Part 6 - Defamation and Related Matters

Question 1

What is a defamatory statement? Explain in detail.

Answer 1

Defamatory statements are those published or spoken which affect the reputation of a person, company or organisation. If written or in permanent form, it’s libel. If spoken, it’s slander.

A statement is defamatory if it seriously affects a person’s reputation by:

• exposing him/her to hatred, ridicule or contempt, or causing him/her to be shunned or avoided
• lowering him/her in the estimation of right-thinking members of society generally
• disparaging the person in his/her business, trade, office or profession

Question 2

What is the test in law of what words mean?

Answer 2

What a ‘reasonable person’ would think they mean.

Question 3

In defamation law, what is an innuendo?

Answer 3

An innuendo is a statement which seems to be innocuous to some people but is defamatory to people with special knowledge.

Question 4

In defamation law, what is an inference?

Answer 4

An inference is a statement with a secondary meaning which can be understood by someone without special knowledge who ‘reads between the lines in light of his general knowledge and experience of worldly affairs.’

Question 5

What did the Defamation Act 2013 abolish?

Answer 5

The presumption of jury trial for defamation cases, so they are heard by a judge alone unless the court decides otherwise.

Question 6

What must a claimant suing for defamation prove? (mnemonic)

Answer 6

• the publication is defamatory
• it may be reasonably understood to refer to him/her - that is, ‘identification’
• it has been published to a third person

The claimant must also show that what was published has caused or is likely to cause ‘serious harm’ to his or her reputation.

Question 7

Where else may libel dangers arise from?

Answer 7

• juxtaposition of published matter
• lax captioning
• lax use of photographs or of footage creating inference or ‘identification’

Question 8

How long is the limitation period for commencing a libel action?

Answer 8

Within 12 months of the material being published.

Question 9

In defamation law, what is the ‘repetition rule’?

Answer 9

Every repetition of a libel is a fresh publication and creates a fresh cause of action.

Question 10

What is the ‘single publication rule’? Mention the relevant Act.

Answer 10

Section 8 of the Defamation Act 2013 introduces the ‘single publication rule’, which means that the 12-month limitation period for bringing a defamation action runs from the date of the first publication of the complained-of statement ‘to the public’ - that is, the first time any member of the public accessed it. This applies even if ‘substantially the same’ material is subsequently published.

Question 11

When does the single publication rule not apply?

Answer 11

If the manner of the subsequent publication is ‘materially different’ from the manner of the first publication, a difference which would be a higher ‘level of prominence’ in subsequent publication and/or greater extent of subsequent publication, and does not protect a different publisher.

Question 12

Who cannot be libelled?

Answer 12

A dead person.

Question 13

What is the test of identification in defamation law?

Answer 13

Whether the published statement would reasonably lead people acquainted with him/her to believe that he/she was the person referred to.

Question 14

What can risk libelling an individual?

Answer 14

Referring to a group of people.

Question 15

Name and explain some cases relevant to identification.

Answer 15

• Newstead v London Express Papers Ltd

- Riches and others v News Group Newspapers Ltd

Question 16

What defences does the Defamation Act 2013 set out?

Answer 16

• truth
• honest opinion
• absolute privilege
• qualified privilege
• accord and satisfaction
• offer of amends

Question 17

In defamation law, what does the ‘truth’ defence require?

Answer 17

It requires the defendant to prove that the statement complained of is ‘substantially true.’

Question 18

Outline the effectiveness of the truth defence when there are two or more imputations.

Answer 18

The defence ‘does not fail if, having regard to the imputations which are proved to be substantially true, the imputations which are not proved to be substantially true do not seriously harm the claimant’s reputation.’ This means a defendant does not have to prove the truth of every statement in what was published, but the most damaging one must be proved and the reputational damage it causes must outweigh any damage caused by unproved allegations.

Question 19

Why can ‘truth’ be a difficult defence to use in defamation law?

Answer 19

• the burden of proof is on the publisher and the truth may be difficult to prove
• there is uncertainty about how a judge will decide the meaning of what was published

Question 20

In defamation law, what is the standard of proof needed for a truth defence?

Answer 20

The same as that used in civil cases - the material must be proved true ‘on the balance of probabilities.’ This means when presented with different accounts of an event, the court decides which version is most likely to be true.

Question 21

In defamation law, what are the difficulties of meeting the standard of proof in a truth defence?

Answer 21

• a witness may prove reluctant to testify or hard to locate

- meaning may be created in inference and innuendo

Question 22

Why might media organisations be reluctant to fight libel actions?

Answer 22

• uncertainty of how a judge will interpret meaning
• difficulty of proving the truth
• huge damages could be awarded if trial lost
• huge costs

Question 23

Rather than fighting a defamation action, what may a media organisation do instead and why?

Answer 23

They may opt for settlement out-of-court, to avoid risk of high damages/high costs or unpredictable rulings on meaning.

Question 24

What types of evidence or corroboration could meet the standard of proof in a truth defence?

Answer 24

It includes:

• witness statements
• audio-recordings
• footage
• documents or other records from official sources

Question 25

In defamation law, what are the requirements of the honest opinion defence?

Answer 25

All of these must be met. The published comment must:

• be the honestly held opinion of the person making it
• be recognisable to the reader/viewer/listener as opinion rather than as a factual allegation
• be based on a provably true fact or privileged material
• explicitly or implicitly indicate, at least in general terms, the fact or information on which it is based

Question 26

When does the honest opinion defence fail?

Answer 26

• if the claimant can prove in a case where the defendant was the author of the statement that he/she did not hold the opinion
• in a case where the statement complained of was published by the defendant but made by another person (the author), the defence is defeated if the claimant proves that the defendant knew or ‘should have known’ that the author did not hold the opinion

Question 27

What is the honest opinion defence most relevant to?

Answer 27

Reviews and comment, including comment about court cases or inquests, e.g. criticisms of judges/magistrates/coroners/defendants.

Question 28

In defamation law, what does the defence of absolute privilege protect?

Answer 28

• MPs/peers as regards what they say in Parliamentary proceedings and Assembly members as regards what they say in National Assembly for Wales proceedings
• media reports of court proceedings, including inquests, heard in public in the UK
• media reports of court proceedings heard in public anywhere in the world under the law of a country or territory outside the UK
• a media report of the public proceedings of an inquiry held under the Inquiries Act 2005 and proceedings of courts martial of the UK armed services if heard in public within or outside the UK

Question 29

In defamation law, what are the requirements of the defence of absolute privilege? Explain these requirements.

Answer 29

That the report is fair, accurate, cotemporaneous and is of proceedings held in public.

Fair and accurate: presents summary of the cases is put by both sides; contains no substantial inaccuracies; and avoids giving disproportionate weight to one side or the other.

Contemporaneous: published ‘as soon as practicable’.

Question 30

What does the defamation defence of absolute privilege not apply to?

Answer 30

Statements not made in the proceedings or to report of such statements.

Question 31

In defamation law, what are the scope and requirements of the statutory defence of qualified privilege?

Answer 31

That the published report must be fair and accurate, and published without malice. There is also a requirement that the matter published must be a matter of public interest, the publication of which is for the public benefit.

Question 32

What is the distinction between the requirements of qualified privilege under Part 1 and Part 2 of Schedule 1 of the 1996 Defamation Act?

Answer 32

Part 1 lists statements having qualified privilege ‘without explanation or contradiction.’ Part 2 lists statements thus privileged but ‘subject to explanation or contradiction.’

A publisher relying on qualified privilege under Part 2 to protect a report must, to retain the protection, publish a ‘reasonable letter or statement by way of explanation or contradiction’ if required to do so by anyone defamed in the report.

Question 33

What does qualified privilege apply to under Part 1 of Schedule 1 of the Defamation Act 1996?

Answer 33

• media reports of the proceedings in public of courts (including inquests) based in the UK or anywhere in the world, when the coverage is non-contemporaneous
• media reports of the proceedings in public of legislatures anywhere in the world, including those of the UK Parliament and of the National Assembly for Wales
• media coverage of matter published by or on the authority of governments or legislatures anywhere in the world, including of matter published in Hansard
• media reports of the proceedings in public of a person appointed to hold a public inquiry by a government or legislature anywhere in the world
• media reports of copies of or extracts from any register or document required by law to be open to public inspection, e.g. records from Companies House, the Land Registry or case documents in civil court cases which the Civil Procedure Rules say can be inspected by right

Question 34

What does qualified privilege apply to under Part 2 of Schedule 1 of the Defamation Act 1996?

Answer 34

• media reports of the proceedings in public of a commission/tribunal/committee/person appointed to hold an inquiry by a Minister of the Crown, the Welsh Ministers or the Counsel General of the Welsh Assembly Government, or by a Northern Ireland Dept, or of such proceedings of any other tribunal/committee/board/body exercising functions by virtue of statutory provision, which may be referred to as a ‘public inquiry’ or, for example, be a disciplinary panel based on statutory powers, e.g. The ‘Fitness to Practice’ panels of the General Medical Council, now administered in the Medical Practitioners Tribunal Service, and police force disciplinary panels and when as regards an inquiry held under the Inquiries Act 2005, the media coverage is non-contemporaneous
• media reports of the proceedings in public of local inquiries held under statutory provision
• media reports of the proceedings of public meetings held anywhere in the world
• media reports of the proceedings at a press conference held anywhere in the world for the discussion of a matter of public interest and that a House of Lords judgment extended this qualified privilege to the inclusion in such reports of the content of material distributed
  at press conferences
• media reports of statements/reports issued for public information by police/other governmental agencies anywhere in the world, including UK councils and UK police forces including official reports thus issued of the findings of a UK local inquiry
• media reports of the proceedings in public of UK council or council committee or sub-committee meetings
• media reports of the findings of certain types of association formed anywhere in the world, or of any of their committees or governing bodies, empowered by their constitutions to exercise control over or adjudicate on matters of interest or concern to them (etc), including powers to investigate or discipline, e.g. the findings of the British Horseracing Authority disciplinary panel, or of an Independent Regulatory Commission of the Football Association, or such findings of any other sporting or business or educational or scientific association of this nature
• media reports of proceedings at a general meeting of a UK public company
• media reports of documents issued to members of a listed company by or with the authority of the board of directors, the company’s auditors, or members in pursuance of a right conferred by statutory provision; or of documents, circulated to such members, relating to appointment, resignation, retirement or dismissal of directors or auditors

Question 35

What does Part 2 of Schedule 1 of the Defamation Act, following amendment of the 2013 Act, define a ‘public meeting’ as?

Answer 35

A lawful meeting held anywhere in the world for the furtherance or discussion of a matter of public interest, whether admission to the meeting is general or restricted.

Question 36

In defamation law, what are the scope and requirements of the defence under Section 1 of the Defamation Act 1996?

Answer 36

That ‘live’ broadcasts and material are protected and it applies to anyone who was not the author, editor or publisher of the statement complained of, who took reasonable care in relation to its publication, and who did not know and had no reason to believe that whatever part he/she had in the publication caused or contributed to the publication of a defamatory statement.

Question 37

In defamation law, what defence does Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 provide?

Answer 37

A defence which protects a publisher who did not know that a reader had posted defamatory material provided that the material is ‘expeditiously’ removed.

Question 38

What defence does Section 5 of the Defamation Act 2013 provide?

Answer 38

A defence for website operators who can show that they did not post the relevant material (e.g. readers’ comments) on their website.

Question 39

In defamation law, when does the Section 5 fail?

Answer 39

• if the website operator has received a notice of complaint about the material but has failed to respond to that notice in accordance with the procedure, including the timetable, specified in the Act’s regulations
• if a claimant shows that the website operator acted with malice in relation to the material concerned

Question 40

Why may the Section 5 defence offer some protection even if libellous material is ‘moderated’?

Answer 40

Because it specifies that the defence ‘is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others’, provided that the procedure is followed. Section 1 and Regulation 19 do not apply to moderated material.

Question 41

Outline the risks in publishing apologies and corrections after a defamatory publication, and what should be done in the event of a problem.

Answer 41

Publishing a correction and apology not agreed by the claimant is not a defence and can make matters worse for the publisher because:

• a court may find that it constitutes an admission that the material which prompted the complaint was defamatory
• a badly drafted apology or correction might also repeat the original defamatory statement, further angering the person who complained about it, or even unwittingly libel someone else.

It is therefore important to inform the editor/an executive about a complaint.

Question 42

In defamation law, outline the defence of ‘accord and satisfaction.’

Answer 42

A media organisation can use the defence of ‘accord and satisfaction’ to halt a defamation case on the ground that the issue has already been disposed of, e.g. by publication of a correction and apology which the claimant accepted.

Parties attempting to settle their differences before going to law should be encouraged to speak frankly - anything said or written in the course of negotiations to settle and described as ‘without prejudice’ (off the record) cannot subsequently be used against a party in court if negotiations fail.

Discussions over an offer to publish a follow-up or a correction do not necessarily need to be ‘without prejudice’, but discussions over settling a claim (which involves solicitors and the mention of money) should be ‘without prejudice.’

Question 43

Outline the defence of ‘leave and licence.’

Answer 43

This defence is that the claimant suing for libel had previously agreed that the material could be published.

Question 44

What is the safest course when relying on a defence of ‘leave and licence’?

Answer 44

To have in writing as a signed statement, or in an audio or visual recording, any such agreement that defamatory matter can be published.