Human Rights- Booklet 1- Defamation Flashcards
Defamation
Tort, claimant seeking compensation for damage to their reputation
Competing rights: Article 8 + 10
Defamation divided into 2 parts:
1) Libel= def. appears in a permanent form
2) Slander= non-permanent (unrecorded speech)
e.g. Monroe v Hopkins (Monroe accused of vandalising war memorial)
Element 1
Must refer to the claimant
[I] Name them
[II] Can refer to claimant if they share the same name as someone else (even fictional person)
Hulton v Jones = Artemus Jones, barrister, adultery
Newstead v London Express = True statement published, someone with same name sued cause it made them look like they were guilty of bigamy
[III] Refer through context
Hayward v Thompson= Hayward not named but a reasonable person would thin article was about him through context
[IV] Picture
Dwek v Macmillan Publishers = depicted him next to a prostitute
[V] Can be made about a group of people (but has to be specialised enough)
Knupffer v London Express = 24 members of ‘Young Russians’ not small enough
Riches and others = successful- 12 detectives
[VI] Only claimant can bring an action, can’t sue on behalf of a dead person
Element 2
The statement must be defamatory
Original definition: Sim v Stretch ‘lower plaintiff in estimation of right thinking members of society’
S.1 of Defamation Act 2013 = serious damage to the claimant’s reputation
Lachaux v Independent Print - debate over definition – serious harm must be determined by looking at impact (or likely impact) of the statement and not just implied from the meaning of words
McBride and Bagshaw - def statement = make people think less of claimant, people think lack ability to do their job effectively, causing people to avoid claimant, treat person as figure of fun
Jason Donovan v the Face = sued cause they said he was gay when he portrayed himself as straight- didn’t want to seen to be deceiving the public
Berkoff v Burchill = journalist described claimant as ‘hideous-looking’
Stocker v Stocker = Sup Court noted importance of context and said social media posts people don’t ‘pause and reflect’ (tried to strangle me one)
[I] ‘Right thinking members of society’ (not friends/family)
Bryne v Dean = notice suggesting Bryne informed police of illegal gamblng machines not derog. cause right thinking members of society would view that as +ve
[II] Statement that damages their reputation can be saved by further explanation
Charleston v News Group Newspapers = not suc- sexual intercourse pic- explained it was a fake in first para
[III] Innuendos
May seem innocuous but will be defamatory in particular situations / people with special knowledge
Lord Gowrie suing the Sun for saying he had ‘expensive habits’ and would ‘snort’ at the idea he’d been born ‘with a silver spoon around his neck’
Innuendo can also be defamatory, even if it was meant innocently.
Tolley v Fry- amateur golfer whose pic had been used for an advert for Fry chocolate, but implied he’d received money from the advert which went against his amateur status
Cassidy v Daily Mirror
Element 3
Has the statement been published?
Publishing = information has passed from the defendant to a person other than the claimant or the defendant’s spouse
Repetition Rule
Every repetition of a libel is a fresh publication and creates a fresh cause of action.
s8 of Defamation Act 2013 removed the repetition rule for the same publisher. (because every time an article was accessed in an internet archive it created a new claim)
Element 4 - defences to Defamation
Defamation Act 2013 lists main defences:
1) Truth (s2)
2) Honest Opinion (s3)
3) Public Interest (s4)
4) Absolute Privilege
5) Qualified Privilege
6) Offer of Amends
Truth (defence)
s2
Defence successfully argued in Stocker v Stocker and old defence successful in Taylforth v News Group Newspapers (car-oral sex)
Must be ‘substantially true’ - small inaccuracies won’t prevent the defence from applying
Act also says when a statement says two or more thinigs, and one can’t be proven to be substantially true, the defence can still apply if the things that were shown not to be substantially true don’t seriously harm the claimant’s reputation when compared to the other true statement.
E.g. Gekas v Scottish Television (claimed Gekas killed Jews in WWII, allegation he ‘personally finished off’ Jews who had been thrown in burial pits. Although this wasn’t substantially true, the role he played in killing Jews was
Honest Opinion (defence)
s3
Gives protection to statements of opinion, whether they’re about important matters like behaviour of governments or more trivial matters
Must be 3 conditions satisfied:
1) The statement was a statement of opinion
2) The statement indicated whether in general or specific terms, the basis of the opinion
3) An honest person could have held the opinion on the basis of:
– Any fact which existed at the time the statement was published
– Anything claimed to be a fact in a privileged statement that was published before the statement complained of (the defam. statement)
1) The statement was a statement of opinion
Galloway v Telegraph Group Ltd = Telegraph claimed there was ‘damming new evidence’ that MP Galloway received money from Saffam Hussein’s regime, this was a statement of fact, not opinion
2) The statement indicated whether in general or specific terms, the basis of the opinion
Rule comes from Joseph v Spiller: the statement must indicate explicitly or implicitly, at least in general terms, the facts on which it is based
It must be clear to a reader what facts have led the defendant to make the comment. No need to explain the facts in great detail
3) An honest person could hold the opinion on existing facts or privileged material
Objective test of whether an honest person could have formed the opinion that was expressed, based on the facts that existed or privileged material on the relevant issue
Must be a reasonable opinion
s.3(5) states the defence won’t apply where the claimant can show the defendant didn’t honestly hold the opinion they expressed
s.3(7) - privileged statement = statement which would be covered by any of four defences:
[I] Publication on a matter of public interest
[II] Peer-reviewed statement in a scientific or academic journal
[III] Absolute privilege applying to a report of court proceeding
[IV] Qualified privilege
Case examples:
David Soul v Matthew Wright = play - ‘worst West End Show’ - hadn’t seen it - £20,000
Gordon Ramsey v Evening Standard - claimed some scenes faked to give misleading impression of business - not true - £75,000
Public interest (defence)
S.4
Doesn’t define what’s a matter of ‘public interest’
Applies to statement of opinion / fact where:
- Statement was a matter of public interest
(s.4(1)(a)
- Defendant reasonably believed its publication was in public interest (s.4)(1)(b)
Courts must take into account ‘all the circumstances of the case’
Must make allowances for ‘editorial judgment’
The Reynolds defence (old defence) first set out in Reynolds v Times
Reynolds case set out 10 factors courts need to take into account
However, Serafin v Malkiewicz highlights importance of two-stage approach of s.4(1)(a)(b) and how the Reynolds factors shouldn’t be treated as a checklist
Absolute privilege
Some statements, although defamatory, can be said because of the situation they were in
[I] Parliamentary proceedings (e.g. Ryan Giggs) (doesn’t count on tv interview)
[II] Court proceedings (as long as it’s a fair and accurate report)
[III] Communication between solicitor and client
[IV] Statements made by one spouse to another
Qualified privilege
Covers defamatory statements which are also said in certain situations. Broader than absolute privilege. Only covers statements without malice.
[I] Fair + accurate reports of proceedings of law making bodies
[II] Scientific + academic material - s.6 - NMT v Wilmshurst - British cardiac surgeon sued by American manufacturer of medical devices are he raised concerns about the way they conducted trials
Must be peer-reviewed
Offer of amends
Defamation Act 1996 s.2 – “written correction or apology and a payment of an agreed compensation”
There’s a procedure:
- Offer must be made before a defence is lodged
- Claimant may accept offer, then proceedings stop
- Parties can agree on terms the court can enforce
- If offer not accepted, defendant can chose a defence
Defence not available is def. intentional
Mode of trial + remedies:
1) s.11 of Defamation Act 2013 - tried without jury unless court orders otherwise, judge also decides damages. Claims must be brought within 1 year of publication.
2 main remedies:
[I] Compensation
[II] Injunction
2) s.12 of Defamation Act 2013 - gives court power to order def. to publish summary of judgment if c. wins
3) s.13 of Defamation Act 2013 - power to court to order operator of a website def. statements posted to remove it or order anyone who isn’t the author/editor/publisher not to distribute statement
