Tort - Defamation Flashcards
Why does this Tort exist?
To protect a person’s reputation
What two forms can the Tort of Defamation exist?
Libel and Slander
What are the definitions of Libel and Slander?
Libel - Defamation in a permanent form (actionable per se)
Slander - Defamation in transit or temporary form (requires a loss, like a loss of income)
What are some examples of Libel?
- Radio broadcast
- TV news interview
- Public Performance in a theatre
- Letter
What are some examples of Slander?
- Hand gesture
- Spoken Message
What does the phrase ‘Defamation in the form of liable is actionable per se’
It means that the claimant does not need to show any tangible loss flowing from the tort to be able to sue
Is Defamation in the form of liable actionable per se?
No. Defamation in the form of slander generally requires proof of some tangible loss like loss of income flowing from the slander
What does s.1 Defamation Act 2003 state? and what is it’s effect?
s.1 Defamation Act 2003 states that a statement will be defamatory if its publication has or is likely to cause serious harm to the claimant’s reputation
It thereby rules out any trivial claims
What are the three elements of defamation?
- The defendant’s words are defamatory
- The words refer to the claimant
- The words have been published (i.e. communication to a third party)
The first element of defamation requires the words to be defamatory. When will words be defamatory? And who will decide if a statement is capable of being defamatory?
They will be defamatory if
1) Sim v Stretch — they lower the claimant in the eyes of right thinking members of society (i.e. lowering their reputation;
2) Youssoupoff v MGM — they case the claimant to be shunned/avoided;
3) Parmiter v Coupland — they expose the claimant to hatred/contempt/ridicule
- being called hideously ugly, could potentially lead to the claimant being shunned or ridiculed
- being called a hypocrite, being accused of taxing bribes, and exploiting the notoriety of your husband could all lead to the lowering of the reputation of a claimant as well as exposing them to contempt or hatred
It is for the judge to decide if a statement is capable of being defamatory.
If decided that it is, the jury will then have to decided whether, on the facts of the particular case, they consider the statement to be defamatory of the claimant
That the words refer to the claimant is the second element required to prove a statement has been defamatory. It will be easy to prove if the claimant has been named or photographed.
What happens if the claimant has been named by something obscure like a nickname or not named at all?
If the claimant is not named, or named by something obscure like a nickname, the relevant test is the one set out in J’Anson v Stewart
- Where the description is so detailed
- And the resemblance so strong
- That a reasonable person - Who knew the claimant would assume the article is about him
Is it necessary for the defendant to have intended his statement to refer to the claimant?
No it is not necessary, provided that a reasonable reader would have understood it to refer to the claimant
The third element is that the words have been published (communicated to a third party)
What is needed to satisfy this element?
To satisfy this element, the claimant needs to show only that the statement was communicated to a third party
What happens if the defamatory statement has been published initially by its author and then by different people? like if you write a letter to a newspaper, and the newspaper then publishes it
If the letter contained defamatory statements, you as the letter writer and the newspaper have both published the defamatory statement and could both be sued by the claimant
In practice, the newspaper is more likely to be sued because they will have the means to meet a claim for damage
What are the four defences available to the defendant ?
1) Truth
2) Honest Opinion
3) Matter of Public Interest
4) Qualified Privilege
What happens if a defendant’s statement about the claimant is true?
Then the defence is a complete defence per s.2 of the Defamation Act 2013
What does s.2 Defamation Act 2013 state?
The defendant has a complete defence if his statement is factual and the facts are substantially true
When can a defendant use the defence of Honest Opinion?
The defendant can use the defence of Honest Opinion when he has made an hostly held statement of opinion
Where is the defence of Honest Opinion set out?
In s.3 Defamation Act 2013
What conditions does the statement have to fulfil in order to validly use the defence of Honest Opinion set out in s.3 Defamation Act 2013?
- Be a statement of opinion - Set out the basis for the opinion expressed (has to indicate the factual basis of the opinion, this is so that other people can come to their own conclusions from the facts)
- An honest person could have held the opinion on the basis of:
a) any fact which existed at the time the statement complained of was published;
b) anything asserted to be fact in a privileged statement published before the statement was compiled of
When will the defence of Honest Opinion be defeated?
If the claimant is able to show that the defendant did not hold the opinion
What does s.3(6) Defamation Act 2013 state?
Entities that reproduce someone else’s statement (newspapers publishing letters from readers) would be liable only if the claimant is able to prove that the publisher knew that the author of the statement did not hold the opinion expressed
Which section of the Defamation Act 2013 sets out the defence of Matter of Public Interest and what does it say?
s.4
a defendant has a valid defence against an action for defamation for both statements of facts and statements of opinions if he can show that
- the statement complained of was a matter of public interest; and
- the defendant reasonably believed that publishing the statement complained of was in the public interest
under s.4 Defamation Act 2013 what must the court do?
i. Have regard to all circumstances of the case and
ii. Make allowances for editorial judgement when determining whether or not the defendant reasonably believed that publishing the statement complained of was in the public interest
