Week 23: Defamation and Malicious Publication Flashcards
What is the importance of reputation according to Shakespeare?
Shakespeare’s quote highlights that a person’s reputation is invaluable, more so than wealth. Stealing someone’s good name is a deep harm, making them poor in spirit, as it cannot be replaced or enriched by others.
What is defamation?
Defamation is the act of harming someone’s reputation by making false statements that lower their standing in the eyes of others, as defined in Sim v Stretch [1936], where it was stated that defamation lowers a person’s reputation in the estimation of ordinary persons.
What is the Defamation and Malicious Publication (Scotland) Act 2021?
The Defamation and Malicious Publication (Scotland) Act 2021, codified on 8th August 2022, provides a modern legal framework for defamation law in Scotland. It offers clearer definitions and explanatory notes on the law’s application.
What are the two forms of defamation?
The two forms of defamation are libel, which refers to written defamation, and slander, which refers to spoken defamation. Both aim to harm a person’s reputation.
What is a Statement in defamation law?
A “statement” includes words, pictures, visual images, gestures, or any other method of signifying meaning (S36(b)).
What does Innuendo mean in defamation?
Innuendo means an indirect hint or suggestion, typically something that may not be immediately obvious.
What makes a defamatory statement actionable?
A defamatory statement is actionable if:
It is published by person A about person B.
It is published to a third party (someone other than B).
It causes or is likely to cause serious harm to B’s reputation (Section 1).
What does ‘Serious Harm’ mean in defamation law?
“Serious harm” refers to harm that significantly damages a person’s reputation in the eyes of others (Sobrinho v Impresa Publishing SA).
It’s a question of fact and can be inferred from circumstances, such as the gravity of the statement (Lachaux v Independent Print Ltd & Anor).
Can an apology affect the actionability of defamatory statements?
Yes, in some cases, an apology can be a factor in considering whether defamation occurred or the extent of harm (Cooke & Anor v MGN Ltd & Anor).
How does the publication of a defamatory statement apply to non-natural persons (companies)?
For non-natural persons like companies, harm to their reputation is not considered “serious harm” unless it causes serious financial loss (Section 1(3)).
What constitutes the first publication of a defamatory statement?
A right to bring defamation proceedings does not accrue unless the person is:
The author, editor, or publisher of the statement.
An employee or agent responsible for the statement’s content or the decision to publish it (Section 3).
Who can be considered an author or publisher in the context of defamation?
The “author” is the person from whom the statement originated, excluding someone who didn’t intend for it to be published (Section 3(2)).
For electronic statements, merely providing access or expressing approval without altering the statement doesn’t make a person an author or editor.
Are there any exceptions to who can be considered an editor or publisher of an electronic defamatory statement?
Yes, if someone only provides access to a statement (e.g., through a hyperlink) or expresses approval without altering the content, and this doesn’t materially increase harm, they are not considered the publisher or editor (Section 3(3)).
Can public bodies bring defamation proceedings?
No, a public authority cannot bring defamation proceedings, but an individual can bring them in a personal capacity (Section 2).
What types of statements can be defamatory?
Statements about:
Criminality (e.g., Monson v Tussauds Ltd)
Immorality (e.g., Prophit v BBC)
Dishonesty
Financial unsoundness (e.g., Russell v Stubbs Ltd)
Professional or business competence (e.g., Mackellar v Duke of Sutherland)
Disease (context-specific).
What is the defence of Truth in defamation?
It’s a defence if the defender can show that the statement is true or substantially true. The defence applies even if not all imputations are true, as long as the ones that are true are enough to prevent serious harm (Section 5).
What is the defence of Public Interest in defamation?
It’s a defence if the statement was on a matter of public interest and the defender reasonably believed publishing it was in the public interest (Section 8).
What is the defence of Honest Opinion in defamation?
It’s a defence if the statement was an opinion based on evidence, and an honest person could have held the opinion. The defender must genuinely hold the opinion, and the evidence must support it (Section 7).
What are some examples of privileged statements in defamation?
Statements made in:
The House of Commons, House of Lords, and Scottish Parliament
Judicial proceedings
Reports on judicial proceedings (Section 9).
What is Qualified Privilege in defamation?
It applies when A has a moral, social, or legal duty to make a statement, and B has an interest in the information. Examples include references, complaints, reports about parliamentary business, and peer-reviewed academic work. Malice voids this defence.
What is the Offer to Make Amends in defamation law?
If A offers to correct or apologize for a defamatory statement, and B accepts, the defamation proceedings are barred but can be enforced. If rejected, the defendant may claim they didn’t know the statement was false (Sections 13-17).
What are the key factors for Malicious Publications in defamation?
Statements causing harm to:
Business interests (Section 21)
Titles to land (Section 22)
Assets (Section 23).
What was the Ashton Properties v Unite The Union case about?
It involved two tweets about workers’ wages at Brel in Glasgow. The issue was whether the statements made were truthful or constituted an honest opinion. It highlighted the challenges of nuanced communication on social media.
What is a Strategic Lawsuit Against Public Participation (SLAPP)?
SLAPP is a lawsuit intended to silence or intimidate critics, often in the context of corporate or government criticism. The Economic Crime and Corporate Transparency Act 2023 addresses this (Sections 194-195). Actions must usually be brought within a year of first publication (Section 32).
