Defamation Tort Law Flashcards

Question

Examples under element 1 of what counts as defamatory

Answer 1

- If you claim someone has committed adultery (defamatory) - If you claim someone has knowingly tried to be a home wrecker is also defamatory - If you say someone is ugly also defamatory - If you say someone has an infectious or contagious disease that is defamatory - Saying someone had sex with a prostitute

Answer 2

A statement that appears innocent but implies a defamatory meaning through common assumptions or implications, without needing extra facts. A statement that becomes defamatory only when the reader knows special facts not stated in the publication

Answer 3

The defamatory imputation identifies C - Must refer to the claimant or be understood by the reasonable reader as referring to the claimant - Does not matter whether or not D intended to refer to C

Answer 4

What about a look alike? Too harsh on the defendant for them to be able to publish. O’shea v MGN

Answer 5

Not named explicitly but there is a class of readers that possess a class of information which would reasonably lead them to believe that it is about a specific claimant (Baturnia v Times Newspapers) Powell v Bouldas - C complained about GP (D) on TV, GP hit back saying a particular someone (not referencing C) is being a liar. When you combine that with the fact that some people may have watched C’s complaints about GP, people may think C is the one being defamed

Answer 6

Second element of defamation, imputation identified C Where a claimant is named in one place and not another as long as there is enough evidence to show he was named initially, sufficient linkages (hyperlinks) between them may show that C was identified in both articles (Hayward v Thompson)

Answer 7

Fictional characters which could be interpreted to be based on a real character can be defamatory. E Hulton and Co v Jones

Answer 8

Mistaken photographs/descriptions. If D publishes a defamatory imputation which contains/words photos that depict C but actually

Answer 9

The defamatory imputation was published Published = mere communication D has to communicate to at least one other person (not C) Remember there could be a distinction between D and a publisher (Writing, posting, saying, sharing an repeating)

Answer 10

1.) Honest Opinion 2.) Truth 3.) Public Interest 4.) Qualfied + Absolute Privelige 5.) Reportage 6.) Peer Reviewed Statements 7.) Innocent Dissemination 8.) Consent and acquisence 9.) Offer of amends

Answer 11

**Defamation Act 2013 Section 3** 1.) Rep made is a statement of opinion 2.) The Opinion should be based on facts explained in the statement 3.) An honest person could have formed that opinion based on (facts existeed at the time) + something claimed as a fact in a (priveliged statement) 4.) D held expressed it honestly without malice

Answer 12

***Koutsagiannis v Random House Group*** - How would the statement strike the ordinary reasonable reader? **Opinions**: * Evaluative assertions are an opinion - **Tinkler v Ferguson** * Where the statement appears in an analysis comment section it is in an opinion - ***Cook v Telegraph Media*** ***It is not an opinion where***: * If it capable of being proved true or false it is a fact: ***Gregg v O'Hara*** | **Needs to be an opinion**

Answer 13

***Joseph v Spiller*** Unnecessary for D to identify, with full detail, all the facts. (D's defamee breached contract but do not have to specify the exact breach of contract) ***Kemsley v Foot *** Depends on the statement you are making *- If it is reasonably known to the public - basis on the opinion does not need to be as much.* | Opnions without base on facts less likely to be honest opinion

Answer 14

**Honest person** could hold it to be true — it doesn't have to reflect the views of a reasonable or fair-minded person. **(Subjective opinion here)** ***Dyson v MGN*** - but the fact has to be true here So if you hear Bob beats up his wife and you defame him and it is not true then liable -> *** Riley v Murray*** *Doestherehavetobeanyconnectionbetweenthefactsindicatedasthebasisonwhichtheopinion is based, and the facts that can support the opinion? | Basis for Honest Opinon s3(4)

Answer 15

The defendant held the opinion expressed (i.e., absence of malice) (DA, s3(5))

Answer 16

Section 2 Defamation Act 2013 - The imputation was one of fact - The imputation must be substantially true (DA, s2(1), 2(3))

Answer 17

**Truth negates liability of D where:** (1) The publication may cause great harm to reputation, distress and anger etc. (2) there may be no public interest; and (3) D acted with spite or malice: Terry v Persons Unknown

Answer 18

'Sting needs to be true' but not everything else ***Dee v Telegraph Media*** (If you tell someone that one is a rapist + theft) but the theft part is not true the main 'sting' is still true -> **Reputation is low** Needs to be true at the time of making the defamatory imputation*** Dee v Telegraph Media***

Answer 19

Applies where defamatory statement is within public interest -> People who are helping the public by letting them know Section 4

Answer 20

The statement must be, or form part of, a matter of public interest: **DA ,s4(1)(a)**

Answer 21

**Did D reasonably believe statement was in public interest?** **Was the belief reasonable?** - Difficult to believe that belief is reasonable if a general lack of care to checking the facts existed Scope for allowance | Economou v De Freitas [2018]

Answer 22

Ten Reynolds factors 1. “The seriousness of the allegation 2. The nature of the information, and the extent to which the subject-matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. | Court must have regard to all the circumstances of the case: DA,s4(2)

Answer 23

S.4(5) FACT + OPINION

Answer 24

**COMES IN AT S4(3**) Same as the public interest defence with two differences In determining whether D reasonably believed that publishing the statement was in the public interest (as required by DA, s 4(1)(b)), disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it: DA, s 4(3) (2ND ELEMENT) BUT The article must contain ‘an accurate and impartial account’: DA, s 4(3) | Investigative Journalism

Answer 25

Common Law + Statutory claims

Answer 26

** Adam v Ward **-> legal, social, moral interest to invest what he communicated + receving communication 1.) Legitimate interest to inform 2.) Corresponding Legitimate interest in recieving imputation 3.) D was not motivated by malice: ***Horrocks v Lowe *** (Did not believe it was true, motivation of spite, or gain something out of it, lack of care) **Akinleye v East Sussex ** - Any words which were published that are not relevant to the subject matter which is privileged will not be covered by the defence

Answer 27

The defence does not apply in so far as the statement is published to a wider group and some members of which do not have a legitimate interest in receiving the statement: **Levi v Bate** Only the parts of the statement relevant to the privileged occasion are protected. **Wallis v Meredith** irrelevant or excessive comments fall outside the defence.

Answer 28

The statement is a report of a type prescribed in Sch. 1; - Difference between Sch.1 Part Iand Sch.1 Part II documents - D was not motivated by malice: ***Ifedha *** (knows or reckless it is false) | Defamation Act 1996, Section 15

Answer 29

Where one recieves an automatic immunity in an ordinary course of proceedings (court or parliament) to speak freely within one's mind

Answer 30

All participants in legal proceedings All statements made in parliament are also protected by absolute privilege

Answer 31

* Statements made outside Parliament are not protected by absolute privilege even if they simply repeat what was said: ***Buchanan v Jennings*** * Where there is no connection to legal proceedings ***(Primrose) ***

Answer 32

**Defamation Act 2013, Section 6** Mainly for scholars and academics

Answer 33

Common law + statute

Answer 34

- D did not know of the defamatory imputation contained in the material - Neither the material nor the surrounding circumstances put D on notice that the material contained any defamatory imputation -D was not negligent

Answer 35

Sections 2-4 of the Defamation Act 1996

Answer 36

* D has a defence where** C consented to or acquiesced** in the publication complained of * Acquiescence = C knew of the words used + did not object to publication or continued publication: ***Tamiz v Guardian News***

Answer 37

**Damages** - Any Genuine damage, to clear C's name, for any distress caused (John v MGN Ltd) **For distress the eggshell skull rule is applied *Bowman v MGN***

Answer 38

* A pre-existing bad reputation could lower damages - **Berezovky** * Limited number of people that see the publication - **Burstein** * Offer of amends published correction and apology ** Cairns v Modi **

Answer 39

**Aggravated damages: Henry v NGN** - if malicious then higher damages **Exemplary damages: Rookes v Barnard** - where one does the defamation to gain advantage - higher damages

Answer 40

**Declaration of Falsity ** Defamation Act 1996, section 8 and 9

Answer 41

**Injunctive relief:** A court may grant an injunction restraining D from publishing, or from further publishing a defamatory statement where it is clear that D, unless restrained, intends to continue publishing the defamatory imputations But interim relief very rare:rule in Bonnard v Perryman

Defamation Tort Law Flashcards

(66 cards)