Defamation (TORT) notes to revise from PDF

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Summary

DEFAMATION Whilst negligence concerns the allocation of cost of accidents and provide compensation, defamation aims to protect one’s reputation from harm by words, with the intention of providing compensation or injunction. Aims to protect the reputation of somebody from harm by words. A statement i...

Description

DEFAMATION •

Whilst negligence concerns the allocation of cost of accidents and provide compensation, defamation aims to protect one’s reputation from harm by words, with the intention of providing compensation or injunction.

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Aims to protect the reputation of somebody from harm by words. A statement is defamatory if it tends to lower the claimant in the estimation of right-thinking members of society. The statement does not need to be false, it could be true.

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Can get us either compensation or injunction

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Interferences with freedom of speech (Art 10 of ECHR). There needs to be a balance of yes, protecting one person’s privacy/reputation, but also promoting freedom of expression.

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The burden is on the person saying anything derogatory to justify what they have said. Rather than putting the burden on the person insulted to prove that the insult was undue.

The tort of defamation is divided into two causes of action: 1. Libel •

Libel is a defamatory statement in permanent form (written). This includes: Film: Youssoupoff v Metro-Goldwyn-Mayer (1934), Waxworks: Monson v Tussauds Ltd (1894) 1 QB 691, Photographs: Plumb v Jeyes Sanitary Compound 1937, Music: Cosmos v BBC, Drawings: Tolley v Fry & Sons [1931]. Also newspapers/letters etc.

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Includes publications in public, TV and radio broadcasts (Defamation Act 1952), and theatre performances (Theatres Act 1952)

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Monson v Tussauds 1894 → it was libellous for the D to exhibit waxwork of the C holding a gun in an anteroom to the chambers of horrors, the message being that the C was an evil criminal. His previous prosecution in Scotland for murder had been returned as ‘not proven’ by the jury.

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A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the C → Defamation Act 2013 s.1(1)

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So in libel, the damage must be serious (s1) but does NOT need to have economic or material value UNLESS you are a company where you must show ‘serious financial loss’.

2. Slander - Defamation in a temporary form like words spoken in a conversation -

If the claimant loses his job (Coward v Wellington 1836) or suffers diminished trading profits as a result of the slander then that will be special damages

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Slanderous statement is repeated = Slipper v BBC [1991]: the court held that the D can be liable for any re-publication of the defamatory material as long as it was reasonably foreseeable Mcmanus v Beckham 2002 → The defendant (Victoria Beckham) was visiting a memorabilia shop. She saw autographed photos of her husband for sale. She thought they were forged so warned other customers not to buy them. Her words were reported in the press and, as a result, the business went insolvent.The defendant was held to be liable for her statement and the repeated words in the press, because the claimant suffered a measurable economic loss and it was a foreseeable that her words would be published (due to her status) and therefore damage is likely to occur

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WHAT COUNTS AS ‘SERIOUS HARM’? • •

Injury to feelings alone will not be sufficient in the absence of serious harm to reputation Mass media publications of seriously defamatory allegations are likely to render the need for evidence of serious harm unnecessary.

WHO CAN SUE? •

Persons and corporations

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Organs of government, local government, political parties CANNOT. Rationale being that inhibition of freedom of speech here is not in the public interest. Known as the ‘chilling effect’ in the case of Derbyshire CC v Times Newspapers [1993] → If a government authority could bring actions in defamation that would silence political debate and be damaging to democracy. Lord Keith says there is “no public interest” in allowing government authorities to sue for libel as it would “place an undesirable fetter on freedom of speech”.

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Political parties are also unable to bring a claim, for the same reasons: Goldsmith v Bhoyrul [1998]. However, politicians and individuals who work for a Government body can bring a claim (even if the matter relates to the way they carry out their duties): Bookbinder v Tebbitt [1989] → Bookbinder was councillor of Derby County Council and was suing Tebbit for comments made during a political meeting. The case was not struck out on the ground that he was a public official. In other words, politicians and individuals who work for a Government body can bring a claim for defamation.

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Universities are not public bodies for the purposes of bringing a claim for defamation, so they can bring claims in defamation and so can the members of staff: University of Salford v Duke [2013]

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Neither can a dead person ( you can only defame someone who is alive).

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A body which trades for profit must show that the defamation has caused or is likely to cause serious financial loss ( this to protect commercial reputation).

INNUENDOS •

Jury should first consider the alleged defamatory statement in their ‘natural and ordinary’ sense. However, occasionally the claimant may allege there is an additional ‘innuendo’ meaning. So, it is up to the judge to decide whether a statement is capable of being defamatory (whether through its ordinary meaning or by innuendo).

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It is no defence to say the words are, if taken literally, true or do not defame the claimant, if a reasonable person is capable of reading between the lines and drawing any logical conclusions from the words or other representation. For example, in Monson v Tussauds (1894) placing a waxwork close to the ‘Chambers of Horrors’ seems innocent, but was defamatory because it could be implied the person was a murderer.

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True/legal innuendo → This arises in circumstances where the claimant alleges that the statement is defamatory because specific facts known to the reader give to the statement a meaning other than, or additional to, its ordinary meaning. In other words, with true/legal innuendo the C must prove the facts were known to some people (Fulham v Newcastle Chronicle and Journal Ltd) and that those facts were in existence and known to those people at the time of the publication (Grapelli v Derek Block (Holdings) Ltd [1981]). So, a true or legal innuendo is a statement which becomes defamatory when certain extrinsic/outside facts become known. See, for example, Tolley v Fry and Russell v Notcutt (1896).

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False/popular innuendo → A false or popular innuendo is one where the words published have an alternative implied meaning, other than the literal meaning. The question would be whether a reasonable reader would “read between the lines” (Lewis v Daily Telegraph [1964]). A false innuendo differs from a true innuendo in that the pleader of a false innuendo does not generally need to set out any extrinsic facts in support of his plea. See the case of Rubber Improvements v Daily Telegraph [1964]

Three core elements need to be proved: Defamatory meaning, referring to the claimant, publication Firstly, to bring forward a claim for defamation, S.1 Defamation Act 2013, is that there has to be SERIOUS HARM. It has to be sufficiently serious, nothing silly like insults. This is required for both libel and slander. On top of seriousness, slander additionally requires proof of special damage (being fired, loss of customers etc.) Libel does NOT require proof of special damage on top of seriousness. However, libel is NOT actionable per se. If we are dealing with a body that trades for profit, there is no ‘serious harm’ unless caused or likely to cause serious financial loss > libel against (commercial, for profit) companies = proof of special damage

WHAT DOES THE STATEMENT MEAN? •

You first need to establish the natural and ordinary meaning of the words.

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Theedom v Nourish Training 2015 → It does not matter what the author meant to say but rather what meaning would be understood by reasonable people.

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Different readers, as in poetry, can understand things in different ways but in defamation law, there can only be one natural and ordinary meaning of a statement. The court needs to identify the meaning (known as the ‘single meaning rule’).

1. IS THE STATEMENT DEFAMATORY? •

A statement is defamatory if it tends to lower the claimant in the estimation of rightthinking members of society.

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Leading test is → ‘do the words tend to lower the claimant in the estimation of right-thinking members of society generally → Sim v Stretch 1936

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Right thinking members of society should think → Byrne v Deane 1937

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Ordinary reader → Lewis v Daily Telegraph 1964

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It was defamatory for a critic to call an actor ‘hideously ugly’ → Berkoff v Burchill 1996

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It is no defence that the D did not intend the statement to be defamatory. The moral of Baturina is to publish an alleged fact at your peril. Even if you think the fact is harmless, it may turn out to be derogatory especially in the modern world which is so multicultural. → Baturina v Times Newspapers Ltd 2011

2. DOES THE STATEMENT REFER TO THE CLAIMANT? •

There is of course no difficulty if the statement refers to the claimant by name. There might be a bigger issue when a statement is made about an unnamed person.

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Morgan v Odhams Press Ltd 1971 → newspaper alleged that a girl had been temporarily kidnapped but in fact she had been staying with the C. Court held article could be defamatory of the C to those who knew that the girl was staying with him at the time since it implied, he was a kidnapper.

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Knuppfer v London Express Newspaper Ltd 1944 → If the statement defames a group and the C is a member of that group, the C cannot sue unless the statement was capable of referring to them personally (might be the case if the group is very small/ allegation is specific). Basically, as an example, you cannot say all lawyers are thieves as this is too general to be defamatory of any particular lawyer.

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Again, no defence that the D did not intend to refer to the claimant. -

Hulton & Co v Jones 1910 → a newspaper published a humorous story about a fictional character called Artemus Jones, which turned out to be the name of a real barrister. Court held that some reasonable people might believe that the article referred to him.

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Newstead v London Express Newspapers ltd 1940 → newspaper reported a conviction for bigamy of Harold Newstead of Camberwell – which was true but there was a second Harold Newstead of Camberwell who could sue for defamation (newspaper needed to distinguish more clearly between the two).

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Contrast O’shea v MGN Ltd 2001 → newspaper published an advertisement for a pornographic website. The fact that the model in the photo happen to look like the C was insufficient to constitute defamation of the C.

3. PUBLICATION •

The D must publish the defamatory statement to a third party (does not suffice merely fr one person to tell their spouse).

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The test is: was it reasonably foreseeable that a third party would see the statement? Yes, said the court in Theaker v Richardson 1962 → when the D sent an abusive letter to the wife which was opened at home by the husband who mistook the brown envelope for an election circular. If you were to send an abusive letter it would be better to mark it as private and confidential and not to send it by postcard which anyone can read. No said the court in Huth v Huth 1915 → when the mail was opened by the butler, out of curiosity, but in breach of his duty.

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A person might be liable for publishing a defamatory statement even though they were not the original author.

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Repetition by a third party

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Where a 3rd party repeats a defamatory statement it is generally no defence to say that you were merely repeating another’s words. The repeater of the libel is liable; and the original statement maker is also liable if the repetition is foreseeable (but in general, the original statement maker won’t be liable for any repetition): McManus v Beckham [2002]

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Slipper v BBC [1991]: Prima facie the court will treat the unauthorised (unforeseeable) repetition of a libel as a novus actus interveniens breaking the chain of causation between the original publication and the damage suffered by the injured party through repetition or republication (Slade LJ)

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If the matter is being reported because it is in the public interest, then this will provide a narrow defence for those repeating a defamatory statement. If it is published simply for the allegation, then it IS defamatory. E.g. if one politician defames another politician there is a public interest in reporting the fact. If the report is made neutrally then the defendant may rely on the statutory public interest justification

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Republishing the same defamation

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An action for defemation must be brought within one year from the date on which the cause of action accrued (Limitations Act 1980 s.4A) The court has a discretion if equitable not to apply that time limit (s.32A) Where a D publishes a statement and then subsequently publishes another statement which is substantially the same, time runs only from the first publication, it does not start again from the subsequent publication (S.8) Whether a subsequent statement is ‘substantially’ the same or instead materially different, the court will consider the prominence and extent of the subsequent publication (S.8(5)

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REMEDIES 1. Injunction - Court may grant an injunction prohibiting the continuation/republication of the defamatory statement. - It is highly unlikely that an injunction will be granted though. - According to Bonnard v Perryman 1891, a threat to the right of free speech would only be justified in the most exceptional cases. This is now enhanced by the Human Rights Act 1998, s.12(3)

2. Damages Compensatory damages - John v MGN Ltd 1997 → newspaper published a story about Elton John claiming that he had an eating disorder. Newspaper made no effort to verify the accuracy of this and so C was awarded damages. Aggravated damages -

Are available for additional injury to the claimant’s feelings e.g., refusing to apologise, cross-examining the C in court in wounding or insulting way etc.

Exemplary damages (not routinely awarded) (351) -

Damages might be available where the D, knowing that the defamatory statement to be false, or with reckless disregard, publishes the statement anyways because the anticipated profit to be gained (from selling the book) will outweigh the possible damages.

DEFENCES 1. Truth - By section 2 of the Defamation Act 2013 → it is a defence to show that the imputation conveyed by the statement complained of is substantially true. -

Substantially true refers to cases such as : Alexander v North Eastern Rly Co 1865 → D reported that the C had been convicted of dishonesty with three weeks’ imprisonment, this being substantially true even though the sentence was only two weeks’ imprisonment. Begg v BBC 2016 → C imam was accused of preaching extremist Islam at East London mosque in 2013. This was substantially true given that he had preached extremist Islam on a number of occasions but not in the East London mosque, nor in 2013.

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If a defamatory statement has multiple implications and some are shown to be substantially true, the defence succeeds if the remaining implications do not seriously harm the Cs reputation → Defamation Act 2013 s.2(3)

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If statement is partially true, that is no defence but it might reduce the amount of damages payable because the Cs reputation would have only been partially tarnished.

2. Honest opinion -

Opinions – as opposed to assertions of fact – are not capable of being defamatory. If they were, then criticism and commentary on matters of opinion would be impossible.

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By section 3 of the Defamation Act 2013 → it is a defence that the statement was one of opinion (rather than fact), but only if an honest person could have held that opinion, on

the basis of any fact which (1) existed at the time or (2) was asserted in a privileged statement. -

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The statement of opinion must also include the basis of the opinion (s.3(3). This means that the opinion must indicate the facts upon which it comments so that the reader can understand what the comment is about. But, it is not necessary to give sufficient details for the reader to make their own judgments e.g. it is not sufficient to simply say ‘viktor is a disgrace’. To plead honest opinion, a D needs to explain why: ‘viktor is a disgrace because he does not revise for his exams’.

s.3 of the defamation act (Honest opinion): (1) It is a defence to an action for defamation for the defendant to show that the following conditions are met. (2) The first condition is that the statement complained of was a statement of opinion. (3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion (i.e. you have to give a general indication of the facts you are commenting on) (4) The third condition is that an honest person could have held the opinion on the basis of — o (a) any fact which existed at the time the statement complained of was published; o (b) anything asserted to be a fact in a privileged statement published before the statement complained of. (5) The defence is defeated if the claimant shows that the defendant did not hold the opinion -

So the opinion must be based on facts, and those facts must have existed when the opinion/comment was held.

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If the D has published another’s opinion, the defence is lost if the C shows that the D knew or ought to have known that the other person did not hold that opinion (s.3(6).

3. Public interest - Reynolds v Times Newspapers 2001 → an accusation was made The Times that the former Prime Minister of Ireland had lied to parliament. Following a jury verdict in his favour, which awarded him 1p in damages, the D appealed on the issues of the availability of the defence of qualified privilege. HOL considered this an issue in the context of freedom of expression and the public’s right to know under art 10 ECHR ( basically reynolds defence (the old public interest defence) has been abolished and replaced by the public interest defence through the Defamation act 2013). -

Sections 4(2) and 4(4) of the Defamation Act 2013 require the court take ‘all the circumstances’ into account, and to make appropriate allowance for editorial judgement, when deciding whether or not a publication is in the public interest (and therefore not defamatory). This allows courts to look at the context and circumstances of the statement, rather than encouraging them to work their way through a set of specific questions.

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This was refined by Jameel v Wall Street Journal Europe Sprl 2006 → This concerned an article suggesting that the claimant's bank accounts were involved in funding terrorism,

which was found to be defamatory.The Court of Appeal rejected the newspaper’s defence of qualified privilege. However, the House of Lords, focusing...