defamation

Question 1

What is defamation?

Answer 1

Protects a person’s reputation against libel and/or slander
One of the few civil actions still tried by a Jury ( but in reality however , very rare now since Defamation Act 2013)

Question 2

what are the two hr defamation has to balance?

Answer 2

Freedom to expression (Art 10) against an individual’s desire to protect their reputation (sometimes Art 8)

Question 3

what is the Law that governs defamation?

Answer 3

• Common law
• Defamation Act 1996
  AND new law:
• Defamation Act 2013

Question 4

what are the Explanatory Notes of Defamation Act 2013?

Answer 4

• Explanatory Notes explicitly state that the Act does not replace the common law
• The new provisions are intended to mirror the common law position
• The courts are expected to use existing case law to interpret the Act

Question 5

what is the purpose of the Defamation Act 2013?

Answer 5

• to simplify – many think Law is still overcomplicated
  – reduce how easy a claim is
  – to deal with online element – many academics think it has not gone far enough

Question 6

what are the two types of defamation?

Answer 6

slander and libel

Question 7

what are the four elements to a defamation case? (how you should answer a question)

Answer 7

1) Is the statement defamatory? Does it cause or is likely to cause serious harm?
2) Does it refer to the claimant?
3) Has it been published?
4) Do any defences apply?

Question 8

what does ‘is the statement defamatory?’ (1st element to a defamation case) mean?

Answer 8

Common law: Sim v Stretch - does the article lower the person’s reputation in the minds of right thinking members of society
It must lower the person’s reputation in the eyes of people generally, rather than in relation to a group

Question 9

what cases shows S.1 of DA 2013 in ‘is the statement defamatory?’ (1st element to a defamation case)

Answer 9

Monroe v Hopkins (2017)

Question 10

what happened in Monroe v Hopkins? (1st element to a defamation case)

Answer 10

Katie Hopkins confused another activist for Monroe and tweeted ‘ defaced any war memorials lately?’
Is this defamatory?
Judge said: you do not have to provide evidence of serious harm, it can be inferred, especially the more serious the allegation

Question 11

what changes did S.1(1) DA 2013 make to ‘is the statement defamatory?’ (1st element to a defamation case)

Answer 11

now states the C must prove ‘serious harm’
this clearly is designed to make claims more difficult to succeed

Question 12

what case supports that defamation must lower the person’s reputation in the eyes of people generally? (1st element to a defamation case)

Answer 12

Tolley v Fry

Question 13

what happened it Tolley v Fry? (1st element to a defamation case)

Answer 13

amateur golfer endorsed Fry’s chocolate, which was against the rules of amateur golf to be paid so he could no longer compete in his league.

Question 14

what happened in the case Byrne v Deane? (1st element to a defamation case)

Answer 14

Mr. Byrne had reported to the police that his local golf club had a gambling machine. A notice appeared in the golf club which read ‘he who gave the game away, may he byrne in hell and rue the day’
Byrne sued in defamation
Unsuccessful – court said it’s not a bad thing to report a crime

Question 15

are Innuendos covered under if the statement defamatory and what case shows this? (1st element to a defamation case)

Answer 15

Innuendo and implication can also amount to a defamatory statement
Monson v Tussauds

Question 16

what happened in Monson v Tussauds? (1st element to a defamation case)

Answer 16

D. acquitted of murder, but a waxwork of D holding a gun was made and placed in room adjoining ‘chamber of horrors’
C of A: this was defamatory

Question 17

what does ‘does it refer to the C?’ mean? (2nd element to a defamation case)

Answer 17

whether a hypothetical reasonable reader, having knowledge of the circumstances, would believe that the article was referring to the C?
C may need to prove that people knew the additional information to know it was them

Question 18

What happens when the statement refers to a group or class of persons rather than an individual case law? (2nd element to a defamation case)

Answer 18

Eastwood v Holmes (1858)
“All lawyers are thieves” = Not defamatory
But in Knupffer v London Express Newspapers (1944)
Directed at political group, claimed they support Hitler
HoL – “no general rule preventing a lawsuit as
long as the statement can be understood
as referring to individuals within a group

Question 19

What happens when there is more than one person with that name? (2nd element to a defamation case)

Answer 19

Newstead v London Express Newspaper (1940)
* Published a story on a bigamy trial
* Referred to as “Harold Newstead, 30 year old
Camberwell man”.
* Claimant was Harold Newstead, aged about 30, who
assisted his father at a pub in Camberwell.
* Held – Defamatory if a jury thought a
reasonable man would believe it referred to the C

Question 20

what does ‘Has it been published?’ mean? (3rd element to a defamation case)

Answer 20

Needs to be communicated to a third party
Exceptions:
- Husband and wife -> Wennhak v Morgan
- unintended publication –> Theaker v Richardson (1962) and Huth v Huth (1919)

Question 21

what does S.8 DA 2013 state? (3rd element to a defamation case)

Answer 21

provides that you cannot sue the same publisher for the same material – so protects from archived online articles

Question 22

what happened in the case Theaker v Richardson? (3rd element to a defamation case - unintended publication)

Answer 22

a letter was read by the claimant’s husband. This was reasonably foreseeable that the husband would read the letter despite the fact that it was addressed to the claimant.

Question 23

what happened in the case Huth v Huth? (3rd element to a defamation case - unintended publication

Answer 23

a butler read a letter that was addressed to the owner of the house. This material was held not to be defamatory because it was unforeseeable that the butler would open the letter.

Question 24

what are the ‘defences’ for defamation? (4th element to a defamation case)

Answer 24

• Truth – S.2(2) DA 2013 Statements of fact NOT opinion are permitted
• Honest Opinion – S.3 DA 2013
• “publication on a matter of public interest” S.4 DA 2013
• Privilege Complete defence S.6 DA 2013

Question 25

what is the truth ‘defence’ (4th element to a defamation case)?

Answer 25

Statements of fact NOT opinion are permitted under S.2
Replaces common law defence of ‘justification’
D. has to show statements are ‘substantially true’
Have to prove ‘sting’ of article is true

Question 26

what case supports the truth ‘defence’ (4th element to a defamation case)?

Answer 26

Vardy v Rooney (2022)

Question 27

what is the honest opinion ‘defence’ (4th element to a defamation case)?

Answer 27

It must be an opinion and not a fact (Facts – tend to be descriptive - Opinions – tend to be evaluative)
-> Must show how you got that opinion And that others would have arrived at the same opinion as you And that it was honestly held

Question 28

what case supports the honest opinion ‘defence’ (4th element to a defamation case)?

Answer 28

Convery v Irish News

Question 29

what happened in Convery v Irish News?

Answer 29

“the Coca-Cola was warm watery and flat” - High Court said this was a fact, reversed on appeal held to be an opinion (shows the courts sometimes find it difficult to determine)

Question 30

what is the defence of “publication on a matter of public interest” (4th element to a defamation case)?

Answer 30

Asks the question: was the publication in the public interest? The Judge decides

Question 31

what are the two types of the defence of “privilege” (4th element to a defamation case)?

Answer 31

qualified and absolute

Question 31

what is qualified privilege?(4th element to a defamation case)

Answer 31

S.6 DA 2013 – new category of QP – scientific or academic material. Must be an academic piece of research, peer assessessed. Defeated by MALICE

Question 32

what is absolute privilege? (4th element to a defamation case)

Answer 32

covers MPs speaking in Parliament (but doesn’t cover them elsewhere, also includes judges speaking in court)
Complete defence

Question 33

what did S.6 of DA 2013 create

Answer 33

the qualified privilege defence for defamation

Question 34

what is an offer of amends?

Answer 34

If offer made to put aside the case and accepted – this puts a stop to the defamation claim

Question 35

what happens if an offer of amends is rejected?

Answer 35

• If offer made and rejected by C – this will be part of a defence
• If offer made and rejected by D – this will be part of the case (Monroe)