defamation Flashcards
(18 cards)
Defamation structure
Pre-requisites
- Libel or slander?
- Justiciability
- “serious harm” threshold
- capacity of C to sue
Elements
- D made a defamatory imputation (ascertain the meaning, then determine whether it’s defamatory)
- The defamatory imputation identified C
- the defamatory imputation was published
Defences
- honest opinion
- truth
- peer-reviewed statements (academic journals)
- innocent dissemination
- public interest
- qualified privilege
- reportage
- absolute privilege
- consent and acquiescence
- offer of amends
Damages
Libel or slander
Libel = permanent; addressed to the eye
Youssoupoff v MGM Pictures Ltd: movie was libel
Smith v ADVFN plc: posting on a bulletin board (discussion forum) was libel
Slander = transient form; addressed to the ear
Clynes v O’Conner: shouting match between neighbours was slander
Andre v Price: comments made to live audience were slander
Justiciability
Wright v Ver: burden of proving s 9(2) requirements rest on C and is a high threshold to prove where there has bee multi-jurisdictional publication
Ahuja v Politika Novin I Magazini: if a statement is publised 5,000 times in England and 100,000 times in Australia, good basis that Australia is the most appropriate jurisdiction
Shergill v Purewall: English courts will not rule on religious doctrinal issues, nor intervene in a dispute concerning the regulation or governance of religious groups. Such issues fall ‘within the territory which the courts, by self-denying ordinance, will not enter’
‘Serious harm’ threshold
Now in statute: s 1(1) of 2013 Act
Jameel v Dow Jones & Co Inc: pre-2013 act, ‘game has to be worth the candle’
Lachaux v Independent Print Ltd: statute is a higher threshold than ‘real and substantial tort’
Ecclestone v Telegraph Media Group Ltd: C quoted saying ‘I am not a veggie and I don’t have much time for people like the McCartneys and Annie Lennox’- imputation not serious enough to be capable of being defamatory, no one was going to think less of C because of it
Cooke v MGN Ltd: requires serious harm to C’s reputation, not serious distress or injury to C’s feeling; in some cases evidence is not required and will be inferred, such as where C is accused, in a widely disseminated publication, of being a terrorist or a paedophile
Blake v Fox: the harm is the effect of the publication on the mind of TP, it’s an evidential process, case-specific, have to consider the actual fact, not just the meaning
Capacity of C to sue
Derbyshire CC v Times Newspapers Ltd: a local authority + public authority are not permitted to sue although an individual may sue in a person capacity; trading corporation can sue in defamatory matters which can be seen as having a tendency to damage it in the way of business
McLaughlin v Lambeth LBC: Derbyshire rule does permit individuals to sue for defamation where what is impugned is their conduct in undertaking the business of a government body
Coad v Cruze: member of a political party may sue if the publication refers to or identifies him
Hays plc & Hartley: public company (and private) may sue
Jameel v Wall Street Journal: trading corporation does not have to wait to prove it has suffered actual damages, if we were to wait, “incalculable harm” could be done in the meantime
EETPU v Times Newspapers Ltd: “unless one can attach a personality to a body, it cannot sue for defamation” (trade unions and unincorporated association have no personality of their own and so cannot sue
D made a defamatory imputation- ascertaining the meaning
Direct literal meaning
- Johnson v MGN Ltd: statement conveyed that C had lied about being injured to prevent his playing in the Boxing Day match and was disloyal to his employer (was also capable of being a legal innuendo, because someone who knew the Prem League Rules would know he’d be in breach by approaching Liverpool while under a contract)
False (popular) innuendo (inferred meaning)
- Bestobell paints Ltd v Bigg: “This house is painted with CARSONS paint”- false innuendo that C’s point was inferior and changed colour
True (legal) innuendo (external facts render the words defamatory)
- Cassidy v Daily Mirror Newspapers: announcement of a couple’s engagement seemingly innocent but some readers knew that one of the people were already married. This was defamatory of C, the person’s spouse
D made a defamatory imputation- whether the imputation was defamatory
Personal defamation
- Slim v Stretch: personal defamation may be those which lower C in the estimation of right-thinking members of society generally, by reason of some unethical, immoral, illegal, or socially harmful conduct on C’s part
- Andre v Price: example that C had committed adultery
- Chase v News Group Newspapers Ltd: allegations of criminal wrongdoing have 3 tiers, all capable of being defamatory; Chase level (1) guilty; (2) grounds to suspect, (3) grounds to investigate
Business defamation
- Thornton v Telegraph Media Group Ltd: imputations which refer to fitness or competence of C’s goods/services, which are likely to cause adverse consequences to parties/clients
- Drummond-Jackson v British Medical Association: imputations of a lack of skill/qualification/knowledge/capacity
- Leach v Independent Newspapers (Ireland) Ltd: e.g. that C committed adultery to further her business career
Lauchaux v Independent Press Ltd: objective assessment of what the ordinary reader/listener thinks
Charleston v News Group Newspapers Ltd: newspapers cannot be liable for what the headline alone says
Cassidy v Daily Mirror Newspapers Ltd: ‘liability for libel does not depend on the intention of the defamer, but on the fact of defamation’
Defamatory imputation identified C
Jeynes v News Magazines Ltd: assessed by reference to the reasonable reader who can read between the lines, but is not overly suspicious or prone to over-elaborate analysis
Baturina v Times Newspapers: where C is not named in the publication, C is referred to by means of a reference innuendo if, armed with extrinsic facts, readers would be led to reasonably believe C is the person
Hayward v Thompson: sufficient linkages between between a news article naming C, and one defaming him, may mean that C is identified in both
Coad v Cruze: ordinary reader = assumption that if D was prepared to name C in defamatory #1, he would also be prepared to in statement #2
O’Shea v MGN Ltd: it would place an ‘impossible burden’ on the publisher to check if every picture published resembled someone else who, because of the context, was defames
Mitchell v Evening Chronicle: Where D uses the wrong pic (C’s), reference is likely, particularly where the description could reasonably refer to C and not the correct party as intended
Knupffer v London Express Newspaper: for a member to sue in group defamation, where that member is not named specifically, member must prove the statement was reasonably understood as referring him
Defamatory imputation was published
Section 8: single publication rule
- cause of action accrues on the date of the first publication (rather than each separate publication giving rise to a separate cause of action)
Ibrahim v Swansea University: there can be no publication limited to C itself
Theaker v Richardson: C must establish that publication of the defamatory imputation was a natural and probable consequence of what D did- failing that, D will not be liable for the publication
Bezant v Raising: letter marked as ‘private and confidential’ but opened by family members did not establish the ‘natural and probable consequence’ test of D sending the letter
Collins Stewart Ltd v Financial Times Ltd: whole or partial repetition of the defamatory imputation by a 3rd party will entitle C to further damage against D, provided such republication was reasonably foreseeable
Gregg v O’Gara: for those websites where the number of ‘hits’ can be ascertained, then publication to readers of that website is established
Tamiz v Google Inc: web host simply provides a platform for other users to upload material and is to be treated as facilitator- it is neither a publisher not an entity which authorised publication of the defamatory material, its role is a passive one, merely facilitating postings on the internet
- However, if the defamatory material has been drawn to D’s attention and D doesn’t take steps to take it down, then D could become a publisher
Honest opinion
Section 3
Gregg v O’Gara (S 3(2)): where a statement is capable of verification as being true or false, it’s fact not opinion
Joseph v Spiller (S 3(3) and 3(5)): not necessary for D to provide enough substance for the reader to form their own opinions (e.g. comments about football matches, plays, concerts); subjective enquiry as to what D believed when making the comment
Dyson v MGN (S 3(4)): an honest person, not necessarily the reasonable or fair-minded person
Truth
Section 2
Ma v St George’s Healthcare NHS Trust: burden of proof is on D; the fact that imputation turned out to be baseless doesn’t mean they weren’t substantially true at the time of publication
Chase v News Group Newspapers Ltd: D does not have to prove that every word is true, just has to establish the “essential” or “substantial” truth of the sting
Innocent dissemination
Common Law defence
- Vizetelly v Mudie’s Select Library Ltd: applies to those who had a ‘subordinate part’ in disseminating: (1) D did not know of the defamatory imputation contained in the material
(2) neither the material not the surrounding circumstances puts D on notice that the material contained any defamatory imputation
(3) D was not negligent
s1 1996 Act
Tamiz v Google Inc: until finding out about the defamatory imputation, D could rely on the defence
Public Interest
section 4
Jameel v Wall Street Journal (s4(1)(a)): “what engages the interest of the public may not be material which engages the public interest”
Serafin v Malkiewicz: where an article is solely focused on C’s work and conduct as a private individual, it will be impossible to prove the article contributed to any debate of public interest
Economou v De Freitas (s4(1)(b)): D must’ve believed the publishing of the statement was in the public interest, and this belief must’ve been reasonable (arrived to with care, engaging in the appropriate enquiries)
Reynolds v Times Newspapers: 10 factors- seriousness of allegations; nature of information; source; steps taken to verify; status; urgency; comment sought from plaintiff; gist of plaintiff’s side of the story; tone of the article; circumstances of publication
Qualified Privilege
Common Law
- Adam v Ward: defence requires that ‘the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. The reciprocity is essential’
- Ma v St George’s Healthcare NHS Trust: D must have a legitimate interest in informing readers of the statement- the defence applies to communications which voiced genuine concern about the safety and safeguarding of a young child patient
- Levi v Bates: there must be a corresponding and legitimate interest in being informed about the statement- where the statement is published to a wider group where some members don’t have legitimate interest, the defence is not enough
- Horrocks v Lowe: must not have been motivated by malice
- Rai v Bholowasia: conduct which is merely ‘prejudiced and irrational’ is not malice
Statutory - s15 1996 Act
Ifedha v Kilburn Times North West London Newspapers: malice = where D knew the allegation was false, or D was reckless as to whether it was true or false
Reportage
S 4(3) 2013 Act
Charma v Orion Publishing Group Ltd: protection is lost if the journalist adapts what has been said and makes it his own, or fails to report in a disinterested, neutral way
Roberts v Gable: (s 4(1)(a) defence should eb treated ‘restrictively’ and would be ‘relatively rare’
Absolute privilege
Primrose v Waterston: all participants in legal proceedings enjoy immunity from any suit in defamation, but this immunity is lost if the words had no connection to the case at hand
Buchanan v Jennings: while statements said in Parliament are protected, statements made outside are not, even if they simply repeat what was said
Consent & Acquiesence
D has a defence if C consented/acquiesced to the publication complained of
Tamiz v Guardian News & Media Ltd: acquiescence is proven where C knew of the words used by D, and di not object to their publication or continued publication
Damages
Farral v Kordowski: various factors taken into account when calculating damages e.g.: gravity of the imputations; time period over which the publication appeared; frequency of publication; readership; D’s behaviour
Bowman v MGN: egg-shell skull rule applies- if C was so robust that he would feel the injury less than others, damages should also reflect that
Mitigating factors
Berezovksy v Russian Television: C’s general bad reputation
Burstein v Times Newspapers: C’s own conduct in provoking D’s defamatory imputation
Cairns v Modi: offer of amends; published correction and apology
