Week 3: Defamation part 1 Flashcards
Definition of defamation
we use the defamation act 1996
A statement which has been made either verbally or in writing which is not true and can damage a person’s reputation.
It damages the person’s reputation as the defamed statement…
lowers them in the estimation of ‘right-thinking’ members of society generally;
disparages them in their business, trade, office or profession;
exposes them to hatred, ridicule or contempt;
or
causes them to be shunned or avoided.
Libel vs Slander
Libel: The publication of a defamatory statement.
Email, newspaper, magazine, social media, even a Whatsapp or private message.
Slander:Verbal statement or gesture of a defamatory nature.
Could be made in public or private to a third party.
Innuendo
An innuendo in the law of libel is a statement which may seem to be innocuous to some people but is defamatory to people with special knowledge.
Example
I saw our editor go into that house on the corner of Sleep Street – What’s wrong with this?
People with ‘special knowledge’ will know that the house on the corner of that street is a brothel! (p.274, Dodd & Hannah, McNaes, 6th ed)
Who can sue for defamation?
Individuals, businesses and other legal entities can lodge a claim for libel or slander, but only if they believe the defamatory statement is about them.
Claims cannot be brought by central or local government, unincorporated associations or on behalf of dead people.
In order to bring a claim for defamation, the individual or business will need to prove:
that the statement was defamatory
that it referred to them (ie they are named or they can be identified from the information)
that the defamatory statement was published (ie communicated to a third party)
What are the time restrictions?
In Scotland a claimant will need to bring an action for defamation within three years from the date the defamatory material was published.
Each time the defamatory material is published, a new basis for a legal claim is created.
What are the defences?
Truth (veritas)
Fair comment
Absolute privilege
Qualified privilege
Regulation 19 of the Electronic Commerce Regulations [2002] / implementing European Union directive
Section 1 of the 1996 defamation act - Responsibility for publication
Section 2 - Offer of Amends
Fair Comment
Fair comment - protects honestly held comments or opinions based on fact or views widely held and understood by the public/judge.
Campbell vs. Dugdale 2019
Stuart Campbell sued Kezia Dugdale following comments that Dugdale had made in her Daily Record column regarding a tweet Campbell had made.
but ms dugdale won the case
“Ms Dugdale’s article contained the necessary elements for a defence of fair comment.
It was based on true facts;
the statements complained about were honest;
it concerned a matter of public interest,
and the comments were fair.
Who does absolute privilege apply to ?
when can it be used?
During the reporting of court cases or certain types of tribunals
Reports have to be a fair and accurate
Report of judicial proceedings
Held in public within the UK,
Published contemporaneously (as soon as possible/practical).
It does not cover defamatory statements shouted out in a court room by someone who is not taking part in the proceedings such as a member of the gallery.
It only covers material from the open court including material that has not been read out, but the judge has allowed members of the media to read (as long as there are no restrictions in place on the reporting of the material).
MSPs are given absolute privilege which allows them to give the Scottish parliament information without the fear or being sued for defamation.
Journalists covering this will be protected using qualified privilege (previous rules apply)
MSPs can be told off by the presiding officer if their behaviour does not mee the MSPs’ code of conduct
Qualified privilege
This defence allows statements to be freely published in the public interest, with no requirement for the publisher to be able to prove them a true.
Defence applies to media reports of…
Press conferences, parliamentary debates held in public, public meetings, public meetings of councils, council committee and sub-committees, statements issued by the council, police and other government departments.
it applies to a published report/broadcast which is fair and accurate,
without malice,
published in the public interest
should seek “letter or statement of explanation or contradiction”
from everyone (council, public meeting, government department etc) but don’t need right of reply from parliament
qualified privilege from the schedules of contempt of court act 1981
Reporting restrictions from the Houses of Parliament
“To publish information derived from the reports of the select committees before they have been laid before the House is a breach of privilege.”
“To reveal the contents of a report before MPs have had a chance to read it is a breach of privilege.”
Same does not apply to Green and White papers.
No breach in publishing witnesses’ submissions when giving evidence to parliament.
(b) Defamation is a civil action. Which one of these courts can try a defamation case? JP court; Sheriff Court; High Court of Justiciary?
Sheriff Court
The sheriff courts are the local civil courts in Scotland, as there is a sheriff court in every city and a number of the towns.
They have jurisdiction in respect of a wide range of civil (and criminal) matters.
On the other hand, the Court of Session sits only in Parliament House in
Edinburgh. it also sees civil cases.
c) If a party, against whom a defamation case is taken, loses the case in the trial, what will that losing party have to pay?
General rule of thumb is that the losing party in a civil case will need to pay for the winning party’s legal fees unless they are in receipt of legal aid or there are other exceptions.
If the losing party in that defamation case is the defender, then they will most likely be ordered to pay damages too by the judge/sheriff to the pursuer if that is what the pursuer has sought as a remedy.
what does qualified privilege apply to?
It applies to a published report/broadcast that is fair and accurate and published/broadcast without malice.
The matter published/broadcast must be a matter of public interest, the publication which is for the public benefit – in other words published in the public interest
This defence allows statements to be freely published in the public interest, with no requirement for the publisher to be able to prove them a true.
Defence applies to media reports of…
Press conferences, parliamentary debates held in public, public meetings, public meetings of councils, council committee and sub-committees, statements issued by the council, police and other government departments.
journalists should seek right of reply
this helps ensure the article is balanced
when can journalists report parliamentary privilege…
Journalists are allowed to report this parliamentary privilege, but will only be covered by qualified privilege if they do so.
That means as long as if it is
a fair and accurate report of what was said in parliament
the report is contemporaneous
published in the public interest
Journalists should seek for a right to reply.
Truth (veritas)
Truth (veritas) – if the statement is true, then there it can’t be defamatory.
Up to the defence to prove that the statement is true
The standard of proof needed for a truth defence…the material must be proved true on the balance of probabilities.
