Defamation Flashcards

Question

Evans v. Carlyle [2008] IEHC 143

Answer 1

concerned a boundary dispute between two neighbours. The Evanses had recently obtained planning permission to which Mr Carlyle objected. Mr Carlyle wrote graffiti on the gable wall of his house in Howth, which was within public view. The alleged defamatory statement was: “Thomas Evans beauty queen writes bogus reports for dummy planning application”. The plaintiff distributed beauty products and the defendant claimed he wrote “beauty queen” in order to “wind him up”. The plaintiffs succeeded in the Circuit Court in a claim for defamation in respect of the allegation he had made a false application for planning permission.

Answer 2

An apparently defamatory statement can be rendered neutral by reference to the context in which is it made. It was said if a person said “you thief”, but then qualified this statement by the words: “you stole my heart”, this would not be defamatory.

Answer 3

The defendants published material comprising an article with headlines, photographs and captions. The photographs showed the plaintiffs’ faces superimposed on the near-naked bodies of models in pornographic poses. The article, which made it clear that the photographs had been produced without the knowledge or consent of the plaintiffs, castigated the makers of a pornographic computer game. The plaintiffs sued for defamation. It was held by the House of Lords that a claim for libel could not be founded on a headline or photograph in isolation from the related text. The question whether an article was defamatory had to be answered by reference to the response of the ordinary, reasonable reader to the entire publication; and that the ordinary reader could not, by a reading of the whole article, have gained the impression that the plaintiffs were involved in making pornographic films.

Answer 4

The test to be applied by the court is whether the article, when viewed objectively by the reasonable reader, is capable of giving rise to the pleaded meanings (see Hardiman J. in Travers). ... Clarke M.R. in Jeynes v. News Magazines Limited [2008] EWCA Civ 130 helpfully summarised the principles relevant to how the meaning of words should be determined as follows:- “(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation...’.”

Answer 5

UK Supreme Court considered what the words “He tried to strangle me” would convey to the ordinary reasonable reader of a Facebook post. The words had been posted on Facebook by the defendant, the plaintiff’s former wife, during an exchange with the plaintiff’s new partner. The plaintiff argued that the word “strangle” meant that he tried to kill her. The defendant denied that the words imputed an intention to kill but meant rather that he had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed. In the High Court, relying on the Oxford English Dictionary definition of the verb “strangle”, the judge found in favour of the plaintiff. This finding was upheld by the Court of Appeal but ultimately overturned by the Supreme Court. Lord Kerr in the Supreme Court warned of the danger of relying on dictionary definitions to provide a guide to the meaning of a defamatory statement. He said (at [25]): That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made.

Answer 6

An apparently innocent statement may be defamatory if the plaintiff can show that there is a hidden, secondary, meaning to the words which makes it defamatory.

Answer 7

One must consider, not what the words are, but what conclusion could reasonably be drawn from it, as a man who issues such a document is answerable not only for the terms of it but also for the conclusion and meaning which persons will reasonably draw from and put upon the document.

Answer 8

The secondary meaning can be shown by examining the words themselves (false or popular innuendo) or by proof of extraneous matters (true or legal innuendo). Publishing a true and accurate story in a misleading manner can also constitute innuendo.

Answer 9

To say that the police are investigating X’s affairs, might imply that X is under suspicion of having committed a crime. This implication might be deduced from the words themselves. No amount of deduction, however, could make the statement that “X entered No. 10” defamatory without additional facts being proved, as for example, that No. 10 is a brothel. These situations are known in law as innuendoes. This means N0. 10 is synonymous for a brothel, and once the plaintiff brings that fact into play he can argue that it was defamation (that he does not go to brothels and did not go to one). The former type of innuendo, where the defamatory meaning can be implied from the words themselves, is known as a false innuendo (popular innuendo), whereas the latter, where extrinsic or additional information must be produced, is known as true innuendo (legal innuendo). She likes sausage.

Answer 10

Where defamatory meaning only arises because of facts which are known to the recipients there is said to be an innuendo. This has two principal consequences. First the plaintiff must plead the special meaning he contends the words have and prove that the facts upon which this meaning is based were known to at least one other person to whom the words were published. Second the meaning resulting from those words may give rise to a cause of action separate from that (if any) arising from the words in their ordinary and natural meaning, because it is an extended meaning not present in the words themselves.

Answer 11

defendant broadcast a documentary on disreputable and fraudulent personal injury claims. In one scene a document with the letterhead of the plaintiffs’ firm of solicitors was shown. The scene was played over an interview which referred to a group of solicitors allegedly responsible for bringing fraudulent claims. The plaintiffs sued for libel and claimed it had been alleged or imputed that the plaintiffs were dishonest solicitors engaged in facilitating fraudulent claims. The plaintiffs claimed a number of persons would have recognised their letterhead. MacMenamin J said that this was a case of false or popular innuendo: Primarily the latter is the situation here, where there is a publication to the general public at large on matters which by the very context and circumstances of the publication, demonstrate an imputation defamatory in nature, that is, to publish allegedly of the plaintiffs, that they had been guilty of sharp practice or other disreputable or dishonest or incompetent conduct in their profession.

Answer 12

where a newspaper article claimed the plaintiff, who was a professional footballer, never used his right foot except for balancing on. The plaintiff claimed there was an innuendo that he was not competent to be picked as an international player. This meaning could be taken from the words of the article themselves.

Answer 13

The defendant published a photo of the plaintiff’s husband, Mr Cassidy, (also known as Mr Corrigan), with another woman and stated the couple had recently become engaged to be married. This was false, although the defendant claimed it was an innocent mistake. Mrs Cassidy sued for defamation. She claimed her friends thought she had deceived them and was “masquerading as Cassidy's wife while cohabiting with him as his mistress”.

Answer 14

The defendant published a group photograph of former employees and their spouses on an outing of the Bord na Móna Pensioners’ Association. The photograph carried a caption which wrongly identified the plaintiff (who was a widow) as being the wife of a Mr H Cummins who also appeared in the photograph. Publication took place in Scéal na Móna, an internal Bord na Móna journal, distributed several times a year free of charge to employees and pensioners of Bord na Móna. The plaintiff claimed that the photograph and caption meant and were understood to mean, by way of innuendo, that she was a person of loose morals, engaged in an illicit and immoral sexual liaison with Mr Cummins, or was passing herself off as his wife.

Answer 15

The statement must refer to the plaintiff. If the statement does not identify the plaintiff directly the plaintiff may still be able to prove that the statement referred to him. Section 6(3) of the Defamation Act 2009 provides that a “defamatory statement concerns a person if it could reasonably be understood as referring to him or her”. The burden is on the plaintiff to prove that the statement referred or was capable of referring to him or her.

Answer 16

he plaintiff was not named in the book “As I Walked Down Sackville Street” (described by the plaintiff as “a reservoir of filth and the grosser forms of vulgarity”) by Oliver St J Gogarty. The reference was to “two Jews in Sackville Street”. The plaintiff claimed this was a reference to him and his twin brother, two well-known art dealers in Dublin at the time, even though the business was carried on at Nassau Street and later Grafton Street, not Sackville Street.

Answer 17

Star Sunday newspaper published an article about two brothers “dubbed the ‘Fat Heads’”, who were “leading the underworld’s most dangerous armed gang” and were being investigated by CAB. These persons were not named in the first article published. In a second article published a few months later, the plaintiffs claimed photographs of them were published and they were named and the article also referred to an investigation by CAB. The Supreme Court accepted that the second article referred to the first article. It was held the second article was capable of identifying the plaintiffs as the subjects of the first article.

Answer 18

Where a person publishes a defamatory statement concerning a class of persons, a member of that class shall have a cause of action under this Act against that person if – (a) by reason of the number of persons who are members of that class, or (b) by virtue of the circumstances in which the statement is published, the statement could reasonably be understood to refer, in particular, to the member concerned.

Answer 19

ection 39 of the Defamation Act 2009 provides that a cause of action existing at the time of a person’s death survives for the benefit of his or her estate.

Answer 20

1. Truth 2. Absolute Privilege 3. qualified privilege 4. Fair and reasonable publication on matters of public interest 5. Honest opinion 6. Offer of Amends 7. Apology

Answer 21

- only defamatory if untrue -governed by section 16(1) - Section 16(2) Where there are two defamtory statemenst but only one proves to be defamatory- you can only claim for damages for the extend that it was defamatory.

Answer 22

Pl argued that allegations that he had to pay a 1 pound fine and three weeks in prison were untrue. Reality he paid 1 pound and two weeks. Held not defamation because widely true.