Making A Claim

Question 1

What does defamation consist of?

Answer 1

The torts of libel (permanent) and slander (temporary)

Question 2

What is the main problem with defamation claims?

Answer 2

competing article 8 and 10 ECHR rights

Question 3

What is needed to establish a claim?

Answer 3

1. Standing to sue
2. A defamatory statement
3. The statement must refer to C
4. The statement must have caused ‘serious harm’
5. The statement has been published

Question 4

Who has standing to sue?

Answer 4

Any recognised person or entity (including companies)

Question 5

Who does not have standing to sue?

Answer 5

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))

Question 6

South Hetton Coal Company v North Eastern News Association Ltd

Answer 6

Companies can bring a defamation claim if it reflects on their management of trade or business

Question 7

Derbyshire v Times Newspapers

Answer 7

Public authorities do not have standing to sue as this would fetter freedom of speech. This was later applied to political parties

Question 8

(s1(1) Law Reform (Miscellaneous Provisions Act) 1934

Answer 8

The deceased don’t have standing

Question 9

What are the components that make a statement defamatory?

Answer 9

• The statement must be untrue and not an opinion

- The statement has lowered the estimations of C in right thinking members of society

Question 10

Berkoff v Burchill

Answer 10

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

Question 11

Lewis v Daily Telegraph

Answer 11

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.

Question 12

Slim v Stretch

Answer 12

The statement has lowered the estimations of C in ‘right thinking members of society’ (reputation damage)

Question 13

Arab News Network v Jihad Al Khazen

Answer 13

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

Question 14

Charleston v News Group Newspapers

Answer 14

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

Question 15

What is meant by ‘innuendo’?

Answer 15

words with a hidden meaning, context may indicate the statement is defamatory

Question 16

What is the test for establishing innuendo?

Answer 16

Objective test: what would right-thinking people knowing the additional information make of the statement?

Question 17

What are the two types of innuendo?

Answer 17

False

True

Question 18

What is false innuendo?

Answer 18

Where the reader needs to simply read between the lines for it to be defamatory

Question 19

What is true innuendo?

Answer 19

the words appear to be innocent but are defamatory to people who have extra information.

Question 20

Cassidy v Daily Mirror Newspaper

Answer 20

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.

Question 21

Hulton v Jones

Answer 21

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

Question 22

Newstead v London Express

Answer 22

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

Question 23

Test for determining if the statement referred to C (+case):

Answer 23

• 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)

Question 24

Morgan v Oldhams Press Ltd

Answer 24

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)

Question 25

What will not ‘refer to’ C?

Answer 25

Photos

Question 26

O’Shea v MGN

Answer 26

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

Question 27

Knuppfer v London Express Newspapers

Answer 27

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

Question 28

s1 defamation act 2013

Answer 28

The statement must have caused serious harm to C, profit is only serious harm if it results in serious financial loss

Question 29

What is meant by ‘the statement must be published’?

Answer 29

it must be communicated to a third party, a conversation or letter between D and C is not defamatory

Question 30

Methods of publishing and cases:

Answer 30

Websites (Johnson v Steele);
Tweets (Monroe v Hopkins)
Blogs (Cruddas v Adams)

Question 31

Theaker v Richardson

Answer 31

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

Question 32

Godfrey v Demon internet service

Answer 32

• 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