Defamation part 2 (defences) Flashcards
What are the six potential defences available for defamation?
- Truth (s.2 DA 2013)
- Honest opinion (s.3 DA 2013)
- Privilege (some of which is found in s.4 DA 2013)
- Defence for website operators (s.5 DA 2013)
- Innocent Dissemination (s.1 DA 1996)
- Offer of Amends/ Unintentional Defamation (s.1 DA 1996).
What is the first defence?
The defence of truth.
Under what section of which act is truth considered a defence to a defamation claim?
Truth - S2 Defamation Act 2013.
What does S2 Defamation Act 2013 state?
‘It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true’.
Within the defence of truth, what does the law assume?
The law assumes defamatory statements are untrue, it is for the defendant to show they are in fact true.
If a libel/ slander can be shown to be true by the defendant what occurs?
The defence of truth negates the tort of defamatiion.
The defence of truth in some ways is generous toward the defendant, in what way is this true?
The statement only has to be substantially true, not every element need be true to access the defence.
Where a statement is ambiguous, what must the defendant do?
Where a statement is ambiguous, D must specify which meaning they are going to argue is true.
In which case previosuly considered did the D have to specify which meaning they are going to argue is true in the statement the made?
Stocker v Stocker [2019] UKSC 17.
in Stocker v Stocker [2019] UKSC 17, what was the ambiguity?
Did ‘tried to strangle’ mean placing hands around D’s neck OR trying to kill D?
The D said her husband strangled her – here there are multiple meanings, placed hands, tried to kill etc, she chose to prove the less defamatory statement of him placing his hands around her neck in order to prove truth, she was able to do this.
Which authority provides that the statement must merely be ‘substantially true’?
Alexander v North-eastern Railway Co (1865).
What was held in Alexander v North-eastern Railway Co (1865)?
Inaccuracies as to penalty did not prevent plea of truth succeeding.
Essentially, if some elements are found to be true however an element of the statement is innacurate, the courts will tolerate some inaccuracies and allow the defence to succeed.
Is there a partial defence available for truth?
If as if often the case that you have a defamatory publication which says a number of things about the C, if the D proves some are true, they may have a partial defence.
Where there is a partial defence to truth, what occurs?
If you can prove some of the elements are true, truth can be used as a partial defence.
Damages in this way can be reduced.
In which other manner can the defence of truth be considered generous?
Where D’s statement conveys two or more imputations, partial truth can result in a complete defence where the elements which are not shown to be substantially true and not the true cause of damage to the claimants reputation.
Under which section is this governed?
S2(3) Defamation Act 2013.
What does S2(3) Defamation Act 2013 state?
S2(3): ‘If one or more of the imputations is not shown to be substantially true, the defence does not fail if…the imputations which are not shown to be substantially true do not seriously harm the claimant ’s reputation.’
In these circumstances, what will occur?
Essentially, if some things are true, and some are not, if the elements which are untrue are not damaging in a defamatory sense, this is not a partial defence, this again is a complete defence.
Which authority provides for the principle above where statements containing multiple defamatory imputations may still result in a complete defence?
Irving v Penguin Books [2001] EWCA Civ 1197.
What are the facts in Irving v Penguin Books [2001] EWCA Civ 1197?
D’s book alleged C was antisemitic, a Nazi sympathiser and had appeared at a conference with right wing terrorists. All these allegations were proved true excepting the last one – did the truth defence succeed?
What was held in Irving v Penguin Books [2001] EWCA Civ 1197?
Partial truth operating as a complete defence.
What was left that was untrue did not impact reputation, the untrue elements were not defamatory.
The reputation was trashed by the truth, not the untrue elements.
Full defence of truth was available.
In which third manner can the defence of truth be considered generous?
The ‘truth’ defence is not defeated by malice.
What is understood by The ‘truth’ defence is not defeated by malice?
The ‘truth’ of the statement is what matters, not the motive for saying it!
Intention is not relevant; you can rely on truth even if you are intending to cause harm or have an evil motive.
What is the exception to the ‘truth’ defence is not being defeated by malice?
There is a general rule that Ds can use proof of C’s criminal conviction of an offence as conclusive proof of that C committed that of fence for the purposes of showing ‘truth’ (Civil Evidence Act 1968)
However, where C’s conviction is ‘spent’, D’s defence of truth fails if C can show malice was present!
In these circumstances, why is this the case?
(S8(5) Rehabilitation of Offenders Act 1974)
This is because of rehabilitation laws which are in place would become undermined.
Above the defence of truth appears liberal, below, is ways in which it is strict, which rule depicts this strictness?
The ‘repetition rule’
What is understood by the ‘repetition rule’?
The defence of trust can be strict – if you are repeating the statement and trying to argue truth and your argument is ‘I was told this statement was true’, this will not suffice as a defence.
This is to make people more responsible for what they spread; you cannot throw off liability.
What is the position where D has tried to distance themselves from the sting of the defamatory statement?
E.g. ‘X told me that Y is a convicted paedophile’, or ‘allegedly, X is a convicted paedophile’?
Can D prove truth by showing that X did say that?
No, a defence of truth would require that the primary allegation (paedophilia) should be proved true – this was on the basis that repeating someone’s defamatory statement was ‘just as bad’ as making the statement directly.
Which authority provides this principle?
Lewis v Daily Telegraph [1964] AC 234
What is the second defence?
Honest Opinion.
Under what section of what act does Honest Opinion fall?
S3 Defamation Act 2013.
S3(1) states it is a defence to an action for defamation for D to show 3 things, what are they?
- A statement of opinion (not fact).
- That the basis of the opinion was indicated in the statement.
- That the statement was made honestly.
Can you use the defence of honest opinion and truth under one claim?
You can’t use both. They are mutually exclusive.
What does S3(2) provide in order to sucessfully use the defence of honest opinion?
The statement must be a statement of opinion, not an assertion of fact.
The fact/opinion distinction is crucial in determining whether ‘truth’ or ‘honest opinion’ is the more appropriate defence,
provide an example of a statement of truth and one of opinion.
Cubby was dismissed from her last job on the grounds of incompetence (fact)
Cubby is not very good at her job (opinion).
Which authority demonstrates a statement of opinion not an assertion of fact - S3(2).
British Chiropractors Association v Singh [2010] EWCA Civ 350.
What was held in British Chiropractors Association v Singh [2010]?
Note the Court of Appeal’s reasoning in concluding that these statements amounted to opinion rather than assertions of fact:
The suggestion that ‘there is not a jot of evidence’ constituted opinion rather than an assertion of fact – what amounts to ‘evidence’ was subjective, a value judgement, and a matter on which people might differ.
What occured in British Chiropractors Association v Singh [2010] EWCA Civ 350?
D had published a comment in The Guardian stating:
“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence.”
How are allegations of dishonesty are likely to be treated?
Allegations of dishonesty are likely to be treated as assertions of fact.
Note also that allegations of dishonesty, fraud or a lack of integrity have been treated as more likely to be assertions of fact, which authority demonstrates this?
Wasserman v Freilich [2016] EWHC 312
What was stated in Fish v GMC [2012] regarding allegations of dishonesty and why they are likely to be treated as fact?
… ‘An allegation of dishonesty against a professional person is one of the allegations that he or she fears most. It is often easily made, sometimes not easily defended and, if it sticks, can be career-threatening or even career- ending.’
What does S3(3) provide in order to sucessfully use the defence of honest opinion?
S3(3) They must indicate the basis of the opinion.
This requirement for a basis existed at common law also, which old case sets the old principle for indicating the basis of an opinion?
It was known as the requirement of substratum of fact and those underlying facts had to be proven true.
- Kemsley v Foot 1952.
Which contemporary case provides the modern understanding?
Spiller v Joseph 2010.
What was stated in Spiller v Joseph 2010?
‘The comment must explicitly or implicitly indicate at least in general terms the fact on which it is based.
Where is ‘the comment must explicitly or implicitly indicate at least in general terms the fact on which it is based’ now reflected?
Now reflected in S3(3) – the D must indicate in general or specific terms, the basis of the opinion.
Was there a relaxation of the rule between Kemsley v Foot 1952 and Spiller v Joseph 2010?
Relaxation of the rules here, you don’t need to prove that the basis is true, just what the basis the opinion is broadly based on.
What does S3(4) provide in order to sucessfully use the defence of honest opinion?
Honesty S3(4).
In what circumstances can the defence of honest opinion be defeated?
The defence is defeated if C can show D did not honestly hold the opinion expressed in their statement.
What approach does S3(4) take in regard to honesty?
S3(4) – the opinion will be treated as honest if an honest person could have held the opinion on the basis of facts which existed at the time of the statement.
If D is expressing his genuine opinion, it is irrelevant that a reasonable man would not hold such an opinion, which authority demonstrates this?
Telnikoff v Mateusevitch [1991].
What was stated in Telnikoff v Mateusevitch [1991]?
D’s opinion is presumed to be honestly held if it can be said that “any fair [person], however prejudiced, however exaggerated or obstinate [their] views,” might have said this.’
What can we understand from this statement provided in Telnikoff v Mateusevitch [1991]?
Even the unreasonable, biased person can plead this defence!
Is malice relevent to the defence of honest opinion?
If malice and didn’t genuinely hold these views, the defence will not apply.
If they are only saying it to damage the claimant, not because it is what they truly believe, the defence fails.
What is the third defence to a defamation claim?
Absolute privilege
What is understood by absolute privilege?
In some situations, communication is so important that its flow must not be impeded by fear of litigation. Thus in Parliaments and the courts speech is absolutely privileged.
Is absolute privlidge defeated by malice?
Absolute privilege is not defeated by malice.
If you could show your information falls within absolute privilege it does not matter if you had malice.
What does absolute privlidge create and when does it largely occur?
Absolute privilege creates a safe space for certain communications to occur, they relate largely to the running of the state.
What are the three situations of absolute privilege?
- Article 9, Bill of Rights 1688 applies absolute privilege to Parliamentary proceedings such as parliamentary debates.
- Judicial proceedings (courts/tribunals) solicitors judges barristers parties etc.
- Communications in the course of official business - communication between public officials such as officers in departments within the government.
What is the fourth defence to a defamation claim?
Qualified Privilege
How did qualified privilege used to exist in comparison to how it exists now?
Qualified privilege exists in the defamation act, it began at common law which covered 1-1 communications, but then common law adapted to apply to broader communications to the world at large.
Which common law authority used to provide our understanding for when qualified privilege would arise?
Adam v Ward [1917]
What was stated regarding qualified privlidge in Adam v Ward [1917]?
Qualified privilege arises on ‘…an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.’
This case is an example of the original defence at common law, at common law what situations did QP concern?
It covers situations here where the defendant felt like they were under some kind of legal, moral or social duty to make the statement which in the end turned out to be false.
What was understood by ‘this reciprocity is essential’?
Typically looking for a reciprocity – communicating to the appropriate body or person.
Wouldn’t be covered if you went to Facebook as opposed to the police for example.
Is it therefore, not just about the content but who you are dictating or communicating the content to.
What were examples of this form of qualified privilege?
Examples of this form of qualified privilege: covers contexts such as writing employment references,
reporting suspicions of criminal activity to the police,
reporting other concerns to relevant authorities.
Is qualified privlidge defeated by malice?
Qualified privilege is defeated by proof that the publication was actuated by malice
- therefore motive is important.
Which case provides that motive is important in regard to QP?
Horrocks v Lowe [1975]
What was stated in Horrocks v Lowe [1975] regarding what sort of malice is required in order for the defence to be defeated by malice?
Despite ‘gross and unreasoning prejudice,’ the D was still able to plead qualified privilege – spite or ill-will or improper motive was needed for malice.
Spite or improper motive will deprive the defendant of this defence.
What is the current statutory form of QP?
Statutory forms of QP:
a) publications on a matter of public interest (S4).
It is a defence to show what under the statutory form of QP?
It is a defence to show:
a) a statement on a matter of public interest;
and
b) that D reasonably believed publication was in the public interest.
What did S4 do to the defence of PQ?
This defence expanded.
This expansion – S4 now, public interest.
A defence to show the statement was of public interest now.
S4 is based on which common law authority?
Reynolds v Times Newspapers [1999].
What is the defence also known as now as a result?
S4 is based on the common law ‘Reynolds defence’.
What did the case of Reynolds v Times Newspapers [1999] do?
Reynolds v Times Newspapers [1999]
– A form of QP was extended to publications ‘to the world at large’ for the first time (e.g. newspapers).
What is the key issue in regard to S4 QP?
Key issue – does the public have a right to know, this tells us if this defence is applicable.
Lord Nicholls set out a list of factors relevant to this form of QP, outline a couple of factors which may be taken into consideration.
- The seriousness of the allegation.
The more serious the charge, the more
the public is misinformed and the
individual harmed, if the allegation is
not true. - The tone of the article.
A newspaper can raise queries or call for an
investigation. It need not adopt
allegations as statements of fact. - The nature of the information, and
the extent to which the subject
matter is a matter of public concern - The circumstances of the publication,
including the timing. - The steps taken to verify the
information. - Whether the article contained the gist
of the claimant’s side of the story.
Which authority demonstrates Reynolds defence/S4 cases in action?
Jameel v Wall Street Journal [2006]
What did Jameel v Wall Street Journal [2006] concern?
Newspaper stories implying that C ’s
bank accounts being monitored because of terrorist connections.
The Reynolds defence could be reduced to two questions in this case, what were they?
i) Was the subject matter one of public interest?
ii) Was responsible journalism practiced?
What is another authority demonstrating Reynolds defence/S4 cases in action?
Grobbelaar v News Group Newspapers [2001].
What did Grobbelaar v News Group Newspapers [2001] concern?
– Allegations that Liverpool goalie, Bruce Grobbelaar had accepted bribes for match fixing – published prior to full investigation
Did the QP/ Reynolds defence suceed in Grobbelaar v News Group Newspapers?
QP defence failed, primarily due to the ‘tone’ of the article.
Bad tone, reported in several days, the way the story was framed encouraged the assumption of guilt without evidence, very embarrassing for the family, QP was not available.
This was not responsible journalism, so they test failed.
What is another authority demonstrating Reynolds defence/S4 cases in action?
Galloway v Telegraph Group Ltd [2006]
What did Galloway v Telegraph Group Ltd [2006] concern?
Allegation that George Galloway had links with Saddam Hussein’s regime in Iraq and had diverted money from a charitable fund to his own accounts.
Did the QP/ Reynolds defence suceed in Galloway v Telegraph Group Ltd/
QP also failed here,
Early stage of investigations, publishers ran with a story anyways,
Any truth was not yet known.
No attempt to disclose allegations to D to allow for a response – straight to publication.
This is often key.
Few things are often so urgent you cannot ask the D their side of the story.
No responsible journalism here, the test failed again.
The tone was also strategic and embellished the story further – used poor photos.
This was outside the public interest at this time.
What is another authority demonstrating Reynolds defence/S4 cases in action in regard to books as opposed to newspapers?
Charman v Orion Publishing [2007]
Could author of the book, Bent Coppers argue this defence?
The COA said in principle you can use this defence; it is not just for newspapers, but it would be more difficult to rely upon it successfully.
If you are publishing a book, the nature of it means you have a longer timeline to check your facts and moderate your statements.
The newspaper nature is entirely different.
May need to use another defence, truth or honest opinion.
What is the fifth defence to a defamation claim?
Innocent Dissemination.
Under what section of which act is Innocent Dissemination found?
S1 Defamation Act 1996.
What is understood by the defence of Innocent Dissemination?
If you didn’t create it and you just passed it on, this can be a defence, we covered this earlier.
Which authority shows a failure of the defence of Innocent Dissemination?
Godfrey v Demon Internet [1999]
Why could the D in Godfrey v Demon Internet [1999] not rely on innocent dissemination?
The Ds could not rely on innocent
dissemination if they had knowledge of the defamatory post and had failed to remove it.
What is the sixth defence to a defamation claim?
Offer of Amends.
Under what section of which act is Offer of Amends as a defence found?
S2-4 Defamation Act 1996.
What is understood by the defence of Offer of Amends?
D can make an ‘offer of amends’ – made up of an apology, correction and compensation.
IF accepted by C, no further action lies.
What does an offer of amends involve?
It involved the D making a mini settlement offer essentially.
The idea being they are apologetic, remorseful, and are ready to make amends.
Offer to publish a correction and offer some compensation.
If C accepts, the defamation litigation comes to an end.
What occurs if C DOES NOT accept the offer?
If C DOES NOT accept the offer, the offer ‘unlocks’ a defence of ‘unintentional defamation’ provided D can show:
(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. This ‘defence’ will not apply if the claimant can show D was negligent as to these matters.
What is important to remember in thsi defence and why?
It is a stand-alone defence, if you rely on it, this has to be their only defence.
You can’t use truth and then fall on this.
Reasoning – fundamentally incompatible with the other defences, it wouldn’t be logical.
There is therefore a risk in using this defence because it rules out others.
