Defamation Tort Law Flashcards
What kind of tort is defamation and what does it seek to protect
- Social tort
- Seeks to protect reputation from lies whilst balancing freedom of speech
Pre-Requisites of Defamation
1.) Libel or Slander
2.) Justiciability
3.) Serious Harm Threshold
4.) Does C have capacity to sue
Elements of a defamation claim
1.) A defamatory imputation was made
2.) The defamatory imputation identified C
3.) The defamatory statement was published
Tell me which case addresses the main distinction between slander and libel and what does it say about the distinction?
Libel is to the eye (but the main thing is that it is permanent) and slander is to the ear (transient)
Youssoupoff v MetroGoldwyn-Mayer
Pictures (1934)
Give some examples of libel (any statutes or any examples)
Anything written (books, letters, newspapers)
Anything which is broadcast (television, radio as per s.1 of Defamation Act 1952)
Cable Television s.28 of the Cable and Broadcasting Act 1984
Theatre productions (s.4(1) of the Theatres Act 1968)
Broadcasting Act 1990, s 166 - Words, pictures, visual images and gestures on broadcasting programme services treated as libel
Skywriting Gulf Oil (GB) Ltd v Page
Can you talk more about the permanence requirement as per libel?
Permanence does NOT EQUAL forever
MEANS communication EXISTS for longer than the time the original message is communicated.
Explain to me the different forms of communication?
Words are not necessary, it merely must be a type of permanent communication
Monsoon v Tussauds Ltd
Wax figure was libel
What about libel or slander in relation to online, any cases?
Posted online in discussion forum so libel
Smith v ADVFM
Examples of Slander
Clynes v O’Connor - shouting match between neighbours resulting in “wife beater”
Andre v Price -> Graham Norton Show (Defendant made comments suggesting certain defamatory remarks on live show in front of audience). A bit more controversial
Justiciability
The second pre-requisite of Defamation
Only if the damage to reputation mainly occurred in England and Wales, will it be tried (Section 9(2) Defamation Act 2013)
English court will not rule upon religious doctrinal issues or the regulation of religious groups
For example, if there were 100,000 comments in Australia compared to 5,000 in the UK then more likely to be pursued in Australia. There will however be a range of factors
Extent to which someone was targeted
Will they receive a fair trial in Australia
Serious Harm Threshold pre 2013
3rd pre-requisite of defamation
Jameel test
“Real and substantial tort” (Jameel v Dow Jones)
- This case ruled there was no substantial tort threshold met here but also established the case for a Real and substantial tort
- Only 5 people read the articles - but this is not a strict rule to follow
- It was also removed swiftly (Though there is no rule that says a defamation case can not go through just because of few limited readers)
- If one person thinks very badly due to the writer then potentially permissible)
- Where imputation is trivial - calling someone a veggie (Ecclestone v Telegraph Media) no substantial tort
- Where no substantive vindication or benefit would be achieved by a defamation suit
Post 2013 Serious Harm Threshold
3rd of pre-requisite of defamation
Post 2013 s(1) Defamation act - “has caused or is likely to cause serious harm”
Not only do the words have to be inherently injurious but also serious harm
Lachaux v Independent Print Ltd - Tells us its a higher threshold but you can consider the number that of readers for imputation
So both libel and slander no longer actionable -> need to prove harm
Blake v Fox [2024]
Established the ““Impact of publication, and not just meaning of the words”
This is a question of fact “established by evidence” or evidential inference
Harm = “effect of a publication in the mind of a third-party reader” This is how in fact you prove serious harm.
Harder to satisfy. So, the process of proving serious harm is evidential, but sometimes this evidence may be inferential.
Cooke v MGN -> this particular claim did not satisfy serious harm test, publisher had already published an apology about the previous publication which was accessible
Does C have a capacity to sue?
Individuals (as a natural person) can sue -> Legal persons can sue
Companies, partnerships and incorporated entities have the capacity to sue for defamation
EEPTU v Times Newspapers [1980] -> However, unincorporated trade or professional association which consists of members lacks standing to sue
Derbyshire CC v Times Newspapers [1993] -> Government (local or public authority) cannot sue in defamation but can be sued against
Mclaughlin v Lambeth -> However, individuals that represent the government can sue for defamation in a personal capacity (not as member of government). They cannot do so in order to circumvent the bar on governments
First element of Defamation structure
There was a defamatory imputation
1.) What does the imputation mean?
2.) Is the meaning defamatory?
Subsection 1 of the first element of Defamation question
What does the imputation mean?
- Direct and literal meaning
- False Innuendo - Bestobell Paints Ltd v Bigg
- Single Meaning Rule - Butt v Sec of State
- Legal Innuendo - Cassidy v Daily Mirror Newspapers
What happens when the court finds a statement with more than one meaning?
The court commits itself with the view that every statement has a single meaning on a particular statement. Depending on the reasonable reader (competent reader who understands English)
Bestobell Paints Ltd v Bigg
True legal innuendos
Professional decorators who painted house -> paint decolourised. Decorators put a sign up saying C’s paint was used to paint the house (which looked dodgy). Although not directly saying it was the claimants fault it implies
Cassidy v Daily Mirror Newspapers
False Innuendos
Inside joke (arises when a statement does not appear to be defamatory but because certain insiders will know specific things it will make it defamatory).
Mr Corrigan told the journalist he was engaged to Ms X and allowed this journalist to take a photograph of them together. Announcement published in newspaper saying they were engaged.
Mr Corrigan in reality, however, was already married. Mrs Cassidy was the wife.
Although Mrs Cassidy’s name was not mentioned, some people who knew Mrs Cassidy and how she would have been living with Mr Corrigan making Mrs Cassidy look immoral for living with Mr Corrigan.
Subsection 2 of the first element of the defamation act
Is the meaning defamatory?
Sim v Stretch [1396] -> Exhibits a tendency to lower the plaintiff in the estimation of right-thinking members of society
The test does not talk about having to prove an actual change
This test does not bar anyone from suing if they have a bad reputation already
Common examples or descriptions of subsection 2 of the first element of the defamation act
Exposes claimant to hatred, ridicule or contempt (Berkoff v Burchill)
Claimant shunned scorned or avoided (Youssoupoff v MGM)
What is meant by a right-thinking member of society?
The context of the society matters a lot, in terms of what is a right thinking member of society. UK right thinking members may think differently to those in Singapore. (The general view of society)
The right thinking member of society is context - sensitive
A reader on Facebook is different to a newspaper reader
When you use “” to defame someone a reader would not take it as seriously. Also the distance between the bane and the antidote (so where an allegation was made and it was not made clear where the full explanation of the story would be). The bane and antidote have to be sufficiently close together.
What is the exception to the rule that right thinking members of society must represent a general public body
The only scenario where the views of a limited subsection of the public may suffice concern true legal innuendos. Only time a small proportion of the society matters
Vince v Associated Newspapers
In relation to the first element to a defamation claim. (Defamatory Imputation). Tells us how a right thinking member would read
Vince v Associated
Newspapers. Sued newspaper over allegations of sex-based harassment.
A reasonable reader will read things in context and as a whole.
Thumbnail and headline not suffice if the actual content is not defamatory and explains the actual whole article.
