Defamation II Flashcards
Defences
Truth Honest opinion Privilege Publication on a matter of public interest Reportage Offer of amends Innocent dissemination Other defences: Section 5 and Section 10 DA 2013.
Alexander v Northeast Railway [1865]
This concerned a notice — a name and shame-type notice; someone has committed an offence, and their name goes up with the details of their crime. That was the scenario here: a notice was put up by the Railway Company stating that the claimant had been caught without a ticket and had been fined £9 and sent to prison for three weeks. That is what the notice said. In fact, Alexander had only gone to prison for 14 days; so there was a minor in accuracy. The court was happy that the statement was substantially true – the sting of it was true.
Williams v Reason [1998]
This involved a very famous amateur rugby player, Jake Williams. The defendant wrote a story alleging that Williams took money for doing certain things; that he had taken money to wear a particular brand of shirt, and that he had taken money to write a book about rugby. That was the allegation made by the defendant — that Williams had taken money relating to his sport.
Just to put this into the social context, in the 1990s rugby was a completely amateur game. It was frowned upon and it was against the rules of the game to take money for any involvement in that sport.
Now, what the defendant could prove was that the claimant had taken so-called “boot” money — that he was taking money to wear a particular brand of rugby boot. But in fact, the defendant couldn’t prove that he had been paid to write the book, nor wear a brand of shirt.
What the court said was that effectively the defendant’s story, the underlying factual allegation, was of something called by the Court “sham-amateurism” — that he was a sham-amateur. Williams claimed to be an amateur, but he took money. That was the sting of the story, and the court was happy that that was proven true. Although there had been a minor inaccuracies he had been paid money to wear a particular brand of boot – that was enough to justify the sting of sham-amateurism.
But this is something that the court has got to assess. They have got to decide what the underlying factual sting of the story is.
Grobellaar v News Group [2002]
There’s another quite famous, in its day, sporting case which involved the goalkeeper for the Liverpool Football Club, Bruce Grobellaar. Grobellaar v News Group [2002]. He was covertly caught on video saying that he would take money to throw matches; that he would goal keep badly in order to throw fixed matches. That was covertly videoed by the Sun Newspaper.
The story was published, and when the allegation got to court, the court said that the way that the story was written…the sting of it was that he had actually taken money and gone on to fix matches. So, the sting of the story as written was that he had actually taken the money and gone on to throw matches. That was the sting – that he had actually done this.
Unfortunately for the newspaper, all that their video proved was that he was prepared to do this. He was prepared to conspire, if you like, to fix matches. So, the video did not prove the sting of the allegation.
The sting was that he had actually taken the bribe; all the video proved was that he was prepared to throw games, not that he had actually done so.
Working out what the sting of the story is is one of the issues that can go to court.
Interesting, though, Bruce Grobellaar…although he won, he was awarded £1, which is known as ‘contemptuous damages’. He was given compensation, but the £1 reflected the Court’s belief that he was actually corrupt. He had his legal case, he won, but he got £1. This is quite rare.
Section 2(3) Defamation Act 2013
says is that the defence does not fail if the imputations/allegations not proven true don’t substantially damage the claimant’s reputation in light of what has been proven true.
‘defence does not fail if the imputations not proven is true do not substantially damage the claimant’s reputation in view of what has been proven true.’
Robson v News Group [1996]
ow, in this particular case there were two factual allegations/imputations made against the claimant. Firstly, was that he had defrauded the Department of Social Services. Secondly, was that he had a conviction for a £4 million mortgage fraud. Arguably the court could have said that there was one underlying sting, but in this case they decided these were separate allegations. These were different allegations that had to be dealt with differently.
One was defrauding without the conviction, and one was the conviction for a mortgage fraud.
On the facts of the defendant could only prove the second of these two true. The defendant was able to prove the fact of the conviction.
What the court said, and this is reflected now in Section 2(3), is that in light of that…in light of the fact that he had a mortgage fraud conviction the other unproven allegation had no extra detrimental effect on his reputation. His reputation was already gone. He had a dishonesty conviction. In light of that which was proven true, the first imputation which was not true had no additional adverse effect on his reputation.
So, lack of proof there did not defeat the defence.
That is I said is now reflected in Section 2(3).
Section 3 Defamation Act 2013
(Honest Opinion)
Firstly, this defence only applies to statements which are of opinion’s, not fact. It is this defence which really does protect the media in terms of restaurant reviews, theatre reviews, reviews of actors, etc. It’s keeps the ability to give your opinion. Your opinion is protected by this defence.
It applies to opinions, not fact.
Now, usually that will be obvious. Certainly for exam problems I will usually try to make this quite obvious that you are dealing with an opinion rather than a fact.
What distinguishes between a fact and opinion is whether they are capable of being proved. Facts can be proved true; opinions obviously can’t. Usually it is obvious – you look at the substance of the statement.
Secondly, the next thing that Section 3 says is that the statement must indicate the basis for the opinion. This very much balances the ability to speak your mind with the need to protect reputation.
Effectively, the law requires you to be commenting on something which is real. You cannot just a mouth off; you cannot just make things up. This is an inbuilt balance to protect reputation. You cannot just go around making something up about a claimant. You have to be basing your opinion on something which is real and has happened. That needs to be indicated; it can be implicitly indicated from what you say.
I am just going to give you a really silly example: if I said “Mr. X is a really awful cook”… If I just said that, and I just made it up because I do not like him, then I wouldn’t be able to rely on Section 3. This is because I am just making something up; I am not basing my opinion on his cooking skills on anything that has happened.
But if I said: “based on the meal he cooked me last night, Mr. X is an awful cook”, then you have got your factual basis for the opinion that you are giving.
You have to be basing your opinion on something. So, if it is a theatre review you have got to see the play. You can’t just make stuff up. You have to indicate what it is that you are referring to.
Telnikoff v Matusevich [1991]
Statements of opinion, not facts…it may well be obvious, but if it is not Telnikoff says to look at the context of the statement and the manner of expression.
The problem is that sometimes opinions can be presented as facts, and sometimes something that can be set in a factual way which actually you end up concluding is an opinion. So, if it is not obvious you need to delve a little bit more deeply.
In the case itself…this was a letter written by the defendant to the Daily Telegraph about the claimant effectively suggesting that the claimant was a racist and advocated ethnic cleansing of Russian Jews. The letter effectively said that the claimant was anti-Semitic and advocated ethnic cleansing of Russian Jews.
The defendant argued that even though he had written this very much in a factual way…so he made what appeared to be factual allegations, if you look at other things that he had written and other things that he had said publicly, it was clear that this was merely his opinion.
So, in this particular case the defendant had written this in a factual way, but he said that extrinsic material made it clear that he was merely giving his opinion.
Now, what the court said was that when you are assessing factual opinion you have to ignore extrinsic material. The reader won’t have that. You have to ignore extrinsic material.
The court said that you have to ignore extrinsic material because the reasonable reader will not have that available. If there is any doubt you look at the context and the manner of expression in the statement itself.
The problem for the defendant here was that he had not caveated what he said. In no case had he said “in my opinion”; he also had not used words like “allegedly”. He had not made it clear in what he had written that he was giving an opinion. He had presented it as fact.
That is what the Court had accepted. Despite saying “it is my opinion”, the court accepted that this was factual from the context and manner of expression, and because he was unable to prove the truth of what he wrote, he had no defence. So, effectively the defence here, because it was factually written, he was unable to prove what he wrote as true.
That is the first requirement from Section 3. The statement must be opinion not fact. Generally, particularly in problems, that will be obvious.
Certainly, the two defences that we are looking at to begin with are mutually exclusive. If it is fact you use Section 2, and if it is opinion you use Section 3. You cannot use them both. It is one or the other.
Joseph v Spiller [2011]
This is about a mow-town tribute band called the Gillettes. The lead singer was Craig Joseph, who is in the middle of the picture on the slide. The Gillettes had a manager who got them gigs, and they fell out with him. Particularly with one customer, they decided as a band that they wanted to deal directly with this customer – BeeBee’s Restaurant in London. So, the band, they had a manager…but they decided to ditch their manager and deal directly with this particular client.
What then happened is the defendant, who was the manager, put a notice on his website which effectively said that the Gillettes were not professional enough to feature in his portfolio anymore, as they had not abided by the terms of their contract. I am summarizing what the notice actually said.
What the court said here… Illustrating this point about basing your opinion on something, was that the reference to the breach of contract was sufficient to indicate what the opinion was being formed on. The opinion was that they were not professional enough, and that was based on this breach of contract which was alluded to in the notice.
Turner v MGM [1950]
Lord Porter said honesty…effectively he is asking: “would any honest man, however prejudiced he might be, or however exaggerated or obstinate his views have [made] the statement?”
It merely needs to be an opinion which an honest man could hold. As I say, there is obviously quite a lot of scope and that for people to be able to give what we might say are ‘crank’ opinions — homophobic, bigoted, racist, etc.
That again is to reflect freedom of expression. So, it is inappropriate in a democracy merely to be allowed to say what is fair and reasonable. You have to be able to give an opinion.
Watt v Longsdon [1930]
Just to illustrate that, let’s briefly look at the facts of Watt. This concerned an employee of a company working overseas. It was an ex-pat employee. This employee had, while living his ex-pat life, been up to a little bit of no good. He had been heavily drinking, he apparently had not been paying his bar bills, and there is some suggestion that he had been involved in some extramarital affair. That was the employee.
The defendant was a colleague of this employee and he wrote a letter to effectively their boss. Their boss was Mr. Longsdon, who was the defendant in the case. He was also one of the directors of the company. In this letter was details about the impropriety — the drinking, the debts, and the extramarital affair.
The defendant got this letter and what he then did is show it firstly to the chairman of the company — the top man — but secondly, he also showed it to the claimant’s wife. The claimant’s wife immediately instigated divorce proceedings, we are told in the case report.
Looking at this common-law privilege, as regards showing this letter to the chairman of the company, the court was happy that the defendant – the director – had a duty to pass on this information. It was relevant to the ability of this man to carry out his job. The chairman was in a corresponding interest position that he was interested in receiving that information about a member of staff.
But as regards the wife, the court was satisfied that there was no moral, legal, or social duty to pass on the information to her. Although she was interested in knowing about her husband’s band behaviour, there was no legal, moral, or social duty, and a lack of reciprocity meant that the defence failed.
So, as regards to the communication to the wife – showing the letter to the wife – that fell outside common-law qualified privilege.
Reynolds v Times [2001]
In the newspapers in this country, the Times Group Newspapers had various things written about him, which effectively argued that he had been dishonest in things that he had said to the Irish Parliament.
That was the context of the story. He had the story written about alleging that he had been dishonest in things that he had said to the Irish Parliament.
Now, these things that were written were facts – they were factual things — and the Times was unable to prove what they had written was true. So, they were not able to avail themselves of the defence of truth.
But they nonetheless said that as a Newspaper they needed a little bit of leeway in order to be able to report serious matters. It may be that there was a legitimate reason why they still felt that they needed to explore the story, even though in terms of evidence they weren’t able to prove it absolutely true.
But the problem for the newspapers…when it came to another defence, the only other defence…so if the front line defences don’t work —that’s ‘truth’ or ‘opinion’ — then the other defence is ‘qualified privilege’, and what the newspapers have found up until this point is that the Courts were reluctant to fit them into this duty-interest reciprocal relationship.
So, what we have just said…for common law qualified privilege you need a duty and an interest.
It is clear that at point people bought or now looked online…people look at news, so we are interested…but the problem was showing when the papers would be under a duty to publish.
So, for common-law qualified privilege, the problem until this point in 2001, was working out when the newspapers would be under a duty to publish.
Now, I’m going to go through this much more swiftly than I would have done so four years ago, but what the court in Reynolds did was therefore create a bespoke offshoot of common-law qualified privilege which would apply just to the media. That was the idea.
The scope of this offshoot was that it would cover media reports on matters of public concern — Section 4(1) Defamation Act 2013. This was just to give the press a bit more freedom to produce what they would consider as public interest stories.
What the court said was that because the press don’t fit into this duty interest reciprocal relationship very well, then that duty or interest will be assumed if the publication was responsible. The case creates a test of responsible journalism.
If you are able to show that your publication is responsible, satisfying this test of responsible journalism, Lord Nichols who was in the Court of Appeal here, set out in ten quite detailed points. If you are able to show your publication was responsible, then duty-interest is assumed, and you would get common-law qualified privilege.
Economou v de Freitas [2016]
Now, you may recognize the facts of this case because they were quite widely reported. It is a tragic circumstance. It involved three people – Ellen de Freitas, who is not the defendant (the defendant was her father), was in a relationship with the claimant, Philip Economou. Ellen de Freitas was a cellist…quite a good musician. The relationship fell apart in bad circumstances which ended up with her alleging that he, Economou, had raped her. She went to the police, and the police eventually decided that she was making this up. The police then prosecuted her for perverting the course of justice.
Now, the reason why this case was in the press is that the day before her trial for perverting the course of justice she killed herself.
So, she alleged rape, the police did not believe her; Economou was not prosecuted; instead she was prosecuted for perverting the course of justice. She killed herself the day before her trial.
What then happened was her father made various statements to the press. De Freitas was her father; he made various statements to the press in which it was clear that he felt that the claimant was guilty of the rape. He made allegations about the process, CPS’s role, and all sorts of things.
Now, if you want to find out exactly what he wrote about, have a quick look at the case. But, for our purposes what Judge Warby said was that when you were interpreting the Section 4 defence, it referred you to all of the facts of the case, and he said that in interpreting that regard should still be had to the ‘Reynold’s factors’.
So, when you are looking at this defence, and it was the second part of the defence – was the defendant’s belief reasonable — that regard should still be had to the ‘Reynold’s factors’.
The only caveat Judge Warby said was that you need to tailor the Reynold’s Factors to the facts of the particular case.
Obviously, the defendant here was not a newspaper. He was a private individual who had limited resources in terms of verifying the story and checking things out, etc. So, there was a bit more flexibility, Judge Warby suggested. Nonetheless, the Reynold’s Factors remain important in interpreting particularly this reasonable belief of whether the publication was in the public interest.
So, it is still important for you to know what those Reynold’s Factors are. Rather than laboriously go through them, if you just Google them you will find them very quickly.
Flood v Times [2012]
Now, what Section 4(3) says, codifying the Flood v Times case, is where the story is merely reporting a dispute, then in interpreting the circumstances of the case, and this feeds back into public interest, it is not important that the defendant has failed to verify the contents of the statement.
So, in my example, the content of the statement is about drug taking. It would not matter, because essentially that is not the important point if you failed to verify that. This is because you are actually reporting on the dispute.
This is known as ‘Reportage’.
Bonnard v Perryman [1981]
Injunctions are discretionary. Obviously, what you want is an injunction ideally before the story comes out about you. So, in the context of the media, you want the injunction given at an early stage. That will be before your full case is heard. Now, that is known as an interim injunction. There is case law which suggests that you can get interim injunctions, but only in the clearest of cases. Bonnard v Perryman [1981].
You can get your interim injunction, but only in the clearest of cases. So, effectively, only where it is clear that you are going to win at trial.
