Privacy and defamation Flashcards
revision
Parliament (privacy)
Calcutt Committee 1990.
House of Commons Culture, Media and Sport Committee 2004: “we are not persuaded that there is significant public support for a privacy law”.
OFCOM (privacy)
Communications regulator (including TV and radio)
Broadcasting code (2016): section 8 privacy, any infringement of ‘privacy’ must be warranted.
No individual remedy- can issue fines and withdraw licence from repeat offenders.
IPSO Editors Code, paragraph 2 (privacy)
i) everyone’s entitled to respect for their private and family life, home, health and correspondence, including digital communications.
ii) editors expected to justify intrusions without consent. Claimant’s reasonable expectation of privacy, own public discourse, extent the material’s public or will be.
iii) unacceptable to photograph individuals without consent, where there is a reasonable expectation of privacy.
(Allows derogation if in public interest)
Privacy protection requirements- Coco v AN Clark (Engineers) Ltd [1968]
- info should not be trivial or public knowledge.
- the recipient of the info understands that it is confidential.
- must be an unauthorised use of that info to the detriment of the party communicating it.
Invasion of privacy approach- Kaye v Robertson and Sport Newspapers Ltd [1991]
Claim included:
Trespass
Libel
Passing off
Malicious falsehood
No claim for breach of confidence
Human Rights Act 1998 in relation to privacy
S6: courts must interpret UK law in line with HRA.
S7: can bring proceedings in domestic courts against any public authority
S12(4): if proceedings relate to journalistic, literary of artistic material, courts must decide whether relief would unjustifiably impact freedom of expression.
Impact of HRA 1998 in privacy
art 8 (private and family life) is not absolute. Can be derogated in public interest or to protect other’s freedoms. Requires balance.
art 10 (freedom of expression) is not absolute. Can to restricted to protect others.
Campbell v MGN [2004]- 2 stage test to establish duty of confidentiality
- Does C have a reasonable expectation of privacy.
- Does C’s interest in maintaining right to privacy outweigh D’s interest in freedom of expression.
Campbell
1st test: reasonable expectation of privacy.
2nd test: balancing interests.
If info is obviously private e.g. medical or sexual info.
Art. 8 and 10 balance.
s12(4) HRA appears to prioritise freedom if expression.
Remedies for privacy
Damages where duty is already breached.
Tangible harm not needed but compensation may be low (Campbell).
Interim injunctions- if info is not yet revealed, PJS v News Group [2016].
Super-injunctions- AMM v HXW [2010].
Defamation Act 2013 s1
Not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
Lachaux v Independent Print [2019]- now necessary to show a tendency to cause serious harm but must be considered in context of any swift and unreserved apology.
Corporate claims- serious financial loss as well as the above.
Slander
Defamation in temporary form (words/gestures).
C must prove special damage (s1(1) Def. Act 2013).
Exceptions where slanders are without proof of special damage- imputation of criminal conduct, Gray v Jones [1939].
Imputation of business incompetence (s2 Def. Act 2013).
Slander affecting official/professional or business do not need to allege or prove special damage (s2 Def. Act 1952).
Libel
Permanent form, requires proof of serious harm to reputation (s1(1) Def. Act 2013).
TV and radio are libel, (Broadcasting Act 1990).
statement must be defamatory
reputation
meaning
innuendo
NOT ABUSE
reputation
Will ‘right thinking’ people think less of C (Sim v Stretch (1936)).
Right thinking people: ordinary, reasonable, fair-minded individual is assumed to read statement in proper context, (Charleston v News Group Newspaper [1995]).
Hurt feelings are insufficient.
Finding intended meaning in defamation
“Reasonableness”- Jeynes v News Magazines (2008).
Dictionary meaning or “every day” meaning- Stocker v Stocker (2019).
Findings of fact, applying well-known legal principles- Vardy v Rooney (2020).
Innuendo in defamation
Innocuous statements that have secondary meaning.
Reading between the lines does not create innuendo- Lewis V Daily Telegraph [1964]. There are exceptions- McAlpine v Bercow [2013].
In defamation statement must refer to the C
Would reasonable person think that the statement referred to the C- Morgan V Oldhams Press [1971].
Intention to defame C NOT required.
In defamation statement must be published
Means must be communicated to a 3rd party, Wennhak (1880).
Private communications seen by 3rd party.
Theaker v Richardson (1962): established that the publication of libel depends on the D’s knowledge of the conditions likely to prevail at the destination.
Republication generates fresh action: both re-publisher and original publisher may be liable (McManus v Beckham [2002]).
Offer to make amends s2 Def. Act 1996
Must be in writing.
Must cover correction, apology and offer to pay agreed compensation.
Defence to an innocent defamer that offer is rejected.
Defence lost if akin to malice.
Malice in defamation
Some defences on proof of malice.
Malice is concerned with either knowing false statement is being published or desire to injure.
Can impact attempts to make amends.
In defamation statement must indicate the basis for the opinion s3(3) Def Act 2013
Opinion must actually be based on fact.
Riley v Murray [2022]: if the statement doesn’t indicate the basis for the opinion, the analysis stops and the defence fails.
In defamation: opinion is one an honest person could hold s3(4) Def Act 2013
Turner v MGM [1950]: would an honest man have made this statement.
in defamation: publication on matter of public interest s4 Def Act 2013
Defence if D shows (s4(1)) statement was a matter of public interest and D felt publication was in the public interest.
Must have regard to all the circumstances of the case (s4(2)) Banks v Cadwalldr (2023).
