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Flashcards in Defamation Deck (107):
1

The requirements for an action in defamation:

1) A defamatory statement causing or likely to cause serious harm to the Claimant’s reputation
2) The statement must refer to C
3) The statement was published by the Defendant.
4) Additional requirements for slander, either:
i) Proof of special damage
ii) Imputation of criminal offence
iii) Def Act s2: Alleged unfitness in profession alleged

2

What does defamation do?

Defamation protects a claimant’s interest in reputation against false allegations (slander and libel).

3

‘for mere general abuse spoken no action lies’

Thorley v Kerry

4

Thorley v Kerry

‘for mere general abuse spoken no action lies’

5

Berkoff

Three tests in defamation
Three tests (Berkoff)

1) Sim v Strech (1936) Lord Atkin
Would the statement tend to lower the P in the estimation of right thinking members of society generally?
(qualified in Byrne v Dean to refer to law-abiding citizens).

2) Parmiter (1840), Berkoff
Does the statement tend to expose the Claimant to hatred, ridicule or contempt

3) Youssoupoff, Berkoff
Would the statement ‘make people shun and avoid the claimant’.

6

Sim v Stretch

Statement defamatory?=
Would the statement tend to lower the P in the estimation of right thinking members of society generally?
(qualified in Byrne v Dean to refer to law-abiding citizens).

7

Statement defamatory?=
Would the statement tend to lower the P in the estimation of right thinking members of society generally?
(qualified in Byrne v Dean to refer to law-abiding citizens).

Sim v Stretch

8

Parmiter (1840), Berkoff

Does the statement tend to expose the Claimant to hatred, ridicule or contempt

9

Does the statement tend to expose the Claimant to hatred, ridicule or contempt

Parmiter (1840), Berkoff

10

Youssoupoff, Berkoff

Would the statement ‘make people shun and avoid the claimant’.

11

s.1 Def Act 2013

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant

12

Lewis v Daily Telegraph

Ordinary reasonable reader
In order to establish whether a statement has the tendency to defame the court looks at what the words would convey to an ordinary reasonable reader
- Here: ordinary reasonable reader would understand being investigated is not the same as being guilty of fraud

13

Ordinary reasonable reader
In order to establish whether a statement has the tendency to defame the court looks at what the words would convey to an ordinary reasonable reader
- Here: ordinary reasonable reader would understand being investigated is not the same as being guilty of fraud

Lewis v Daily Telegraph

14

Charleston

manipulated naked and pornographic photos of C were placed in a magazine above an article explaining they were fake
Held
Publication has to be taken as a whole

15

manipulated naked and pornographic photos of C were placed in a magazine above an article explaining they were fake
Held
Publication has to be taken as a whole

Charleston

16

Cassidy


TRUE INNUENDO

words which would not otherwise have been ruled as being defamatory can hold such a meaning because of the circumstances or extraneous facts
Here:
The reasonable ordinary reader could have some special knowledge which would allow him to infer a defamatory meaning to the article
Generally:
In alleging true innuendo C must particularize in his/her statement the facts relied upon in support of the extended meaning

17

Berkoff

UGLINESS
Calling somebody ugly will normally not suffice
NEILL LJ:
- Insults which do not diminish a man’s standing among others do not found an action in libel or slander
- However:
- Words may be defamatory even though they neither impute disgraceful conduct to the Defendant or lack of skill in professional activity if they hold him up to contempt, scorn or ridicule or tend to exclude him from society
 Here deciding factor was that Berkoff makes his living from being in the public light

18

UGLINESS
Calling somebody ugly will normally not suffice
NEILL LJ:
- Insults which do not diminish a man’s standing among others do not found an action in libel or slander
- However:
- Words may be defamatory even though they neither impute disgraceful conduct to the Defendant or lack of skill in professional activity if they hold him up to contempt, scorn or ridicule or tend to exclude him from society
 Here deciding factor was that Berkoff makes his living from being in the public light

Berkoff

19


TRUE INNUENDO

words which would not otherwise have been ruled as being defamatory can hold such a meaning because of the circumstances or extraneous facts
Here:
The reasonable ordinary reader could have some special knowledge which would allow him to infer a defamatory meaning to the article
Generally:
In alleging true innuendo C must particularize in his/her statement the facts relied upon in support of the extended meaning

Cassidy

20

Youssoupoff (1939)

ALLEGATION OF RAPE
Defendant contented that the film complained of did not indicate aa seduction between a character C identified with and another but if anything a rape
Slesser LJ:
Either way amoral discredit on part of the C due to the content of the film could be identified.
 Successful claim for libel
Note:
- Social attitudes have changed so it may be well different, and an allegation of rape may no longer be ruled as defamatory
- However even in this case the court was aware that pity might be more likely, and they were aware that rape does not reflect upon somebody’s moral credit, nevertheless they found that in reality a Claimant might still be avoided due to such allegation, avoidance has not to be triggered by any moral discredit on your part

21

ALLEGATION OF RAPE
Defendant contented that the film complained of did not indicate aa seduction between a character C identified with and another but if anything a rape
Slesser LJ:
Either way amoral discredit on part of the C due to the content of the film could be identified.
 Successful claim for libel
Note:
- Social attitudes have changed so it may be well different, and an allegation of rape may no longer be ruled as defamatory
- However even in this case the court was aware that pity might be more likely, and they were aware that rape does not reflect upon somebody’s moral credit, nevertheless they found that in reality a Claimant might still be avoided due to such allegation, avoidance has not to be triggered by any moral discredit on your part

Youssoupoff (1939)

22

S.1: harmful or potentially harmful

 What has been alleged
 How widely is the publication disseminated
 How many people have read it
 Apology might be given some weight (Cooke v MGN)
Nb: no pain suffered need to be proven, statement vs publication (not the same!!)

23

Cooke v MGN

In considering whether a statement is harmful to Cs reputation Apology might be given some weight

24

In considering whether a statement is harmful to Cs reputation Apology might be given some weight

Cooke v MGN

25

Claim must be brought by the person who is being defamed

Knuppffer

26

Knuppffer

Claim must be brought by the person who is being defamed

27

Jameel v Wall Street Journal

- Companies can generally sue (but damages should be small)
- Particular loss can be recovered
- Presumed harm will only be small because of a concern of infringement of free speech
Dissenting
Hoffmann
Companies have no soul or personality, defamation should protect dignity
Lady Hale
Companies play such a big role in modern life, people should be allowed to criticize them without fear of liability
 Accepted and enhanced by Def Act 13 s.1(2)

28

- Companies can generally sue (but damages should be small)
- Particular loss can be recovered
- Presumed harm will only be small because of a concern of infringement of free speech
Dissenting
Hoffmann
Companies have no soul or personality, defamation should protect dignity
Lady Hale
Companies play such a big role in modern life, people should be allowed to criticize them without fear of liability
 Accepted and enhanced by Def Act 13 s.1(2)

Jameel v Wall Street Journal

29

Knuppffer

Groups won’t be able to claim in defamation unless
1) the words refer to a group that is so small that the words may be taken to refer to each member
2) the language was sufficiently specific towards every single person (singling out every member)
UNCLEAR:
What does small enough mean: Here 24 too many, but in a Scottish Case 7 ok
Maybe apply: Hulton
Would a reasonable person believe words to refer to C?

30

Groups won’t be able to claim in defamation unless
1) the words refer to a group that is so small that the words may be taken to refer to each member
2) the language was sufficiently specific towards every single person (singling out every member)
UNCLEAR:
What does small enough mean: Here 24 too many, but in a Scottish Case 7 ok
Maybe apply: Hulton
Would a reasonable person believe words to refer to C?

Knuppffer

31


Would a reasonable person believe words to refer to C?

Hulton v Jones

32

Hulton v Jones

Would a reasonable person believe words to refer to C?

33

Neither Government bodies, nor political parties can bring a claim in Defamation
Why?

Freedom of speech requires people to be able to discuss the workings and merits of Government bodies to make an informed choice at an election without having to fear consequences of a tort in defamation.

34

Cassidy

Strict liability
Words might be indirectly defamatory
Publisher might not know of true innuendo

35

Hulton v Jones

- Question is not who was meant but who was hit
(Artemus Jones Appeal) - Tort consists in using the language which others knowing the circumstances would reasonably think of as being defamatory of the person complaining of and injured by it
Why no bad intention requirement?
1) Defamation used to always be tried by jury: jury might find good faith and believe in the truth
2) This lead to negative checking as practice especially in film and such media
Note also: Influence of Art. 10 ECHR now relaxes the effects of strict liability
 Followed by Newstead

36

- Question is not who was meant but who was hit
(Artemus Jones Appeal) - Tort consists in using the language which others knowing the circumstances would reasonably think of as being defamatory of the person complaining of and injured by it
Why no bad intention requirement?
1) Defamation used to always be tried by jury: jury might find good faith and believe in the truth
2) This lead to negative checking as practice especially in film and such media
Note also: Influence of Art. 10 ECHR now relaxes the effects of strict liability
 Followed by Newstead

Hulton v Jones

37

Strict liability
Words might be indirectly defamatory
Publisher might not know of true innuendo

Cassidy

38

O’Shea v MGN

Exception:LOOK-A-LIKE PICTURES
adult model published in Daily Mirror resembling C
STRICT LIABILITY DID NOT APPLY:
1) Possible to identify and eliminate coincidental names; it is not possible to identify if somebody looks uncannily like somebody else
2) Strict liability rule in such situation would be a disproportionate interference with Art. 10
 Interference only where pressing social need

39

Exception:LOOK-A-LIKE PICTURES
adult model published in Daily Mirror resembling C
STRICT LIABILITY DID NOT APPLY:
1) Possible to identify and eliminate coincidental names; it is not possible to identify if somebody looks uncannily like somebody else
2) Strict liability rule in such situation would be a disproportionate interference with Art. 10
 Interference only where pressing social need

O’Shea v MGN

40

Baturina

CONFIRMATION OF GENERAL RULE AFTER O’Shea
(and in relation To true innuendo)
CoA declined to restrict liability in cases where D could not have reasonably appreciated the innuendo meaning of his/her statement

41

CONFIRMATION OF GENERAL RULE AFTER O’Shea
(and in relation To true innuendo)
CoA declined to restrict liability in cases where D could not have reasonably appreciated the innuendo meaning of his/her statement

Baturina

42

What does publication mean

Publication means simply communication.
The statement must have been conveyed in some way to a third party (even a single person)
-> everybody involved in the process is possibly liable as a publisher

43

OMISSIONS
Failure to take down writings with defamatory meaning meant that D had published the statement
Such an omission amounts to publishing unless removal would require great trouble (e.g. Grafittis)

Byrne v Deane

44

Byrne v Deane

OMISSIONS
Failure to take down writings with defamatory meaning meant that D had published the statement
Such an omission amounts to publishing unless removal would require great trouble (e.g. Grafittis)

45

SINGLE PUBLICATION
RULE

Common Law position used to be multiple publication rule
HOWEVER
This was likely to cause great trouble, as, where there is repeated access of archived materials on the internet this would raise the prospect of countless publications
Upon proposition of a stricter rule by a parliamentary committee:
S8 Single Publication Rule
Restricts actions on republication which fall outside a limitation period of 1 year from the original publication

46

Thorley

distinction between permanent and non-permanent form, libel and slander
libel:
Permanent form
(TV radio -> Def Act 1952
Theatre -> Theat. Act 1968
Broadcasting Act 1990)
ACTIONABLE PER SE
(presumption of damage)

SLANDER
transitory form
(Speech, gesture)
SPECIAL DAMAGE REQUIRED or
a) imputation of criminal offence
b) Def Act S2: unfitness in profession alleged

47

distinction between permanent and non-permanent form, libel and slander
libel:
Permanent form
(TV radio -> Def Act 1952
Theatre -> Theat. Act 1968
Broadcasting Act 1990)
ACTIONABLE PER SE
(presumption of damage)

SLANDER
transitory form
(Speech, gesture)
SPECIAL DAMAGE REQUIRED or
a) imputation of criminal offence
b) Def Act S2: unfitness in profession alleged

Thorley

48

Defence: DISTRIBUTORS

Def. Act 13 s.10 reasonable practicability test = unexplained, No case law so far

Def Act 96 s. 1
Requirements:
1) Reasonable care (probably means making inquiries and checking)
2) Reasonable belief not to be contributing to defamation
(means once aware/ informed of defamation defence is lost)

49

Website operators

not liable
s. 5 Defamation (Operators Of Websites) Regulations-
- requirement to take down the statement only where the publisher can’t be identified
- requirement to inform writer of defamatory nature of statement

50

Truth defence

Defamatory statement will be presumed to be false at first
Burden on the D to prove its true.
Truth defence is absolute and excludes unlawfulness.
Irrelevant factors:
1) D acting maliciously
2) If D took reasonable steps to make sure statement= true, when its false
3) Statement made in public interest

51

Stern v Piper

Repition of a libel
Repition of a libel is just as bad
Simply reporting that you heard the statement from somebody else will not give rise to a defence,you would have to prove the statement is actually true

52

Repition of a libel
Repition of a libel is just as bad
Simply reporting that you heard the statement from somebody else will not give rise to a defence,you would have to prove the statement is actually true

Stern v Piper

53

s.2(3) :
MIX OF IMPUTATIONS

defence does not fail if one or more imputations is false or not shown to be true, as long as the harmful imputation can be shown to be substantially true

54

Bookbinder

PROOF OF EACH AND SPECIFIC ALLEGATION
A specific allegation cannot be justified by evidence of a general tendency
Here the court could not take a specific allegation as example of some broader allegation, the specific allegation would have to be proved
Importance shown in:
Scott v Sampson

55

PROOF OF EACH AND SPECIFIC ALLEGATION
A specific allegation cannot be justified by evidence of a general tendency
Here the court could not take a specific allegation as example of some broader allegation, the specific allegation would have to be proved
Importance shown in:
Scott v Sampson

Bookbinder

56

Scott v Sampson

producing evidence of misconduct at the
mitigation of damages stage is not permissible
Only proof that C already had a bad reputation will be permissible, this is to stop C to be ambushed at the end of the trial

57

producing evidence of misconduct at the
mitigation of damages stage is not permissible
Only proof that C already had a bad reputation will be permissible, this is to stop C to be ambushed at the end of the trial

Scott v Sampson

58

Grobbelaar

Sting must be proven to be truthful
where there is one imputation, albeit with
different aspects it needs to be worked out
where the sting of the defamatory statement lies and whether the aspect conveying the sting was truthful

59

Sting must be proven to be truthful
where there is one imputation, albeit with
different aspects it needs to be worked out
where the sting of the defamatory statement lies and whether the aspect conveying the sting was truthful

Grobbelaar

60

Lyon

s. 3 protects the function of honest and fair criticism and debate, which cannot be true or false, as it is based on opinion and is (as per Lord Scott in Lyon) vital to be preserved

61

s. 3 protects the function of honest and fair criticism and debate, which cannot be true or false, as it is based on opinion and is (as per x in x) vital to be preserved

Lord Scott in lyon

62

s3 requirements

3 REQUIREMENTS:
1) Statement of opinion
 - Must be presented as opinion
2) Statement must implicitly or explicitly indicate the factual basis of opinion
 - It is now enough that the general factual basis is provided Spiller
3) Could a honest person have held the opinion on the facts existing at the time
Nb must not be reasonably held opinion

HONEST OPINION DEFEATED BY MALICIOUS MOTIVE
(nb before: fair comment, now abolished, fair comment only applied in matters of public interest)

63

Spiller

For the defence of honest opinion it is now enough that the general factual basis is provided

64

For the defence of honest opinion it is now enough that the general factual basis is provided

Spiller

65

QUALIFIED PRIVILEGE

This defence is accorded to someone who is acting under a moral, legal or social duty to communicate some information to a person who has a corresponding interest in the information.
The defence depends on bona fide and will be defeated by malice

66

This defence is accorded to someone who is acting under a moral, legal or social duty to communicate some information to a person who has a corresponding interest in the information.
The defence depends on bona fide and will be defeated by malice

QUALIFIED PRIVILEGE

67

Horrocks

Malice
Qualified privilege will be lost if proved that D
a) Held a dominant and improper motive (predominant motive was not to perform the duty that would give rise to the defence)
Accompanied by
b) Lack of honest belief in the statement (or recklessness as to truth of the statement)

68

Malice
Qualified privilege will be lost if proved that D
a) Held a dominant and improper motive (predominant motive was not to perform the duty that would give rise to the defence)
Accompanied by
b) Lack of honest belief in the statement (or recklessness as to truth of the statement)

Horrocks

69

Toogood

Common example of qualified privilege defence
EMPLOYMENT REFERENCE an unflattering recommendation letter will fall under this defence provided the potential new employer has an interest in the information

70

Common example of qualified privilege defence
EMPLOYMENT REFERENCE an unflattering recommendation letter will fall under this defence provided the potential new employer has an interest in the information

Toogood

71

Statement on a matter of public interest

s.4 Def Act 2013
1. Is the statement on a matter of public
interest?
2. Did D reasonably believe that
the statement was in public interest
-> court must have regard to all circumstances of the case * see Reynolds for incentive on what to consider but note
its abolished (imp.: reasonable belief)
nb: on a matter of public interest does
not simply mean public wants to know
about it

72

Reynolds

Abolished
Lord Nicholls:
Factors to be taken into account i.a.:
1) Seriousness of allegation
2) Nature of information and extent To which matter is of public concern
3) Source of information
4)Steps taken to verify and Urgency
5) Comment sought from Claimant,
6) Tone of article
“responsible journalism”, Absence of malice will be implied

Problem with the test:
The factors to be taken into account shifted the test
from what the D believed at the time
to a later assessment of the judge looking Back
That’s why this was abolished and the Act asks
For reasonable belief

73

Abolished
Lord Nicholls:
Factors to be taken into account i.a.:
1) Seriousness of allegation
2) Nature of information and extent To which matter is of public concern
3) Source of information
4)Steps taken to verify and Urgency
5) Comment sought from Claimant,
6) Tone of article
“responsible journalism”, Absence of malice will be implied

Problem with the test:
The factors to be taken into account shifted the test
from what the D believed at the time
to a later assessment of the judge looking Back
That’s why this was abolished and the Act asks
For reasonable belief

Reynolds

74

Economou v de Frietas)

Reynolds still provides guidance on principles to be considered in s.4

75

Al Fagih

Defence of reportage
- Developed from Reynolds
- Where a dispute between two parties without subscribing to the truth of allegations made on either side is written about (Al Fagih)
- S.4(3)

76

Defence of reportage
- Developed from Reynolds
- Where a dispute between two parties without subscribing to the truth of allegations made on either side is written about (x)
- S.4(3)

Al Fagih

77

ABSOLUTE PRIVILEGE

The defence of absolute privilege covers situations in which it is very important that the participants are able to speak freely without having to fear repercussions.
It is NOT defeated by proof of malice.

78

JUDICIAL PRIVILEGE

speech in court
Reports of court proceeding, Def Act 1996 s14

79

PARLIAMENTARY PRIVILEGE

speech in parliament
Derived from Art.9 Bill of Rights modified in Def Act 1996 s.13
Does not only cover debates in the HoC but all statements made by MPs during parliamentary proceedings – can be waived by MPs as it does not only apply to statements made by them but also statements about them

80

EXECUTIVE PRIVILEGE

certain communications between officers of the state

81

OFFER OF AMENDS

This defence applies to innocent (unintentional) defamation (as f.e. Cassidy), set out in Def Act 1996 ss2-4
- Offer in writing to C
- To publish a correction and apology
- Pay compensation and damages
If the offer of amends is rejected by C it may be later relied on as a defence (not in conjunction with another defence though)

82

Bingham, in John v MGN

The award of damages at large is the primary remedy for the tort of Defamation.

83

The award of damages at large is the primary remedy for the tort of Defamation.

Bingham, in John v MGN

84

Why are defamation damages untypical

Atypical because :
1) Jury were asked with assessing- exceptional in civil justice system
2) Punitive damages can be added
Awarded will be Compensatory damages (special damages (specific losses)+ presumed losses) + exemplary damages

85

(Courts and Legal Services Act 1990 S. 8)

1. Compensatory Damages
- Compensate for the loss suffered
- In the case of libel and slander actionable per se injury to reputation will be presumed to flows from the publication in favor of C, so C will be entitled to damages at large
- Sometimes damages awarded by the jury would be really high, this is why CoA now can order new trial where damages are excessive

86

Presumed damages reflect

1) Claimant’s loss of reputation
2) Claimants injury to feelings (nb: injury to feelings alone will not found a claim due to s.1 Def Act (Theedom v Nourish Trading)
o Assessed also by looking at extent of publication, seriousness of statement and Ds conduct
Other considerations:
- If there has been an apology (Cooke)
- Cs reputation and conduct (has C provoked the defamation (Watts v Fraser)

87

Watts v Fraser)

Consideration when assessing damages:Cs reputation and conduct (has C provoked the defamation

88

Consideration when assessing damages:Cs reputation and conduct (has C provoked the defamation

Watts v Fraser)

89

John v MGN

COMPENSATE FOR
1) Damage to reputation
2) Vindicating Cs name
3) Distress, hurt, humiliation
the more closely the libel touches C’s
integrity the more serious it will be held to be

There will never be a precise, arithmetical formula
When indicating guidelines to the jury the judge may draw comparisons to personal injury


90

COMPENSATE FOR
1) Damage to reputation
2) Vindicating Cs name
3) Distress, hurt, humiliation
the more closely the libel touches C’s
integrity the more serious it will be held to be

There will never be a precise, arithmetical formula
When indicating guidelines to the jury the judge may draw comparisons to personal injury

John v MGN

91

The Gleaner

Only broad comparison will be appropriate, attempts to equate them were criticised(

92

Only broad comparison will be appropriate, attempts to equate them were criticised(

The Gleaner

93

Barron v Vines, Grobbellar

May be taken into account and may reduce damages
Though not evidence of rumours or suspicion
(Scott v Sampson)

94

May be taken into account and may reduce damages
Though not evidence of rumours or suspicion
(Scott v Sampson)

Barron v Vines, Grobbellar

95

Exemplary damages

Exemplary damages are of punitive nature and designed to make an example of D due to his or her misconduct.
They may be awarded were the Defendant has made a cost-benefit analysis and published the defamatory statement knowing of the possible consequences

96

Broome

Commercial publishers
Book publisher had calculated he would make profit even if claim against him was brought and succeeded

97

Commercial publishers
Book publisher had calculated he would make profit even if claim against him was brought and succeeded

Broome

98

Mitigation

A Defendant found guilty is entitled to show that Cs reputation was already damaged and that therefore the damage done was lower than it would otherwise have been.

99

Scott v Sampson

At the mitigation of damages stage
It is important that the evidence is that of Cs already damaged reputation
(It is not admissible for D to produce new evidence of previous misconduct)
This will be helpful where there is some evidence that can’t be fit into the truth defence but that still has had an impact on the damage done

100

At the mitigation of damages stage
It is important that the evidence is that of Cs already damaged reputation
(It is not admissible for D to produce new evidence of previous misconduct)
This will be helpful where there is some evidence that can’t be fit into the truth defence but that still has had an impact on the damage done

Scott v Sampson

101

a) Final Injunction

These may be granted at the end of some cases and will include
1) Instruction that party must do something or
2) “ must not do something

102

b) Interim Injunction

These will be sought by a Claimant that tries to stop D from publishing the allegedly defamatory statement.
Courts are very reluctant to grant injunctions in these circumstances

103

Bonnard v Perryman

Court underlines the importance of freedom of speech and that interim injunctions should only be granted in the clearest of cases
Should not be granted where
1) D contests whether the words are defamatory at all (C must prove the libel is clearly untrue)
2) D indicates the intention to raise a defence
(only where it is clear the defence will fail)

104

Court underlines the importance of freedom of speech and that interim injunctions should only be granted in the clearest of cases
Should not be granted where
1) D contests whether the words are defamatory at all (C must prove the libel is clearly untrue)
2) D indicates the intention to raise a defence
(only where it is clear the defence will fail)

Bonnard v Perryman

105

HRA 1998 requirement for injunctions

Judges should consider whether applicants
are more likely than not to succeed when
granting any relief that could threaten freedom
of speech
o Lower threshold than Bonnard

106

Greene

it was argued Bonnard gave too much protection to freedom of speech and not enough to right to private life etc
the HRA could not be interpreted so as to make it easier to get an interim injunction

107

it was argued Bonnard gave too much protection to freedom of speech and not enough to right to private life etc
the HRA could not be interpreted so as to make it easier to get an interim injunction

Greene