham, and in these stories he went to morally suspect trips to Dieppe. So, that’s what it was about – his visitations across the channel to visit prostitutes and all sorts of things in Dieppe.

This was a series of stories. Unfortunately, for the writer who thought that Artemis Jones was a work of fiction, there was a real Artemis Jones who also happened to live in Peckham. So, the story, though fiction through intention, was clearly capable of referring and was understood to refer to the real Artemus Jones who then had a claim for defamation.

Innocence or mistake is no defence. Intention is not part of the tort.

Question 23

Newstead v London Express [1940]

Answer 23

(Statements must refer to the claimant)

The next case was fact rather than fiction. It was a factual news story about a man called Harold Newstead who had been convicted of bigamy, and he lived in Camberwell.

It is a story about the trial of Harold Newstead, a convicted bigamist, who live in Camberwell. Unfortunately there were two Harold Newstead’s who lived in Camberwell. So, although this story was correct and true for one of them, for the other one it was a false accusation. Again, the fact that no intention was present did not prevent the innocent Harold Newstead from bringing a claim.

So, presumably you’ve all seen at the start of films and books as well these disclaimers that appear – no references to persons living or dead is intended, and if there is any such reference the writer is not liable, etc. They are complete bluff.

Question 24

Sections 2-4 Defamation Act 1996

Answer 24

In these mistake cases, it is possible to prevent legal action by making an apology and offering to pay compensation. An offer of amends is an inbuilt statutory process which can protect defendants who innocently defame other people.

Question 25

O’Shea v MGN [2001]

Answer 25

(Statements must refer to the claimant - photographs)

Mirror Group Newspapers used a photograph of a woman in an advert for a pornographic website. In the back of the paper there was this ad and in it, there was this picture of a woman. Unfortunately it strongly resembled the claimant. It probably wasn’t her, but it strongly resembled the claimant.

What the court said, and they were relying on the need to be proportionate that comes from the Human Rights Act…this balance between Article 8 and Article 10 (freedom of expression)… and they said that there were far too many images available worldwide today to expect publishers to check every image for similarity.

Effectively, there are far too many images available worldwide to expect publishers to check for similarity. To expect that would be disproportionate.

In that case, for photographs, the case got no further.

Question 26

Knuppfer v London Express Newspapers (1944)

Answer 26

(Statement must refer to the claimant - group)

A story about a Russian political group that existed between the wars — the Maldo Russ. There was a defamatory statement made about Maldo Russ, but worldwide the group ran to several thousand members or is. What the court said was that this defamatory statement couldn’t possibly refer to every single member of the group. The group was just too wide. So, individuals could not bring a claim.

Question 27

Tilbrook v Parr

Answer 27

(Statement must refer to the claimant - group)

It was a statement about the English Democrats, affectively alleging that they were racists. As a group, they run to several thousand as well, so the chairman of the English Democrats was unable to bring a personal claim to defamation. The group was too wide, in a statement could not have possibly refer to each member of the group.

Question 28

Huth v Huth (1915)

Answer 28

(Statement must be published)

A letter was written saying quite nasty things about the claimant. It was addressed to the claimant, but it was opened by the butler. The butler read it.

It was not reasonably foreseeable that the butler would read your letter.

Question 29

Theaker v Richardson (1962)

Answer 29

(Statement must be published)

There was a letter written about the claimant -containing nasty allegations, and this time it was her husband who opened and read it.

In 1962, for women, it was foreseeable that a woman’s private letters would be opened and read by her husband.

Question 30

Bunt v Tilley

Answer 30

(Statement must be published)

What the court said in this case was that Internet service providers would not be publishers.

Question 31

Section 8 Defamation Act 2013

Answer 31

The new Act brings in a single publication rule.

Question 32

McManus v Beckham [2002]

Answer 32

(Statement must be published)

This is about Victoria Beckham. She went into a memorabilia shop that was selling photographs purportedly signed by her husband. She was adamant that this was not his signature and that they were fakes. She said something to that effect to the shop owner. You can imagine the sort of language that she may have used. It was said, so slander, in a shop that this man was a fraud and that these were fakes, etc. Unfortunately, there were other people in the shop. So, this was not a private communication – she was overheard and very quickly the story got out to the press. So, what she said was repeated to the press who then published stories about it.

In this context she was the original speaker – the original publisher. The court said that because of her celebrity it was reasonably foreseeable that what she said, if overheard, would be repeated. So, she was potentially liable, not just for what she said, but also the later stories in the press.