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DEFAMATION ESSAY    

What are the main defences (balance for plaintiff and claimant?) Does this law need reformed (in general and just because of the defences) Law favours right of expression over protection of reputation (and vice versa) This act in NI compared to Eng+Wales one

Introduction  The tort is concerned with the protection of reputation. There is, therefore, a pronounced human rights dimension to the tort (freedom of expression vs protection of reputation). Definition  ‘Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.’ Defamation, which may take the form of libel and/or slander, is one of the more high profile and controversial areas of tort law. This is because the tort brings together the competing imperatives of “protection of reputation” and “freedom of expression”, and raises interesting questions about where the balance between the two is to be struck. This is true not just at the level of whether (for instance) a newspaper should be allowed to raise a particular defence in an action against it, but also at the level of awards of damages when an individual has been defamed (see, most famously, Tolstoy Miloslavsky v UK (1995) 20 EHRR 442). There is thus a pronounced civil liberties dimension to the tort, which dimension is also apparent in relation to “privacy” (next topic) *** It is important not to become too fixated on the significance of the Defamation Act 2013, precisely because it does not apply in Northern Ireland. ****Next things don’t need to be included in essay ….*** Difference between Libel and Slander statements of defamation? Street on Torts (14th ed) writes, at p 544: “There can be no doubt that anything communicated in the form of a permanent character and visible to the eye is libel, and that anything temporary and merely audible is merely slander”. On the line that divides the two see further, e.g., Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 Three main questions asked in defamation actions in any of the jurisdictions in the UK: 1. Is C a person who can sue in defamation? 2. Has D published a statement defamatory of C which has been (re) published or

communicated to others? 3. If so, has D a good defence Who can sue? i.

Very little restriction here, although it has been held that neither local government (Derbyshire CC v Times Newspaper [1993] AC 534) nor political parties can sue in defamation (Goldsmith v Bhoyrud [1997] 4 All ER 268). Can individual politicians’ sue? Yes ( Elliot v Flanagan [2016] NIQB 8) Can a deceased’s estate sue in defamation? No = can’t libel the dead. Can a company sue? Yes South Hetton Coal Company [1894] 1 QB 133., as it has a business reputation. (Note that, under section 1(2) of the Defamation Act 2013 (in England and Wales) a company can only sue if it can show that the article in question has caused or is likely to cause them “serious financial loss” – this is true irrespective of the nature of the defamatory statement.) 2. Has D published a statement defamatory of C which has been (re) published or communicated to others?

This question involves THREE elements: (1) Is the statement defamatory? (2) Does it refer to C? (3) Has the statement been published? (can go into more detail but not needed) 3 .Do e sDh a v eag o odd e f e n c e ?( a n s we r e di ne s s a yp oi n t1 )

 What are the main defences (balance for plaintiff and claimant?) (which means balance of expression and protection) I ti si nt h ec o n t e x to ft hed e f e n c e st h a tr e a lt e n s i o n sb e t we e nt her i g h tt of r e e d omo f s p e e c ha ndt h en e e dt op r o t e c tC’ sr e p u t a t i ons h o wt h e ms e l v e s .I no t h e rwo r d s , wh e n r e c o g n i s i n gt h a tac l a i ma nts h ou l dha v ear i g h tt od e f e n dt h e i rr e p u t a t i o na g a i n s t d e f a ma t or ys t a t e me n t s ,t h ec o u r t smu s ta l s oc o n s i d e rwh e t h e rt h ep u b l i c a t i o nc a nbe d e f e n d e d ,e i t h e ro nt h eba s i st h a tt h ewo r d sa r et r u eo rj u s t i fie dorp r i v i l e g e dori nt h e p u b l i ci n t e r e s t .Th e s ed e f e n c e smu s ta l s on o wb ec on s i d e r e di nt h el i g h to ft h es e c t i o n1 2 o ft heHu ma nRi g h t sAc t1 9 9 8a n dAr t i c l e10o ft h eECHR, b o t hpl a c i ngp a r t i c u l a r importance on freedom of expression. 1. A first defence is consent: if C has agreed to a statement about him or her being made, then he cannot sue in respect of its content. Chapman v Ellesmere [1932] 2 KB 431 2. A second defence is justification i.e., it is a complete defence to show that an allegedly defamatory statement of fact was substantially true. : M’Pherson v Daniels

(1829). The burden of proof is upon the defendant. Similarly, if a number of statements or charges about the claimant have been made, then, so long as the defendant demonstrated that the most material (most serious) charges are true and justifiable, the defence will be available: see section 5 of the Defamation Act (Northern Ireland) 1955 and, in England and Wales, section 2 of the Defamation Act 2013. Note also that D has to establish only the “essential” or “substantial” truth of the sting of the libel”. Edwards v Bell (1824).

3. Innocence is not a defence at common law, but section 1 of the Defamation Act 1996 does give it some traction. See also sections 2-4 of the Defamation Act 1996 i.e., a limited statutory apology/compensation procedure. Innocence is no defence - Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331

4. A fourth category of defence is that of “privilege”. Privilege applies where a person has published a statement on a privileged occasion. It can be “absolute”, such as when a person gives evidence in court or speaks during Parliamentary debate, or “qualified”. Common law qualified privilege rests upon a reciprocal duty between the maker of a statement and an interest that is held by the recipient of the publication: examples include newspapers, employment references, responses to inquiries about crime, and responses to inquiries as to credit. A wide range of reports is also protected by a number of statutes – statutory qualified privilege. See Schedule I to the Defamation Act 1996 and, in England and Wales, section 7 of the Defamation Act 2013. The defence of qualified privilege can be defeated by proof of “malice”, meaning that the publisher did not, him or herself, believe the facts that he or she stated, or where he or she was motivated by ill-will. (if more needed use notes below)

5. An aspect of qualified privilege that attracts much attention is that concerned with responsible publication on a matter of public interest. It was developed by the House of Lords from common law qualified privilege in the case of Reynolds v Times Newspapers Ltd Reynolds v Times Newspapers [1999] UKHL 45; [2001] 2 AC 127. The Reynolds privilege defence recognises that it is of democratic and political importance to accept that, despite best endeavours, false statements of fact – or at least statements that cannot be proven to be true - may sometimes be published. The defence was developed in Jameel & Ors v Wall Street Journal (Europe) [2006] UKHL 44; [2007] 1 AC 359 and Flood v Times Newspapers Ltd [2012] UKHL 11; [2012] 2 AC 273. The defence provides that where the subject matter of the publication is a matter of public interest, and the publisher has acted responsibly in preparing the publication, no liability in defamation will ensue. There are a number of points to note about Reynolds. First, it is important to study the leading speech of Lord Nicholls, who set out a non-exhaustive list of ten factors relevant to the assessment of whether publication (and therefore the publisher/journalist) had been responsible. Second, the publisher/journalist seeking to use the defence will be expected to have acted responsibly and checked their story in accordance with expected journalistic and newspaper ethics = heavy burden of “responsible reporting” on the D. Third, despite this

“heavy” burden, some commentators still sees the Reynolds defence as overly journalist friendly in the sense that, although the C has been libelled, and the public misled to some degree, the D-journalist/publisher is not liable on the grounds that occasional mistakes – made by an otherwise responsible journalist acting in the public interest – are the price to be paid for a free press. Fourth, in England and Wales the common law Reynolds defence has been replaced by a new statutory defence of “publication on a matter of public interest” (section 4 of the Defamation Act 2013), though it is projected that this will result in little substantive change as section 4 of the Defamation Act 2013 was intended to reflect the principles established in Reynolds and subsequent Supreme Court decisions such as Jameel and Flood. (Note that Reynolds still applies in Northern Ireland.)

6. The defence of “fair/honest comment” stems from the belief that honest comment is fundamental in every modern democratic society. This defence is available where D makes: 1. A statement of opinion 2 On a matter of fact 3. That is in the public interest Leading authority  Joseph v Spiller [2011] 1 AC 852. Distinguishing statements of fact from comments or opinions has proven difficult for the courts (and students and academics), and the requirements of the defence have arguably been interpreted in an overly technical fashion NI one e.g, Convery v Irish News [2008] NICA 14. In the recent case of Spiller v Joseph [2010] UKSC 53, the Supreme Court tried to restate features of the defence and offered a clear explanation of its origins, its rationale and its purpose. Section 3 of the Defamation Act 2013 has tried to clarify matters even further and has renamed the defence as one of “honest opinion” in England and Wales. Balance between Plaintiff and Claimant? (freedom of expression over protection of reputation below)

 Does this law need reformed (in general and just because of the defences) No as it tries to protect both claimant (protection of reputation) and defendant (right of expression) yet can be argued there isn’t a good enough balance struck and needs reformed to make a better balance…. The only legitimate purpose of defamation laws is to protect reputations. At the same time, the practice in many parts of the world is to abuse defamation laws to prevent open public debate and legitimate criticism of wrongdoing by officials. Many countries have laws designed to safeguard the honour of certain objects, including national or religious symbols. Inasmuch as an object, as such, cannot have a reputation, these laws do not serve a legitimate aim The Defamation Act 2013 has been expected with interest, as the law of defamation before the Act was uncertain and unfair. In addition, the recommendations in the Leveson Report added further concern about the enactment of a law which would bind the press and, consequently, sacrifice freedom of expression in a democratic society. After the Leveson

Inquiry, the press was threatened to be imposed with heavy regulations and harsh controlling measures. However, the Defamation Act 2013 turns out to be a useful tool to create a fair balance between freedom of expression and the right to a good reputation. The 2013 Act is still under discussion and the reason is straightforward. In defamation law, decisions are never easy as judges have to make a ‘tragic choice between right and right’. In some cases, it can appear to be subjective or even arbitrary. For this reason, a strong and clear basis is needed. In light of this, it is beyond doubt that the act is a desirable development of the law.

 This act in NI compared to Eng+Wales one In general policy terms, there is an argument that the “old/unreformed” libel laws (still relevant to NI) are somewhat restrictive of free speech, in contrast to the (new/reformed) legislation (applicable in England and Wales), which is said to slightly favour freedom of expression. This debate does, however, to and fro, and views within it vary. The Act of 2013 was enacted because it was thought that the law was striking the wrong balance in a number of important respects, and the changes that it introduced were intended to address corresponding problems. Defamation Act 2013- what difference does it really make? But journalists are set to have greater protection under the rules governing the new Defamation Act 2013. The bill received RoyalAssent on 25th April 2013 and is now an act of law. Those behind the new law say that the Defamation Act 2013 will simplify the law, raising the bar for corporate litigants, who will now have to think before they decide to sue. It is also said to clarify and re-enforce libel defences. The Index on censorship commenting that the Act is a; ‘victory for free speech’. It appears the thinking behind the bill is to reform the law on defamation, so that a fairer balance is struck between the right of freedom of expression and the protection of reputation. Key areas of change and what do they mean? Section 1 of the new act contains a serious harm requirement, caused or likely to be caused, for defamation. Sections 2-7 contain defences in relation to truth, honest opinion, publications on matters of public interest, and a defence for operators of websites. They also contain a defence of qualified privilege for peer reviewed statements in scientific or academic journals, and amendments to absolute and qualified privilege in the Defamation Act 1996.Section 8 contains a single publication rule with a one year limitation period to preclude actions for multiple publications of the same material.Sections 9 and 10 make provision in relation to jurisdiction with a view to reducing claims being brought with a limited link to England and Wales.Section 11 provides that defamation trials are to

be without a jury unless the court orders otherwise. Section 12 makes provision pertaining to the court power to order a summary of its judgment to be published and Section 13 concerning the order to remove a statement or cease distribution.

 Law favours right of expression over protection of reputation (and vice versa) This tort brings together the competing imperatives of “protection of reputation” and “freedom of expression”, and raises interesting questions about where the balance between the two is to be struck. Among the many minefields to dodge in the journalistic field Defamation is a particularly important one to know and understand.While there are lines, it is very easy for journalists to cross them due to the many grey areas within existing law. Various celebrities and defendants have, in the past, been awarded extensive damages for papers defamatory or libellous statements. Frankie Boyle for example, was awarded £54,650 in damages after a High Court jury concluded that the Daily Mirror had libelled him by describing him as ‘racist’. Thus due to the awarding of high damages and apparent success rates for claimants, the UK is seen as a claimant friendly country. Since the revelation of phone hacking and the subsequent publication of the Leveson report – press standards, regulation, libel and breach of privacy have all been under substantial scrutiny. Therefore the passing of the Defamation Act 2013 has been heralded as a win for libel reform. The act was driven by calls for reform in many aspects including; reform of defamation defences for journalists, publishers and internet service providers; rules regarding repetition of defamatory content through online re-publishing, and prevention of so-called ‘libel tourism,’ to name but a few. The law before the 2013 Act was archaic and unbalanced, which resulted in chilling effects and the oppression of legitimate debate. This is the result of years of lopsided law in favour of the right to a good reputation. As a result of this, the case law in this area has become an obstacle for judges who want to shift the balance. A concrete example is the case of Reynolds v Times Newspapers Ltd where the courts tried to expand the protection of freedom of expression. However, judges found themselves constrained by the antique law and precedent. Consequently, judges’ desire to modernise the law by stretching the meaning of the words lead to a mistaken association of modern ideas such as ‘freedom of expression’, ‘public interest’ and the archaic idea of ‘privilege’. Despite the difficulties encountered, Reynolds v Times Newspapers Ltd was in fact a step towards the creation of a fair balance.

On the whole, the changes to the law of defamation introduced by the Act will largely favour defendants and significantly assist the defence of libel action. But how eager the courts are to rule in favour of media defendants way well be judged on a case-by-case basis and it will not mean media can get away with being fast and loose wiith their statements and publications.

While an emphasis must be put on freedom of expression and public interest in light of the medias recently shady and unethical practices, it may not be so easy for all defendants to procure the benefits seemingly conferred on them by this new act. ******************************************************************* REVISION NOTES An excellent summary of the law of defamation Northern Ireland can be found in a consultation paper that was published by Northern Ireland Law Commission in November 2014. This notes the current state of the law and contrasts it with the law in England and Wales under the Defamation Act 2013. See http://www.nilawcommission.gov.uk/final_version__defamation_law_in_northern_ireland_consultation_paper_-_nilc_19__2014_.pdf. It is important not to become too fixated on the significance of the Defamation Act 2013, precisely because it does not apply in Northern Ireland. In general policy terms, there is an argument that the “old/unreformed” libel laws (still relevant to NI) are somewhat restrictive of free speech, in contrast to the (new/reformed) legislation (applicable in England and Wales), which is said to slightly favour freedom of expression. This debate does, however, to and fro, and views within it vary. Differences between (old) NI law and the (new) law surrounding the 2013 Act are mentioned below but overall, and regardless of the statutory base, three main questions remain to be asked in defamation actions in any of the jurisdictions in the UK: 4. Is C a person who can sue in defamation? 5. Has D published a statement defamatory of C which has been (re) published or communicated to others? 6. If so, has D a good defence? Who can sue? Very little restriction here, although it has been held that neither local government (Derbyshire CC v Times Newspaper [1993] AC 534) nor political parties can sue in defamation (Goldsmith v Bhoyrud [1997] 4 All ER 268). Can individual politicians’ sue? Yes. Can a deceased’s estate sue in defamation? No = can’t libel the dead. Can a company sue? Yes, as it has a business reputation. (Note that, under section 1(2) of the Defamation Act 2013 (in England and Wales) a company can only sue if it can show that the article in question has caused or is likely to cause them “serious financial loss” – this is true irrespective of the

nature of the defamatory statement.) Has D published a statement defamatory of the claimant which has been (re) published or communicated to others? This question involves THREE elements: (1) Is the statement defamatory? (2) Does it refer to C? (3) Has the statement been published? (1) On the first point, a statement is defamatory if it harms a person’s reputation either directly or by innuendo. The classic expression of the relevant (objective) standard can be found in Sim v Stretch [1936] 2 All ER 1237, 1240, per Lord Atkin: did the statement “tend to lower the plaintiff in the estimation of right-thinking members of society generally?” In other words, the test is whether the reasonable person would view the statement as defamatory on the particular facts of the c...