Defamation Flashcards
(24 cards)
1
Q
Defamation - Topics
A
- Elements of Defamation
- Publication
- Publication on the Internet
- Defamatory Statement
- Identifying the Plaintiff
- Defences
2
Q
Elements of Defamation
A
- Publication
- Defamatory Statement
- Identifying the Plaintiff
- Absence of a Defence
3
Q
Publication
A
- Communication to a third party in any form: written, spoken, art, etc.
- Evans v. Carlyle [2008]: In a boundary dispute, a graffiti with a defamatory statement on a wall in public view accepted as publication
- Repeating / reproducing someone else’s statement may amount to publication
- The maker of offending statement will be liable where it is published to a third party, if such publication was reasonably foreseeable
- Paul v. Holt (1935): A private letter addressed to “Mr Paul” was opened by his brother. The letter held to be a publication as the defendant knew another Mr Paul lived at the same address and was negligent in addressing the letter only by surname
4
Q
Publication on the Internet - Case Law & Legislation
A
- Bunt v. Tilley [2007]
- Metropolitan International Schools v. Designtechnica [2011]
- Tamiz v. Google [2012]
- S 5 of the Defamation Act 2013 in England
- S 18 of the E-Commerce Directive Regulations
- S 27 of the 2009 Act
5
Q
Bunt v. Tilley [2007]
A
- Internet service providers only passively facilitating postings on the internet could not be deemed to be a publisher.
- “it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility,”
6
Q
Metropolitan International Schools v. Designtechnica [2011]
A
- Search results on Google did not amount to publication.
- The process was automated, & the search inquiry was framed by the user.
- The results were displayed without any human input.
7
Q
Tamiz v. Google [2012]
A
- Google sued for defamatory comments posted on its platform by anonymous bloggers.
- EWCA suggested that due to its ability to remove the content, akin to a notice board situation, Google could be considered a publisher if it didn’t remove the content within a reasonable time after having been notified.
8
Q
Publication on the Internet - Legislation
A
- S 5 of the Defamation Act 2013 in England: a “platform defense” can be defeated by showing i) it was impossible to identify who posted, ii) notice was given to the operator, but it iii) failed to adequately respond to the notice of complaint
- S 18 of the E-Commerce Directive Regulations: An ISS shall not be liable if no actual knowledge or awareness or, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information”
- S 27 of the 2009 Act: Defence of Innocent Publication
9
Q
Defamatory Statement - Definition & Case Law
A
- Section 2 of the 2009 Act: A statement that “tends to injure a person’s reputation in the eyes of reasonable members of society”
- Vulgar abuse: Hickey v. Sunday Newspapers
- Words can change meaning: Reynolds v. Malocco
- Implication of criminality: de Rossa v. Independent Newspapers [1999]
- Words not to be Taken in Isolation: Charleston v. News Group and Gilchrist v. Sunday Newspapers
- Innuendo: False innuendo, True innuendo, and McAlpine v. Bercow
10
Q
Hickey v. Sunday Newspapers
A
- Vulgar abuse: may not be considered defamatory.
- “Twink” referred to the plaintiff as a “whore” and the newspaper repeated this term.
- Held that, based on context, the term was used as a form of vulgar abuse and was not intended to be understood in its literal sense.
11
Q
Reynolds v. Malocco
A
- Words can change meaning
- The defendant argued the term “gay” meant a lively and cheerful person.
- The court held it was “an absurd proposition to put to the Court in 1998”.
12
Q
de Rossa v. Independent Newspapers
A
Article suggesting a politician was involved in or tolerated serious crime, supported anti-Semitism was defamatory.
13
Q
Charleston v. News Group
A
- An article featured photographs with plaintiffs’ faces superimposed on the near-naked bodies of models in pornographic poses. The text of the article criticised the makers of a pornographic computer game.
- HoL held that a defamation claim can’t be based on headlines or photos in isolation from the accompanying article.
- The publication should be evaluated by reference to the response of the ordinary, reasonable reader to the entire publication.
14
Q
Gilchrist v. Sunday Newspapers
A
- IECA held that “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
15
Q
False innuendo
A
- Defamatory meaning in between the lines of the statement.
- Byrne v. RTE: A documentary about disreputable and fraudulent personal injury claims showed a document with the letterhead of the plaintiffs’ firm of solicitors.
16
Q
True Innuendo
A
- Statement not defamatory on its face, only in light of extrinsic facts.
- Cassidy v. Daily Mirror: Photo of a married man with another woman and caption saying they got engaged. Implied immoral conduct to those who knew the facts.
17
Q
McAlpine v. Bercow
A
- “Why is Lord McAlpine trending? innocent face”
- Held: the tweet linked the claimant to Newsnight allegations. Defendant treated as if she had repeated those allegations, with addition of his name.
- The tweet bore an innuendo that Claimant was a paedophile.
18
Q
Identifying the Plaintiff
A
- s. 6(3) of 2009 Act: “A defamatory statement concerns a person if it could be reasonably understood as referring to him or her”
- Sinclair v. Gogarty [1937]: Identification can be indirect. Dublin art dealers identified indirectly in a book as “two Jews in Sackville Street”.
- Cannot defame the dead, unless proceedings started when the plaintiff was alive
19
Q
Defences
A
- Truth
- Absolute Privilege
- Qualified Privilege
- Fair and Reasonable Publication on a Matter of Public Interest
- Honest Opinion;
- Offer of Amends
- Apology
- Consent
- Innocent Publication
20
Q
Truth
A
- Full defence. Doesn’t matter how damaging, if it’s true in all material respects.
- Alexander v. North Eastern Railway Company (1865): a statement that a person was convicted, fined £1 and sentenced to three weeks’ imprisonment was held substantially true, even if the sentence was only two weeks’ imprisonment.
- Depp v. News Group: A publisher succeeded in defence of truth to a defamation claim following articles alleging physical abuse. The court was satisfied that the great majority of the alleged assaults had been proved to the civil standard.
- Saying that “it’s rumored that…” is not a defence. Not only one must prove the rumours were true, but also that there were in fact such rumours circulating around
21
Q
Privilege
A
- Absolute Privilege: Limited to members of Houses of the Oireachtas; statements made in Court by judge/witness, EU Parliament and Constitutional privilege
- Qualified Privilege: Where a person has a legal, moral or social duty/interest in making the statement, to persons who have a corresponding duty/interest in receiving the information. Such statements must be made without malice.
22
Q
Fair and Reasonable Publication on a Matter of Public Interest
A
- Statement was published in good faith, in the course of discussion of a subject of public interest, discussion of which was for the public benefit
- See Section 26 of the 2009 Act
23
Q
Honest Opinion
A
- If the opinion was honestly held and related to a matter of public interest
- Convery v. The Irish News [2008]: Defendants published a critical review of the plaintiff’s restaurant. Allegations that the cola was “warm and watery” and the “chicken marsala was inedible” were held to be statements of opinion.
24
Q
Innocent Publication
A
- Was not the author, editor or publisher of the statement
- Took reasonable care in relation to the publication of the statement
- No knowledge and no reason to believe that caused/contributed to the defamation
- E.g. newsagent selling newspapers containing defamatory statements. Or Tweeter
