Defamation Flashcards
What are the elements of defamation?
(a) Damage to reputation
(b) Insult
(c) Affront (an action or remark that causes outrage or offence)
What may defamatory allegations concern?
Non-exhaustive
(a) morality
(b) criminality
(c) dishonesty
(d) financial unsoundness
(e) professional, vocational or business competence
(f) fitness for office
What are the requisites if defamation?
The communication of a false statement or idea which is defamatory of the pursuer.
What are the two presumptions for words to be defamatory?
(1) First presumptions is that the statement is false and the
(2) second presumption is that the statement is malicious
The process of defamation is divided in to two stages, what are they?
(a) Question of law, for the the court and at debate. Where the words actually defamatory
(b) Question of fact for proof or jury. Did the words actually defame the pursuer
What is meant by the term innuendo in regards to defamation?
The precise defamatory meaning which the pursuer attaches to the words.
Describe the case of Cuthbert v Linklater 1935.
A work of fiction was created in which a woman who was forefront of Scottish home rule movement removes union jack from Stirling Castle and shoves it down a men’s toilet. There was an allegation that this work of fiction was based on real person Wendy Wood. Wendy Wood objected on the basis that the person referred to was her and that she would never go in to a mens toilet. The innuendo in this case being that Wendy Wood showed a lack of womanly delicacy. Held to be defamatory.
Describe the case of Liberace v Daily Mirror 1959.
Liberace took exception to an article written by the Daily Mirror. He considered that it contained an innuendo and that the words used were capable of being read in the way that Liberace was a homosexual. HELD - won his case as the the Court determined that the reasonable man would have read the words to mean Liberace was a homosexual.
What must be considered in the question of fact for proof or jury on whether pursuer was defamed by words?
(a) whether the statement refers to the pursuer
(b) whether it is false
(c) whether on proper construction IN ALL THE CIRCUMSTANCES of the case the statement is defamatory of the pursuer
What did the case of Russell v Stubbs 1913 emphasise?
The innuendo must represent what is a reasonable, natural, or necessary inference from the words used, regard being had to the occasion and the circumstances of their publication
What did the case of Christie v Robertson establish?
That words spoken in anger/in rixa, to be defamatory have to be seriously intended.
Name a case where it was proven that readers understood as referring to a specific person in a defamatory way?
Hulton v Jones.
Define ‘Veritas convicii excusat ‘
Truth excuses insult
Why is veritas a hazardous defence to embark upon?
Failure may result in aggravated damages e.g. Baigent v BBC 2001.
Can liability attaches itself to other in defamation?
Yes, liability will attach to any person posting a defamatory statement on social media or online.
Who does the Defamation 1996 protect?
Those involved in production/distribution/sales.
Where can defences be found for people who are not really responsible for defamatory context?
s1(1) of the Defamation Act 1996
s1(2-3) states persons covered
Without the 1996 Act who could be liable for defamatory allegations?
People such as Newspaper sellers who do not actually have any influence over the publication.
When would the s.1 defence of the 1996 Act apply?
(a) If A is not the author, editor or publisher and has no responsibility for publication then the defence applies
(b) If A is not the author, editor or publisher and its responsible for publication then has defence if reasonable care is taken and did not know.
A defender can make an offer of amends as stated by s.2 of the 1996 Act, what does this involve?
(a) Correcting the statement
(b) Publishing an apology and;
(c) paying compensation
IF ACCEPTED ENDS DEFAMATION PROCEEDINGS.
If an offer of amends is rejected what happens?
In respect of s4(2) where an offer has been made the defender will have an automatic defence.
s4(3) states the pursuer must prove the Defender did not defamatory allegations were false and defamatory
What was emphasised in the case of Lord McAlpine of West Green v Bercow [2013]?
Liability will attach to any person posting a defamatory statement on social media or online
What defence to internet intermediaries have?
They have a s.1 defence under the 1996 as long as the defamatory material is removed on discovering its nature.
What happened in the case of Godfrey v Demon Internet?
A post was stored on defender’s server where it could be downloaded. Godfrey objected to what was said about him and brought it to the attention of Demon Internet. They did not respond quickly enough. They did have the s.1 defence, however, they were obliged to take it down when made aware or lose the defence.
