Part 6 - Defamation and Related Matters Flashcards
What is a defamatory statement? Explain in detail.
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
What is the test in law of what words mean?
What a ‘reasonable person’ would think they mean.
In defamation law, what is an innuendo?
An innuendo is a statement which seems to be innocuous to some people but is defamatory to people with special knowledge.
In defamation law, what is an inference?
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.’
What did the Defamation Act 2013 abolish?
The presumption of jury trial for defamation cases, so they are heard by a judge alone unless the court decides otherwise.
What must a claimant suing for defamation prove? (mnemonic)
- 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.
Where else may libel dangers arise from?
- juxtaposition of published matter
- lax captioning
- lax use of photographs or of footage creating inference or ‘identification’
How long is the limitation period for commencing a libel action?
Within 12 months of the material being published.
In defamation law, what is the ‘repetition rule’?
Every repetition of a libel is a fresh publication and creates a fresh cause of action.
What is the ‘single publication rule’? Mention the relevant Act.
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.
When does the single publication rule not apply?
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.
Who cannot be libelled?
A dead person.
What is the test of identification in defamation law?
Whether the published statement would reasonably lead people acquainted with him/her to believe that he/she was the person referred to.
What can risk libelling an individual?
Referring to a group of people.
Name and explain some cases relevant to identification.
- Newstead v London Express Papers Ltd
- Riches and others v News Group Newspapers Ltd
What defences does the Defamation Act 2013 set out?
- truth
- honest opinion
- absolute privilege
- qualified privilege
- accord and satisfaction
- offer of amends
In defamation law, what does the ‘truth’ defence require?
It requires the defendant to prove that the statement complained of is ‘substantially true.’
Outline the effectiveness of the truth defence when there are two or more imputations.
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.
Why can ‘truth’ be a difficult defence to use in defamation law?
- 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
In defamation law, what is the standard of proof needed for a truth defence?
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.
In defamation law, what are the difficulties of meeting the standard of proof in a truth defence?
- a witness may prove reluctant to testify or hard to locate
- meaning may be created in inference and innuendo
Why might media organisations be reluctant to fight libel actions?
- uncertainty of how a judge will interpret meaning
- difficulty of proving the truth
- huge damages could be awarded if trial lost
- huge costs
Rather than fighting a defamation action, what may a media organisation do instead and why?
They may opt for settlement out-of-court, to avoid risk of high damages/high costs or unpredictable rulings on meaning.
What types of evidence or corroboration could meet the standard of proof in a truth defence?
It includes:
- witness statements
- audio-recordings
- footage
- documents or other records from official sources