Defamation Flashcards
What is the general principle of Defamation?
The law protects an individual personal and professional reputation from unjustified attack.
In civil law a statement making such an attack may be found to be tort - a civil wrong in which the court may award monetary damages.
Defamatory statements are those that could be written or spoken which effect the reputation of a person, company or organisation.
WRITTEN - is a libel for which damages can be rewarded.
SPOKEN - a tort of slander which may incur damages unless a defence is applied.
Broadcasting act 1990 and The Theatres act 1986
Any defamatory statements spoken can be held libel and slander.
What is the definition of a defamatory statement?
Defamation act 2013
Exposing them to hatred, ridicule or contempt or causing them to be shunned or avoided.
Lowering them in estimation of right thinking members
Disparaging the person in their business, trade, office or profession.
Which the court of appeal has heard means connoting a tendency to cause serious harm.
Inference
A statement with a secondary meaning which could be understood by someone without specialist knowledge.
Innuendos:
In the law of libel is a statement which may seem to be an innocuous to some people but defamatory to others with special knowledge.
Photos and captioning:
Using the wrong photo identifying someone in a defamatory context even if not named could be held libel.
Juxtaposing - placing a photo incorrectly if it wrongly suggests by juxtaposition that someone shown is a person in a story.
What does the Claimant have to prove?
That the statement complained of was defamatory.
The statement referred to was them.
The statement was published.
What does libel law concern?
Libel law concerns the reputation of an individual or corporation. A statement is defamatory if a reasonable person reads it or hears it and then it lowers their estimation of that business or person
What is the repetition rule?
Every repetition of a libel is a fresh publication and creates a fresh cause of action. It is no defence to say you the publisher are not libel because you only repeated the words of others.
What is the case law for the repetition rule?
The Birmingham six case, where after six men were acquitted of terrorist offences, the sun repeated a Police mans allegation, first published in the Sunday telegraph saying that the six were guilty after all. Both paid damages.
What is the test of identification?
Whether it would reasonably lead people acquainted with them to believe they are the person being referred to.
What is defamatory law in reference to groups?
If the statement refers to someone being a member of a group and includes no other identifying feature of that person all members of that group can sue for defamation even if the publisher was only referring to one of them.
What is the test of identification case law?
The Daily Express reported that Harold Newstead, 30 from Camberwell was jailed for 9 months for Bigamy.
Another Harold Newstead who worked in Camberwell sued claiming the report was understood to be referring to him - he won.
What is absolute privilege as a defence?
The public interest argues that there should be freedom of speech without any risk of proceedings of defamation. The only time journalists can use this is within court.
The requirements are:
A fair and accurate report of judicial proceedings held in public within the UK and published contemporaneously.
The Defamation act 2013 extended these proceedings to any court established under the law of the country and territory outside the UK and any international court or tribunal established by the security council of the united nations or by the international agreement such as the ECHR.
Why is absolute privilege for court reports vital?
Often what is said in court is highly defamatory and reporting without protection would be impossible
What does Absolute Privilege not cover?
It doesn’t cover people who are not party to the court proceedings such as people in the gallery.
You should not report on interruptions that could be defamatory.
If a document is not read out loud in an open court then its not covered.
What are the basic requirements for Qualified Privilege?
Only for reports of proceedings. Relating to the list of statements published in schedule one. The published report must be fair and accurate and published without malice. There is also the general requirements that the matter published must be a matter of public interest, the publication of which is for the public benefit.
What does part one of the schedule to the defamation act 1996 state:
A list of statements having qualified privilege without explanation or contradiction:
proceedings in public of legislatures anywhere in the world.
Reports of matters published by the government or legislatures.
Proceedings in public courts when the coverage is non contemporaneous
A person appointed by a government anywhere in the world to hold an enquiry.
Reports of copies of extracts from any register or document required by law to be open to public inspection.
What does part two of the schedule to the defamation act 1996 state:
A list of statements thus privileged but subject to explanation or contradiction.
Reports of council meetings and committee held in public.
Official statements and press conferences anywhere in the world.
Official statements issued on the behalf of councils, the police and government departments.
public proceedings of findings for disciplinary panels of professions for which the panels are constituted under statutory powers.
The findings of UK private associations.
Proceedings at a general meeting of a UK company.
Honest Opinion defence:
Only protects a publication of a statement or opinion.
The requirements of the defence:
1) The published material must be the honestly held opinion of the person making it.
2) It must be recognisable as an opinion.
3) The opinion must be based on provably true fact or privileged matter.
4) The material must explicitly or implicitly indicate at least in general terms the fact or information on which the opinion is based.
Striking a balance within the public interest:
The public interest defence in the 2013 act aims to strike a balance between the right to reputation and the maintenance of the free press.
With the right of freedom of expression comes scrutiny of journalistic activity and the need for responsible journalism.
Define public interest:
The 2013 act does not define public interest. The courts however will consider material to be within the public interest if it is of real public concern, this depends on publication and market.
Editors code, IPSO and OFCOM define public interest as areas of public concern such as crime or activities which are a danger to the public.
The public interest defence is intended to reflect the principles in Reynolds V Times newspapers.
The public interest defence:
Section 4 of the defamation act 2013. Under section 4 (1) the defendant is required to show that the statement complained of was or formed part of the statement on the matter of public interest. Section 4 (1) (A) requires the words complained of were about the matter within the public interest. Section 4 (1) (B) The defendant must believe that publication was in the public interest the court must decide whether it is reasonable for the defendant to hold that belief.
What is the case study relating to public interest?
Renoylds V Times news. Lord Nichollos set out a non exauhstive list of factors a court should consider when deciding if journalists actions constituted reasonable journalism.
