3B.4.6 Torts of defamation Flashcards
What article does the tort of defamation restrict?
Article 10 – the right to freedom of expression.
Is UK defamation law compatible with ECHR?
Yes - in the UK, the law of defamation sets out a position that is largely compatible with ECHR.
What are the two forms of defamation?
- Libel is defamation in permanent form, including broadcasting.
- Slander is defamation in a transient form – spoken, conduct or gestures.
In defamation, the words are taken to have their normal or natural meaning.
In defamation, what must the claimant need to show?
That the statement…
- Is defamation, meaning that an ordinary person would think worse of the claimant as a result of the statement.
- Identifies or refers to him
- Is published to a third party.
Claimants must also show that the publication of the statement caused them, or is likely to cause them, serious harm. (In the case of business, serious harm means serious financial loss).
Which act governs the tort of defamation?
Defamation Act 2013
What else must a claim for slander also require?
Proof of special damage - this means financial loss was caused.
There are two exceptions to this requirement:
- A statement that the claimant has committed a criminal offence, punishable by imprisonment, such as ‘X is a thief’.
or
- Where the words are calculated to disparage the claimant in any office, profession, calling, trade or business carried on by them at the time of publication, such as ‘He is a doctor who is always amputating the wrong limb’.
Defences to a claim of defamation
- Truth
- Honest opinion
- Publication on a matter of public interest
- Internet defences
- Privilege
[Defences to a claim of defamation]
Truth
s2 of the Defamation Act 2013:
- The defendant must show that the imputation conveying is substantially true.
[Defences to a claim of defamation]
Privilege
This comes in two forms: absolute and qualified.
1. Absolute privilege applies if there are clear public policy reasons limiting freedom of speech in this context.
Such situations include:
- Statements made in the course of judicial proceedings, parliamentary proceedings or papers
- Qualified privilege covers the publication of any fair and accurate report or statement on a matter of public interest.
This defence can be defeated if there is evidence that the publication was made with malice.
Examples of statutory qualified privilege include fair and accurate reports of:
- Proceedings in public of parliament or the courts
- Courts or international organisations anywhere in the world
- A UK policy company generally meeting, or reporting.
This has been extended to cover peer-reviewed statements published in scientific or academic journals.
[Defences to a claim of defamation]
Honest opinion
s3 of the Defamation Act 2013:
- It provides a defence if the statement complained of ways of opinions which could have been held by an honest person on the basis of any fact which existed at the time the statement was published.
- If a claimant can show that the defendant did not hold the opinion, the defence will fall.
[Defences to a claim of defamation]
Publication on a matter of public interest
s4 of the Defamation Act 2013:
- The defendant has to show that the statement complained of was, or formed part, of a statement on am atter of public interest.
And:
- The defendant reasonably believed that publishing the statement complained of was in the public interest.
Whether the defendant has a reasonable belief includes:
- Attempts made to verify the truth of what is being published
- The nature of the sources of information
- The extent to which the claimant was given an opportunity to respond or comment. You will often see an article in a newspaper that ‘X declined to comment’.
[Defences to a claim of defamation]
Internet defences
There are also a number of defences available to internet intermediaries, including:
- Innocent dissemination
- A website operator’s defence
- Defences under the E-Commerce Regulations 2002
