Tort - Defamation

Question 1

Why does this Tort exist?

Answer 1

To protect a person’s reputation

Question 2

What two forms can the Tort of Defamation exist?

Answer 2

Libel and Slander

Question 3

What are the definitions of Libel and Slander?

Answer 3

Libel - Defamation in a permanent form (actionable per se)

Slander - Defamation in transit or temporary form (requires a loss, like a loss of income)

Question 4

What are some examples of Libel?

Answer 4

• Radio broadcast
• Email
• TV news interview
• Public Performance in a theatre
• Letter

Question 5

What are some examples of Slander?

Answer 5

• Hand gesture

- Spoken Message

Question 6

What does the phrase ‘Defamation in the form of liable is actionable per se’

Answer 6

It means that the claimant does not need to show any tangible loss flowing from the tort to be able to sue

Question 7

Is Defamation in the form of liable actionable per se?

Answer 7

No. Defamation in the form of slander generally requires proof of some tangible loss like loss of income flowing from the slander

Question 8

What does s.1 Defamation Act 2003 state? and what is it’s effect?

Answer 8

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

Question 9

What are the three elements of defamation?

Answer 9

1. The defendant’s words are defamatory
2. The words refer to the claimant
3. The words have been published (i.e. communication to a third party)

Question 10

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?

Answer 10

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

Question 11

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?

Answer 11

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

Question 12

Is it necessary for the defendant to have intended his statement to refer to the claimant?

Answer 12

No it is not necessary, provided that a reasonable reader would have understood it to refer to the claimant

Question 13

The third element is that the words have been published (communicated to a third party)

What is needed to satisfy this element?

Answer 13

To satisfy this element, the claimant needs to show only that the statement was communicated to a third party

Question 14

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

Answer 14

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

Question 15

What are the four defences available to the defendant ?

Answer 15

1) Truth
2) Honest Opinion
3) Matter of Public Interest
4) Qualified Privilege

Question 16

What happens if a defendant’s statement about the claimant is true?

Answer 16

Then the defence is a complete defence per s.2 of the Defamation Act 2013

Question 17

What does s.2 Defamation Act 2013 state?

Answer 17

The defendant has a complete defence if his statement is factual and the facts are substantially true

Question 18

When can a defendant use the defence of Honest Opinion?

Answer 18

The defendant can use the defence of Honest Opinion when he has made an hostly held statement of opinion

Question 19

Where is the defence of Honest Opinion set out?

Answer 19

In s.3 Defamation Act 2013

Question 20

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?

Answer 20

• 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

Question 21

When will the defence of Honest Opinion be defeated?

Answer 21

If the claimant is able to show that the defendant did not hold the opinion

Question 22

What does s.3(6) Defamation Act 2013 state?

Answer 22

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

Question 23

Which section of the Defamation Act 2013 sets out the defence of Matter of Public Interest and what does it say?

Answer 23

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

Question 24

under s.4 Defamation Act 2013 what must the court do?

Answer 24

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

Question 25

What could be included in Matters of Public Interest?

Answer 25

• Affairs of business
• 
Matters relating to the Church


-Conduct of public figures (celebs and MPS)


- Administration of the State


- The publication of books or newspapers

• The performance of plays 
- the broadcasting of films and tv programmes

Question 26

What type of defence is Qualified Privilege?

Answer 26

A common law defence

Question 27

When does Qualified Privilege apply?

Answer 27

It applies when the maker of a statement has a legal, moral or social ‘duty’ to make the statement, and the recipient of the statement has an interest in receiving the information 
-

like giving a statement to the police, or a new employer asking for a letter of reference

Question 28

Does the defence of Qualified Privilege apply to both statements of fact and opinion?

Answer 28

Yes

Question 29

When will the defence of Qualified Privilege fail?

Answer 29

The defence will fail if the claimant can show that the defendant acted with malice in making the statement — for example making an untrue statement in a reference letter

if the incorrect reference was given carelessly, the claimant could have a claim in the tort of Negligence

Question 30

What case is relevant for the Misuse of Private Information?

Answer 30

Campbell v MGN

Question 31

When will an action for the misuse of private information succeed?

Answer 31

if the claimant can show that two conditions are satisfied


1) the information divulged is private — the test for this is whether the claimant had a reasonable expectation of privacy in relation to the information disclosed 
- in deciding this the court must taken into account all the circumstances of the case 
- matters likely to be viewed as private are - health, sexual activities, personal relationships, finial affairs, and photographs taken covertly in a private place


2) There is no legitimate public interest in the disclosure of the information 
- there would be legit public interest in the disclosure of the information if the publication could show that

i. The claimant had previously lied about the matter disclosed

ii. The claimant had engaged in illegal or iniquitous behaviour 
iii. Where information is about political figures in their role in private life

If private information is divulged in breach of a confidential relationship (particularly a contractual duty of confidence) then it is more like that this tort has been committed