Defamation - Introduction Flashcards
What is defamation?
Defamation is the act of causing injury to a person’s reputation through oral statements or written publications.
What is the main authority regarding defamation?
The Defamation Act 2013
there is also a wealth of common law that informs it
What is the relationship between Defamation and the HRA?
Defamation as a tort is in tension with freedom of expression protected by Art 10 of the ECHR since defamation prohibits some forms of speech that harm the reputation of others.
How is the tension between Defamation and the HRA somewhat reconciled?
Article 10 of the ECHR is a qualified right and ss(2) allows for limits on expression ‘for the protection of the rights and freedom of others’. Defamation may be said to perform this function by protecting interests and maintaining reputations - thus justifiable under Article 10.
What are the four key elements of a claim in defamation?
- D made a defamatory imputation
- The defamatory imputation identified C
- The defamatory imputation was published
- D is unable to prove a valid defence
What are the two separate torts encompassed by defamation?
- Slander
2. Libel
What is the distinction between slander and libel?
Libel is an act of defamation in permanent form (e.g. writing).
Slander is an act of defamation in transient form (e.g. speaking).
How can slander and libel be further distinguished based upon how they are made out?
Slander generally requires that the claimant suffers a specific pecuniary loss as a result of the imputation whereas libel can be made out on serious harm to reputation.
What are the exceptions to the position that slander requires evidence of a specific pecuniary loss?
Slander is actionable without pecuniary loss where the Defendant imputes that;
The Claimant was guilty of an imprisonable criminal offence; or
The Claimant was unfit, incompetent or dishonest when carrying on a profession, trade, calling, or business.
Is it possible for parties to sue for defamation on behalf of the dead?
No, the dead cannot be defamed - this was established by the Miscellaneous Provisions act 1934, s1.
Is it possible for governmental and public authorities to sue in defamation?
No, they lack the capacity to do so - this was established in the case of Derbyshire CC v Times Newspapers Ltd.
What are the details and findings of the Derbyshire CC Case?
Articles were published that questioned the propriety of investments made by the council in its pension fund. The council brought actions for libel against the Newspaper. The attempted libel actions by the Local authority were denied because Local Authorities must be open to criticism as political bodies, so can’t sue for defamation.
Is it possible for political parties to sue in defamation?
Political Parties cannot sue in defamation - but individual politicians can - shown in the case of Goldsmith v Bhoyrul.
Is it possible for companies to sue for defamation?
Companies, partnerships, and incorporated entities can sue, but unincorporated associations can’t - as shown in the case of EETPU v Times Newspapers Ltd.
Can non domiciled persons sue for Defamation in England and Wales?
Non domiciled persons cannot sue in England and Wales unless the courts are ‘satisfied that, … England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement’. The authority for this is s 9(2) of the Defamation Act.
