Defamation part 1 Flashcards
Generally, what does the tort on defamation do?
- The torts of defamation aim to provide C with protection from wrongful assaults on C’s reputation.
- Unjustified criticism of the claimant to another, which has caused or is likely to cause serious harm to the claimant’s reputation, gives rise to the tort of defamation.
- It is the claimant’s reputation, not injured feelings, which the tort aims to protect.
The tort of defamation must attempt to balance what?
The tort of defamation must therefore attempt to balance the competing rights of freedom of expression and protection of one’s reputation.
Is defamation defined at either statute or common law?
No.
Which individual and book criticises the lack of definition in regard to defamation under UK law, what do they state?
‘The common law of defamation suffers from a fundamental deficiency: there is no principled, theoretically coherent statement of law regarding what is defamatory’.
(L. McNamara, reputation and defamation (OUP, 2007).
What is the ‘threshold’ in regard to defamation? In statute, where is this threhold found?
iThere is a ‘serious harm’ threshold:
‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’… s.1(1) Defamation Act 2013.
This was an attempt to rebalance defamation in the act.
There is a requirement to balance free speech and defamation.
Thus, now there must be a cause or potential for serious harm.
What does defamation not offer protection against?
Defamation offers not protection from unkind or unwelcomed truths.
Is intention strictly relevant in defamation claims?
D’s intention is not strictly relevant.
Almost a strict liability element in defamation.
What are the six essentials of for a sucessful defamation claim?
- First, is this libel or slander? And secondly,
- who can sue in defamation?
- Is the statement ‘defamatory’?
- Does the statement ‘refer to the claimant’?
- Is the statement published?
- Do any of the defences apply?
What are the first two essentials?
The first two essentials are preliminary matters to a defamation claim, in a problem question they are still necessary to adress.
Out of all of the essential elemetns to a defamation claim, which is an incredibly substatial element?
Defences are a substantial part of defamation. Many of the defences are technical and there is overlap so key is to understanding when different defences may be applicable in order to be sucessful in the exam.
In a defamation question, what must be primarily identified, what is the first stage?
First, it must be determined is this libel or slander?
LIBEL <3
LIBEL <3
What is libel?
Libel is a defamatory statement with a degree of permanence (e.g., writing) which is actionable per se.
With the tort of libel, is there a requirement to prove damages have followed, if so or if not, why?
In libel, there is no requirement to prove any damage has followed,
because of its permeance in comparison to slander, the law assumes damage will flow from it, people think more about what they write, it reaches a wider audience, it holds a bigger impact potentially so it is actionable per se.
How is libel considered?
Libel generally is considered to be the more serious form of defamation.
Overall, how are the two torts of libel and slander distinguished?
These torts are generally distinguished on the basis that libel takes permanent form, for exam- ple, an article or a photograph published in a daily newspaper, while slander is temporary, for example words shouted across a classroom or gestures made to a crowd.
What is the first example Permanent /quasi-permanent form of libel?
Moving Pictures
Which authrity provides the understanding that moving pictures may amount to libel?
Youssoupoff v Metro-Goldwyn Mayer (1934)
What occured in Youssoupoff v Metro-Goldwyn Mayer (1934)?
- Metro-Goldwyn-Mayer Pictures, Ltd (MGM) (defendant) produced a film about how Rasputin’s influence on the czar and czarina caused Russia’s destruction.
- A woman who had a relationship with Rasputin’s murderer was represented in the film as having been seduced or raped by Rasputin.
- Princess Irina Alexandrovna (plaintiff), who was later married to Prince Felix Youssoupoff, one of Rasputin’s murderers, issued a writ for libel against MGM.
What was held/ state by Lord Justice Slesser in this case?
‘Not only is a matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt, by reason of some moral discredit on her part, but also if it tends to make the plaintiff shunned or avoided and without any moral discredit or her behalf’.
What is the principle we may take from this case?
Imputation may be defamatory if it ‘tends to make the plaintiff shunned or avoided…’
Which authority provides the understanding that wax figures/ dummied may amount to libel?
Monson v Tussauds [1894]
What occured in Monson v Tussauds [1894]?
- The plaintiff had previously stood trial in Scotland on a charge of murder involving a gunshot. The verdict rendered by the jury was “Not proven.”
- Subsequently, the proprietors of a wax figure exhibition, which featured representations of both celebrated and notorious individuals, included a model of the plaintiff holding a gun described as his own.
- The plaintiff initiated legal action against the exhibition proprietors, accusing them of libel.
What was held in this case?
- The Queen’s Bench Division, consisting of Justices Mathew and Collins, held that the case was unequivocally one of libel, making a contrary verdict unreasonable.
In light of such authority, what do far will amount to a libel?
- Applies to moving pictures, written words, wax dummies.
- Sufficiently permanent to substitute a libel.
- This would apply to statues etc.
There are two statutory based examples of libel, what are they and what are the provisions governing them?
- Broadcasting Act 1990, S166 - television and radio broadcasts are treated as libel.
- Theatres Act 1968, S4 - a theatre performance is a libel.
Which authority provides the understanding that tweets may amount to libel?
McAlpine v Bercow [2013
What occured in McAlpine v Bercow [2013]?
- The C was a former Conservative politician, who had been a close aide to Margaret Thatcher.
- The D is the wife of the speaker of the House of Commons and has appeared on television. She had over 56,000 Twitter followers.
- On 2 November 2012, the BBC’s current affairs programme Newsnight broadcast a report which included a serious allegation of child abuse. The complainant alleged that he had been abused in the 1970s and 1980s while in care, and the abuser was referred to as “a leading Conservative politician from the Thatcher years”.
- The identity of the politician became a matter of intense public speculation.
- On 4 November 2012, the D published the following ‘tweet’: “Why is Lord McAlpine trending? innocent face”.
- C brought a claim in defamation against D on the basis that the tweets natural and ordinary meaning, and/or in the alternative, by way of innuendo meant he was a paedophile who was guilty of sexually abusing boys living in care.
What was argued in these circumstances?
There was some discussion as to tweets and libel here in regard to their permenance, they are not always permanent in the sense that people glance and swipe.
What was held in McAlpine v Bercow?
The reasonable reader would infer that the D had provided the “last piece in the jigsaw” in the public speculation concerning the identity of the complainant’s alleged abuser and the tweet was held to be libel.
SLANDER <3
SLANDER <3
What is the defintion of slander?
Slander is a non-permanent form of defamation (e.g. spoken word) which requires proof of special damage such as an actual loss estimable in monetary terms.
In my own words, how can slander be understood?
Slander is a non-permanent form of publication, often the spoken word in which you need proof of special damage, this is an actual or crude loss which can be quantified in monetary terms.
This is something we can put a price on,
for example slander leading to a loss of sponsorship, loss of money is clear.
Essentially, slander is a type of defamation, specifically a false spoken statement that damages someone’s reputation.
Which authority suggests the act of escorting the claimant from a betting shop was capable of being defamatory?
Mason v William Hill (1983) (unreported).
Why did the Mason v William Hill (1983) case amount to a slander?
The gesture of escorting someone out of the casino implied the claimant was guilty of some misconduct within the casino and thus was treated as a slander.
Slander often requires C being able to evidence a ‘special damage’, there are however two exceptions, what are they?
- Imputation of Criminal Offence Punishable by Imprisonment in the First Instance.
- Imputation of Unfitness to One’s Trade or Calling /Incompetence/Dishonesty
The allegation must affect the claimant ’s fitness for the position.
What does this mean?
In regard to slander, if a slander imputes one of the two exceptions outlined above, it is not necessary for a claimant to need to proove special damage.
These two exceptions can be actionable per se.
Which authority provides that an imputation of Criminal Offence Punishable by Imprisonment in the First Instance will be actionable per se?
Webb v Beavan
What was the slander in Webb v Beavan, what was held?
In Webb v Beavan, it was stated that
“I will look you up in Gloucester gaol next week. I know enough to put you there”.
This was held to imply that a criminal offence had been committed and so was actionable per se.
What will not suffice in these circumstances?
An allegation that an individual is suspected of a criminal offence will not suffice.
Which authority provides that an allegation that an individual is suspected of a criminal offence will not suffice?
Simmons v Mitchell (1880)
What is the scope of the exception that an imputation of Unfitness to One’s Trade or Calling /Incompetence/Dishonesty will be actionable per se?
- This is the most important exception.
- A statement criticising a person’s professional competence or fitness for office may affect his or her reputation and will be difficult to brush off.
- The only question which has arisen here relates to the scope of the exception.
- At common law, it was held that the accusation had to relate directly to the person’s professional competence.
- The exception therefore did not apply where the accusation was unrelated to the post, for example where a headmaster was accused of committing adultery with one of the school’s cleaners.
The exception was broadened by which act and to include what?
The exception was broadened by the Defamation Act 1952 S2 to include all words likely to disparage the claimant’s official, professional or business reputation, whether or not the words relate to the claimant’s office, profession, calling, trade or business.
Can circumstances arise where there are multiple slanders and libels?
You can have a situation where there are chains of multiple libels and slanders.
Something may start as a slander and then become a libel in various forms.
In a problem question this chain is likely where a slander becomes a libel vice versa and who is liable, the initial defamer or the individual repeating the defamation, this is often to be the ambiguous area.
Libel /slander, is there a meaningful distinction?
- Unsophisticated rule of thumb.
- It is criticised.
- A book read by one person could be libel, shouting to 1000 people could be slander – the less serious offence, writing on a whiteboard – temporary and easy to remove but written so potentially still slander.
- The distinction is not always entirely clear.
What is the second preliminary matter which must be discussed within a question now i have identified if i am dealing with libe or slander?
II. WHO CAN SUE?
Can a corporation bring a claim in defamation for either libel or slander? Which authority provides us with an answer?
Yes, McDonalds Restaurants plc v Steel (1999) demonstrates how coroporations can sue in defamation.
What occured in McDonalds Restaurants plc v Steel (1999)?
- Steel and Morris (the applicants) were associated with London Greenpeace, which has no connection with Greenpeace International.
- In the mid-1980s London Greenpeace began an anti-McDonald’s campaign.
- In 1986, the applicants were handing out six-paged leaflets entitled “What’s wrong with McDonald’s?”
- McDonald’s alleged that the leaflets were defamatory in a United Kingdom court.
- For example, the first page of the leaflet showed a grotesque cartoon image of a man, wearing a Stetson and with dollar signs in his eyes, hiding behind a “Ronald McDonald” clown mask. Additionally, along the top of pages 2 to 5 was a header comprised of the McDonald’s “golden arches” symbol, with the words “McDollars, McGreedy, McCancer, McMurder, McDisease …” superimposed on it.
What was held in McDonalds Restaurants plc v Steel (1999)?
- Helen and Dave failed to prove all the points and so the Judge ruled that they HAD libelled McDonald’s and should pay 60,000 pounds damages.
- They refused and McDonald’s knew better than to pursue it.
- In these circumstances, McDonald’s appeared to damage its reputation anyway, there were no real winners.
Since this case, S1(2) of which act imposed a stricter seriousness threshold in regard to corporations?
S1(2) of the Defamation Act 2013.
What does S1(2) of the Defamation Act 2013 provide?
‘…Harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial harm’.
–Elevates the burden of proof!
Can a local government bring a claim in defamation for either libel or slander? Which authority provides us with an answer?
The right to sue in defamation can be excluded for certain groups of individuals, local governments and bodies cannot sue.
Derbyshire CC v Times Newspapers [1993].
What did Lord Keith state in Derbyshire CC v Times Newspapers [1993] outlining this principle?
‘It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism … all other utterances or publications against the government must be considered absolutely privileged’.
Can political parties bring a claim in defamation for either libel or slander? Which authority provides us with an answer?
The rule above is applicable here to political parties also, they are not entitled to bring a claim in defamation.
Goldsmith v Bhoyrul [1998].
What was stated by Justice Buckley in Goldsmith v Bhoyrul [1998]?
‘The public interest in free speech and criticism in respect of those bodies putting themselves forward for office or to govern is also sufficiently strong to justify withholding the right to sue’.
How effective is the ruling in Goldsmith in protecting freedom of speech on political matters?
Not very,
Members of the political party can sue, it does not apply to individuals, just the party as a whole, so how is it even effective.
Big companies can also sue, and some big companies yield more political influence then some nations.
Can claims in defamation be brought on behalf of the deceased?
In defamation, family members cannot bring claims on the behalf of those who have died.
You cannot sue to defend the reputation of a dead person.
Which statutory provision provides that in defamation, family members cannot bring claims on the behalf of those who have died?
S1 of the Law Reform Miscellaneous Provisions Act 1934.
What are the three general requirements of defamation following the preliminary matters which must be discussed in an assessment?
In order to succeed in a defamation suit, the claimant must prove to the court’s
satisfaction:
- (1) that the statement was ‘defamatory
- (2) the statement ‘referred to the claimant
- (3) the statement was ‘published
Outline the first substantive requirement to a sucessful defamation claim?
The statement must be defamatory.
THE STATEMENT MUST BE DEFAMATORY <3
THE STATEMENT MUST BE DEFAMATORY <3
What does the defamation act establish in regard to defamatory circumstances for both libel and slander?
The Defamation Act 2013 establishes a threshold of seriousness for defamation claims, whether libel or slander.
In what section of the Defamation Act 2013 is this considered?
S1(1) of the Defamation Act 2013.
What does S1(1) of the Defamation Act 2013 state?
S1(1) ‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’
To which forms of defamation does this apply?
To both libel and slander.
In order for a statement to be defamatory, it must have caused or is likely to cause serious harm to the reputation of the claimant, if it is not deemed to meet this threshold what will happen to the claim?
If the courts decide the case does not meet this threshold, cases can be thrown out really early, it must not be trivial, or it will be dismissed.
S1(1) does not define what is defamatory so for its scope and understanding so how do we understand what will amount to the term defamatory to meet the threshold?
S1(1) does not define what is defamatory so for its scope and understanding we look to the case law.
Through case law, can we clearly understand the definition of defamatory, is there one singular clear rule?
There is no single test in order to determine what will amount to defamatory.
There are various ideas of what may amount to being capable of defamation.
We have 4 examples/ approaches which are still in common use.
What is the first approach to understanding if something will amount to defamatory?
- By ‘tending to lower a person’s reputation in the estimation of right-thinking people generally’.
Which authority provides this first approach?
Sim v Stretch [1936]
Who proposed the test in Sim v Stretch [1936] and what did they state?
Lord Atkin established a test in his judgment to decide whether words ‘in their ordinary signification’ were capable of defamatory meaning.
Stating that the classic approach whereby the claimant is exposed to hatred, ridicule or contempt might be too narrow, he proposed the following test:
“Would the words tends to lower the plaintiff in the estimation of right-thinking members of society generally?”
What was the outcome of Sim v Stretch [1936]?
- The claimant had a housemaid for a limited period of time, who re-entered the service of the defendant. Upon the maid’s arrival, the defendant sent the following telegram to the claimant: “E. has resumed her service with us today. Please send her possessions and the money you borrowed, also her wages to […]”.
- In the present case, the defendant’s words were found not to be reasonably capable of a defamatory meaning – so the claimant’s action was dismissed.
What should be noted regarding Sim v Stretch [1936]?
This is usually the go to definition of what is capable of being defamatory.
What is the second approach to understanding if something will amount to defamatory which extended the appraoch above.
‘By ‘tending to cause a person to be shunned or avoided’.
Which authority provides this second approach?
Youssoupoff v Metro- Goldwyn Mayer (1934).
How is this approach different?
This focus is different, there is an absence of the right-thinking person here.
The scope here is different.
Thus, what is the classic question in regard to if something may be considered defamatory?
The question is therefore whether your reputation has been harmed in the eyes of “right-thinking members of society”.
Essentially, what is this a standard of?
Essentially, this is the standard of the “reasonable person”, who is, of course, a fiction, but this sets at least an objective standard to be applied by the courts.
The reasonable person, we are told, is fair-minded, neither unduly suspicious nor unduly naive, nor avid for scandal, nor bound to select one defamatory meaning when non-defamatory meanings are available.
What is the third approach to understanding if something will amount to defamatory?
By ‘exposing a person to hatred, contempt or ridicule’.
Which authority provides this third approach?
Parmiter v Coupland (1840)
How does Parmiter v Coupland (1840) extend our understanding of what may amount to defamatory?
This extends what can be defamatory even further, can this cover stupid or boring, elements not likely to be covered by the above definitions.
What is the fourth approach to understanding if something will amount to defamatory?
By ‘imputing lack of qualification, knowledge, skill, capacity, judgement or efficiency in the conduct of his trade or business or professional activity’.
Which authority provides this fourth approach?
Drummond-Jackson v British Medical Association [1970].
What has changed since these approaches appeared in case law?
What has changed since these approaches appeared is the Defamation Act 2013 and the threshold of seriousness.
Which authority provides that relying on the harmful nature of the words themselves (their ‘tendency’ to cause harm to reputation) is not generally enough?
Lachaux v Independent Print Ltd [2019]
What was held in Lachaux v Independent Print Ltd [2019]?
By s1(1) a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”.
“Serious harm” refers to the consequences of the publication and depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.
“Likely” to be caused refers to probable future harm and not merely to the tendency of the words.
By means of the threshold requirement of seriousness following the 2013 act, what view do the courts portray?
By this means the courts have sought to exclude trivial claims, taking the view that the hypothetical reasonable claimant should not be unduly sensitive to criticism which does little harm to his or her reputation.
What did Tugendhat J argue regarding trivial cases which would not constitute to the threshold of seriousness?
Tugendhat J argued that imposing liability for defamation where the claimant had suffered no or minimal damage to his or her reputation would constitute an interference with freedom of expression which could not be justified under ECHR art.10
In which authority was this argued?
Thornton v Telegraph Media Group.
S1(1) requires that C should generally provide what in a defamation case?
S1(1) requires that C should generally bring evidence of what has happened since the statement to demonstrate that serious harm to reputation has occurred or is likely.
How may evidence come about?
Someone may show a decline in followers for example, or someone may rely on special witness evidence to prove that the defamation is having a detrimental impact but the words themselves are not enough.
JUDICIAL GUIDANCE ON WHAT IS CAPABLE OF BEING DEFAMATORY:
JUDICIAL GUIDANCE ON WHAT IS CAPABLE OF BEING DEFAMATORY:
In order to be defamatory, must the statement impute immorality/ portray C as of bad character? Which authority provides our answer?
No,
Youssoupoff v Metro-Goldwyn Mayer (1934) – imputation that C raped or seduced by Rasputin.
What do we learn from this authority?
This was defamatory, it would cause people to avoid her.
Maybe use this to support arguments the potentially portraying someone as a victim can be defamatory.
Not just making someone out to be a bad person but also that they have suffered.
What is another authority which provides that the statement need not impute immorality/ portray C as of bad character?
Villiers v Monsley (1769)
What occured in Villiers v Monsley (1769)?
Regarding someone as a ‘old nasty, old stinking, old itchy, old toad’ was defamatory.
It would cause people to avoid the claimant.
Goes beyond the claimant being a bad person or being guilty of a wrongdoing.
Usually, the defamatory statement must lower reputation with right-minded members of society, What if the effect of the statement is merely to affect standing with a small group? Which case helps us understand such matters?
Byrne v Dean [1937].
What occured in Byrne v Dean [1937]?
The court held that the notice was not defamatory, as a ‘right-minded person’ would not think less of a police informer.
- The C was a member of a golf club which installed illegal gambling machines, it was taken by the police and a message went out to the club implying the claimant was responsible for telling the police.
- This was not defamatory because a right-minded person would not think less of a person reporting a crime to the police.
- It must lower reputation generally, not just within a small group.
- Here the C had no remedy, he was ostracised by a group of people, but this did not matter.
Does the law of defamation protect the claimant from unkind statements about his appearance?
The torts of libel and slander supposedly aim to
protect the claimant’s reputation, however there have been limited sucessful claims.
Which authority provides that the law of defamation can protect the claimant from unkind statements about his appearance?
Berkoff v Burchill [1996]
What was stated in Berkoff v Burchill [1996] by LJ Neill as to why the claimant could be offered protection?
‘…It would in my view be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule…’ per Neill LJ.
Why did this case cross the line into defamation?
- Not just unattractive but repulsive and hideous.
Extremity means this case crossed the line into defamatory. - Someone in the public eye who makes their living from being in front of people, this could object him to ridicule.
- Their role in society may come into play.
- There was dissent, however.
- This isn’t about reputation, this is about looks, he believed this was pushing the limits of defamatory too far.
Defamation is to be distinguished from words of mere abuse, which authority provides this understanding?
Hilliard v Constable (1595)
What occured and what can be understood from Hilliard v Constable (1595)?
Someone called a magistrate a ‘bloodsucker’.
Things said in the heat of the moment may be words in anger, not defamation.
Words in anger may not have lasting impact on reputation.
If it can be understood by those hearing it that it was said in the heat of the moment, it is unlikely to de deemed defamation.
Which authority provides that internet blogposts /bulletin boards more likely to be read as mere abuse.
Smith v ADVFN Plc [2008].
What do we learn from Smith v ADVFN Plc [2008]?
In relation to blog posts and casual internet exchanges, comments on here are likely to be mere abuse not defamation.
People are to understand such comments are in anger, not to be taken to literally.
Must the publication must be defamatory as a whole or is it enough for a small element to suffice?
The publication must be defamatory as a whole
The document should be looked at in full and in context
Which authority provides that the publication must be defamatory as a whole?
Charleston v News Group Newspapers [1995]
What do we learn from Charleston v News Group Newspapers [1995]?
- This comes back to the right-minded person.
- The statement has to be defamatory as a whole.
- Little elements cannot be redacted to constitute to defamation.
- This is an early example of deep fake.
- This story ran in the newspaper with headlines.
- If you read the whole story, it became clear they had not consented to the images in use of this way and were not involved in making it.
- The claimants council argued it was defamatory because most would only read the headline without the rest of the story and thus the average right minded reader would gain the wrong picture without full understanding.
- This was rejected
What did Lord Bridge state in Charleston v News Group Newspapers [1995]?
‘I have no doubt that …many ‘News of the World’ readers who saw the offending publication would have looked at the headlines and photographs and nothing more. But if these readers, without taking the trouble to discover what the article was all about, carried away the impression that two well known actors in legitimate television were also involved in making pornographic films, they could hardly be described as ordinary, reasonable, fair-minded readers.’
What does this judgement provide?
- The right-minded reader is not an individual who just glances at the headline.
- This is a defendant friendly judgement.
- Essentially you can correct your statement later in the story or in the newspaper however this has been said to be playing with fire.
- The fully detailed truth must not be hidden, it must be accessible.
- In this case it was not difficult to find out the whole and truthful story.
Which authorities provide us with the characteristics of the ‘right minded reader/listener’?
Hartt v Newsgroup Newspaper Publishing (1989)
Stocker v Stocker [2019] UKSC
What does Hartt v Newsgroup Newspaper Publishing (1989) tell us regarding the right minded reader?
A right-minded reader possessed the characteristics of not being ‘naïve’ nor ‘unduly suspicious’, ‘being able to read between the lines’ but not being avid for scandal and would choose a non-defamatory meaning over a defamatory meaning.
The cousin of the reasonable person, it is for the court to decide what the right-minded reader or listener would understand in the circumstances.
Hartt discusses the right-minded reader/ listener.
What does Stocker v Stocker [2019] tell us regarding the right minded reader/ listener?
‘The fact that this was a Facebook post is critical. The advent of the 21s t century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.’
What does this judgement provide?
Often it is the case the particular words use give rise to a multiplicity of understandings and this is the concern and why the judges are to decide.
In this case, casual language was used, and the average Facebook reader would take he had put his hands around her neck and not tried to kill her.
In these modern cases, there is a recognition that media communications are sometimes more casual and shouldn’t always be taken literally. There is a shift in approach between social media and other sources of information.
What is an innuendo?
An innuendo consists of an implied attack on a person’s reputation
Defamation is not confined to direct attacks on the claimant’s reputation, what may also amount to a defamatory statement?
To protect the claimant’s reputation, defamation must also include implied or veiled attacks, which are generally known as “innuendo”
What is an innuendo?
An innuendo consists of an implied attack on a person’s reputation.
There are two types of innuendo, what are they?
There are two types of innuendo: true (or legal)
and false (or popular).
What is a true innuendo?
A true innuendo is one where the attack is truly hidden in the absence of special facts and circumstances, which the claimant must show are known by some of the people to whom the statement is published.
What is a false or popular innuendo?
A false or popular innuendo is one which a reasonable person guided by general knowledge would infer from the natural and ordinary meaning of the words.
State an example statement of a true innuendo -
Suppose that A publishes a statement that B works for “the family business”. By itself, this is not defamatory unless:
B’s father has been arrested for involvement with the Mafia. With this extra knowledge, we now know that A is implying that B works for the Mafia and is involved in organised crime.
This is defamatory as a true innuendo.
State an example statement of a false innuendo -
Suppose that A publishes a statement that B works for “the family business”. By itself, this is not defamatory unless:
B can show that the term “family business” is known to be a slang term for the Mafia.
This is unlikely here, but if B were successful, he would be relying on a false or popular innuendo.
A true innuendo was relied upon in which authority?
Tolley v JS Fry & Sons Ltd
A false innuendo was relied upon in which authority?
Lewis v Daily Telegraph Ltd
Outline the second substantive requirement to a sucessful defamation claim?
The statement must refer to the claimant.
THE STATEMENT MUST ‘REFER TO THE CLAIMANT <3
THE STATEMENT MUST ‘REFER TO THE CLAIMANT <3
Is this second substantive element usually contentious in a problem question?
For the most part, this is not an issue and is not contentious.
Usually there is less to analyse, and the statement does refer to the client.
For this requirement, is the D’s ignorance of the claimant’s existence and the D’s intentions relevant?
No, (although some defence may be available (see later)).
Which authority provides that a ‘fictional character’ in a story may refer to the claimant?
Hulton & Co v Jones [1910]
What occured and what was held in Hulton & Co v Jones [1910]?
E. Hulton & Co. (Defendant) wrote defamatory language using Plaintiff’s name. Defendant claimed it should not be held liable for libel because it used Defendant’s name as a fictitious name and had never even heard of Plaintiff.
- A story was published on a church warden liking casinos and gambling.
- A claim was brought by a Artemus Jones, who was a barrister in the local area as their friends thought this story was about them.
- The court found in favour of the claimant.
- The use of the name and that the reasonable readers believed the story was about them was enough to satisfy this.
- Unintentional was claimed however this was not relevant, this was strict liability.
- It is likely there was intention, and the courts knew this, even though the D claimed there was no intention.
Principle of strict liability here.
Which case extends the rule in Hulton & Co v Jones [1910] to non fictional characters in writing.
Newstead’s Case (1940).
What was the defamatory statement in this case?
“Harold Newstead, 30 year old Camberwell man convicted of bigamy.”
What was the issue and what was held?
- There were 2 x Harold Newsteads living in Camberwell!
- Principle of strict liability extended to non-fictional writing.
- One Harold had been convicted, the other a hairdresser, had not.
- He brought a defamation claim.
- By using his name, even though the D did not intend to refer to the second Harold, was defamation.
- The mistake of this kind is no defence.
In such circumstances, what should journalists/ writers do?
In such cases, journalists should check that are not incidentally defaming another person with the same name by checking the electoral register.
What are the effects of unintentional defamation? What can be done following unintentional defamation and under what provision can this be found?
S2-4 Defamation Act 1996:
Offer of amends
- D can make an ‘offer of amends’ by
publishing a correction and apology and paying compensation. If the claimant accepts the offer, the court action must cease. If the claimant does not accept the offer of amends, a D has a defence in court provided they can show either:
(I) they did not know that the statement referred to the claimant or would be understood as such; OR
(ii) they did not know that the statement was both false and defamatory.
(The defence will not apply if the claimant can show D was negligent as to these matters.)
There is some mitigation of the strict liability rule here for the above cases which we will come back to later in the flashcards.
Does the strict liability principle apply to photographs in regard to refering to the claimant?
Which case provides our answer?
No,
O’Shea v MGN [2001]
What was stated in O’Shea v MGN [2001]?
‘…It would impose an impossible burden on a publisher if he were required to check if the true picture of someone resembled someone else who because of the context of the picture was defamed. Whereas theoretically, the existence of the real Artemus Jones and the second Harold Newstead, a 30-year-old Camberwell man, could have been discovered, it would be impossible to discover whether a “look-a-like” or “spit and image” of the photograph of a real person existed.’ Per Morland J.
What occured in O’Shea v MGN [2001]?
- A claim brough by someone suing an advert in the Sunday mirror which advertised for a sex chat line and there was a picture on their which looked like her.
- Her friends and family did believe it to be her.
- The courts said the claim had to fail because there was no reference or correlation to her.
- This strict liability does not in this sense apply to images because it is about fairness and whilst it is in theory possible to check for the same name, it is not possible to check if there are people in the area who look similar to the picture they are using.
- Unfair burden on journalists.
- The strict liability rule did not apply here.
Considering the defamatory statement must refer to the claimant, can this apply to a class of people?
There is nothing in law preventing an action in defamation where the statement is made about a class of people - the only rule is that the statement must be capable of being understood as ‘referring to the claimant’.
Which authority provides that a defamatory statement can this apply to a class of people?
Knuppfer v London Express Newspapers [1944]
What occured and what was held in Knuppfer v London Express Newspapers [1944]?
- A group of people can this satisfy reference to the claimant.
- There is no rule that it can’t.
- In exceptional cases this is possible.
- A small group is potentially liable, a statement may may refer to every member in the group and this is enough.
- Defamation allegation against a small firm of solicitors for overcharging, if a small firm, each individual solicitor may claim as they are all referred too individually. This may work.
- Similarly one managing partner, they may claim, referring to them as an individual and the person responsible.
Very fact dependant but it is possible.
Can relate to a group, even if individuals are not named.
What were the specific case facts in Knuppfer v London Express Newspapers [1944]?
- In this case, an article had been published which criticised the Young Russian political party, Mlado Russ. - The party consisted of several thousand members, but they were mainly overseas and the British branch consisted of only 24 members.
- Knuppfer was one of these members. To establish that the libel referred directly to him, he alleged that because he was the head of the British branch, British readers would assume the remarks referred to him. - This argument was rejected by the House of Lords. It was held that the article was not capable of referring to Knuppfer.
- There had been no mention of the activities of the party in the UK and their Lordships found no evidence to infer that the article referred to Knuppfer.
- Lord Porter advised that in deciding whether the article was capable of referring to the claimant, the court should examine the size of the class, the generality of the charge and the extravagance of the accusation.
- The true test was whether a reasonable man could find that the article was capable of referring to the claimant.
- As a general rule, therefore, a statement aimed at a group will not be considered to refer to its individual members.
- On this basis, a politician could not sue a newspaper which printed “All politicians are liars” unless he or she could show something which referred specifically to him or her.
If the statement in question relates to a group of individuals, it will be difficult for the claimant to establish that the words refer to him or her directly. Unless the group in question has legal identity, for example is a company, and can therefore sue for loss of the group’s reputation, no action will stand unless what?
▪ The class is so small that the claimant can establish that the statement must apply to every member of the class; or
▪ The claimant can show that the statement refers to him or her directly.
Outline the third substantive requirement to a sucessful defamation claim?
The statement must be ‘published’.
THE STATEMENT MUST BE PUBLISHED <3
THE STATEMENT MUST BE PUBLISHED <3
What is Publication?
Communication to a third party.
Can publication be committed by omission? Which authority provides our answer?
Byrne v Deane
– shows potential for publication by omission
– a failure to remove defamatory post by a third party will amount to publication and thus defamation by omission.
If you say the statement to just the claimant, is this sufficient?
If you say it to just the claimant, this is not enough, it must reach the attention of a third party.
You cannot tell a dog, a baby for example, it must be someone who understands the essence of the defamatory statement.
Before the Defamation Act 2013, in regard to the single publication rule what occured?
Before the Defamation Act 2013, every time the defamatory statement was repeated
the tort was committed again and a fresh cause of action arose, which started limitation periods running again.
Which section of the defamation act 2013 altered this?
S8 of the Defamation Act 2013.
What did S8 of the Defamation Act 2013 establish?
S8 of the Defamation Act 2013 established a ‘single publication’ rule.
What is the ‘single publication’ rule?
If a person publishes a statement to the public and subsequently re-publishes that statement (or a statement which is substantially the same), time limits
for defamation proceedings start to run from the date of first publication, not from every instance that it is republished.
Outline fo runderstanding this rule in my own words -
Limitation period of one year for bringing a claim.
Used to be – every time an allegation was read again, this was a re publication and time would begin to run again, this is a big issue for social media and the internet.
Liability in this case could be infinite.
Someone may open the link on day 363 and start the limitation period again.
Now S8 prevents this, when access again or re publication, as long as they are the same are subject to the single publication rule.
There is no retriggering of time, the clock starts at the first publication.
This is defendant friendly.
This stops relentless litigation.
ii) Liability for Republication/Repetition
ii) Liability for Republication/Repetition
Who is responsible in law when a defamatory statement is repeated by an eavesdropper, or, say, a journalist takes notes and publishes an article repeating the defamation?
We often have a chain of republication, who is responsible?
There are a number of options.
Which authority provides that unauthorised repetition could be a novus actus, breaking the chain of causation.
As the repetition was foreseeable, D remained
liable?
Slipper v BBC [1991]
