Making A Claim Flashcards
What does defamation consist of?
The torts of libel (permanent) and slander (temporary)
What is the main problem with defamation claims?
competing article 8 and 10 ECHR rights
What is needed to establish a claim?
- Standing to sue
- A defamatory statement
- The statement must refer to C
- The statement must have caused ‘serious harm’
- The statement has been published
Who has standing to sue?
Any recognised person or entity (including companies)
Who does not have standing to sue?
Public authorities
Political parties
The deceased
Those not domiciled in the UK unless England is the most appropriate place to hear the claim (s9(2))
South Hetton Coal Company v North Eastern News Association Ltd
Companies can bring a defamation claim if it reflects on their management of trade or business
Derbyshire v Times Newspapers
Public authorities do not have standing to sue as this would fetter freedom of speech. This was later applied to political parties
(s1(1) Law Reform (Miscellaneous Provisions Act) 1934
The deceased don’t have standing
What are the components that make a statement defamatory?
- The statement must be untrue and not an opinion
- The statement has lowered the estimations of C in right thinking members of society
Berkoff v Burchill
A statement that causes mere anger or upset is not sufficient
Ugly is subjective
ALSO, judges will look at context to see if a statement is defamatory.
C argued this was defamatory considering the context of his job being on the theatre
Lewis v Daily Telegraph
Right thinking member of society = a reasonable person
Also, example of false innuendo:
D reported that C’s company was being investigated by the fraud squad. They were absolved from any wrong doing and then sues D as people would ‘read between he lines’ and think they had been acting dishonestly.
Slim v Stretch
The statement has lowered the estimations of C in ‘right thinking members of society’ (reputation damage)
Arab News Network v Jihad Al Khazen
Currently, the statement must be damaging in the eyes of people generally. In this case it was argued a statement should be considered defamatory if it damages someone’s reputation within their race/religion as society is more diverse
Charleston v News Group Newspapers
The article must be read as a whole - D had mock celebrity photos (the article stated this). Claim failed.
CA: this isn’t an accurate reflection of how people read news papers
What is meant by ‘innuendo’?
words with a hidden meaning, context may indicate the statement is defamatory
What is the test for establishing innuendo?
Objective test: what would right-thinking people knowing the additional information make of the statement?
What are the two types of innuendo?
False
True
What is false innuendo?
Where the reader needs to simply read between the lines for it to be defamatory
What is true innuendo?
the words appear to be innocent but are defamatory to people who have extra information.
Cassidy v Daily Mirror Newspaper
example of true innuendo:
C was married to X. The news paper photographed X with another lady and claimed they were engaged. C argued this was defamatory because the publication damaged her reputation as people thought her husband with living with her immorally.
Hulton v Jones
D need not be aware the statement referred to C
a fictional character in an article shared the name with a judge. The judge successfully sued for defamatory
Newstead v London Express
D will still be liable even if they defame C by mistake
newspaper reported details bigotry of ‘Harold Newstead, 30 yr old Camberwell man.’ C was of the exact description and sued for libel
Test for determining if the statement referred to C (+case):
- Objective test – would a reasonable person understand the statement is referring to C? (Morgan v Oldhams Press Ltd)
doesn’t need to be applied where a name, nickname, job title is given (e.g. home secretary)
Morgan v Oldhams Press Ltd
Objective test – would a reasonable person understand the statement is referring to C?
doesn’t need to be applied where a name, nickname, job title is given (e.g. home secretary)
What will not ‘refer to’ C?
Photos
O’Shea v MGN
D posted an advert for an internet dating service and the model looked like C. This was not defamatory, it was distinguished from Hulton because it would pose an impossible burden on the publisher if they had to check to ensure a photo didn’t look like someone else
Knuppfer v London Express Newspapers
There is no liability for defamation if the statement refers to a group of people from a certain class UNLESS the class is small enough the statement applies to everyone
s1 defamation act 2013
The statement must have caused serious harm to C, profit is only serious harm if it results in serious financial loss
What is meant by ‘the statement must be published’?
it must be communicated to a third party, a conversation or letter between D and C is not defamatory
Methods of publishing and cases:
Websites (Johnson v Steele);
Tweets (Monroe v Hopkins)
Blogs (Cruddas v Adams)
Theaker v Richardson
Objective test: is it reasonably foreseeable that a third party would see/hear the statement?
Defamatory letter sent to C, her husband opened it. Held it was reasonably foreseeable someone else would open it
Godfrey v Demon internet service
- An internet service provider becomes a publisher if they don’t remove content once they have been notified it is potentially defamatory
A message from an unknown source was forged to appear to have been sent by C. C asked D to remove it and they did not. Liable for defamation
NB: s5 2013 act - defence for website operators
