Lecture 2- Defamation Part 1: Concepts & Claims Lec 1, 2, 3 & 4

Question 1

What is defamation?

Answer 1

a tort designed to protect a persons personal reputation [ a civil wrong]

• claimant takes action in respect of a statement that has lowered other peoples opinion of that person; statement doesn’t have to be in the form of words (implied)

There are two forms of defamation:
→libel: statement is written or otherwise permanent form

→ Slander: statement is transient & generally in spoken form

Question 2

Libel & slander

Answer 2

→ Libel can be both a tort & a crime ; slander is only actionable in tort

→ slander is not recorded or permanent in nature ; libel is in permanent form

→ slander cases are now very rare: age of mass literacy

→ key difference: libel is actionable per se, but slander requires proof of special damage before an action can be brought

→ NB: libel actions now require proof of serious harm

→ slander exceptions: imputation on criminal offence punishable with imprisonment; imputation of professional incompetence

→ Section 14 defamation act 2013: Chastity a contagious now require special damage

Question 3

Modern defamation actions

Answer 3

→ defamation claims originally heard by a judge & jury - judge directed jury on the law ; jury decided in favour of C or D & assessed damages

→ new default position - judge only, unless jury hearing orders (s11)

→ many reported judgements are now preliminary on a point of law only

→ most reported cases are now preliminary issues - meaning of words, impact of the statement , prospective defences

→ many cases now settled after preliminary rulings

→ some claims never become public

→ main remedies are damages, injunctions, or an apology.

Question 4

What are the key components to a defamation action?

Answer 4

→ The statement must be defamatory

→ the statement must refer to the claimant

→ the statement must be published

→ the statement must have caused or be likely to cause serious harm to the reputation of the claimant

→ once these points are established, burden of proof switches onto defendant to show why the claimant should not succeed.

limitation period of 1 year from publication

Question 5

Defamation: key terminology

Answer 5

→ A sting is the part of the article or statement that has caused the offence and is being litigated

→ An imputation is saying someone is to blame or is responsible for something

→ An accusation / allegation made in the statement / publication

→ To imply is to suggest rather than state openly

→ Natural and ordinary meaning can be explicit (clearly stated) or implied (suggested, but the meaning is clearly intended)

→ A consequence is inferred when it is the logical conclusion of what is being said

→ Serious harm to reputation can be inferred by seriously grave allegations

→ Innuendo is an indirect hint of wrongdoing

→ Innuendo meaning requires extra knowledge to understand the defamatory nature of the imputation

Question 6

Who can bring an action

Answer 6

→ Any natural person whose reputation has been damaged in England and Wales - but they must be alive at the time at which the proceedings are held

→ Any legal person - but if that body trades for profit, it must also show ‘serious financial loss’: section 1(2) DA 2013
(Usually politicians don’t bring claims)

→ Individual politicians can claim - but rarely do so: Turley v.UNITE The Union [2019] EWHC 3547 (QB)

→ Government and public bodies cannot bring an action: (as its not very democratic to be preventing your people not to write what they want)

Derbyshire County Council v. Times Newspapers [19931 AC 534

‘It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism’ ( per Lord Keith)

Question 7

What is “right thinking people “

Answer 7

→ Doesn’t apply to specific communities: hypothetical person with reasonable views for the time ( Toller v. Fry 1930 1 KB 467: Gillick v. BBC (1996) EMLR 267)

→ US approach: Peckv. Tribune Co. 214 US 185 (1909)

→ Right-thinking will change dramatically over time

• Youssoupoffv. Metro-Goldwyn-Mayer (1934) 50 TR
581:’not only is a matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt, by reason of some moral discredit on her part, but also if it tends to make the plaintiff shunned or avoided and without any moral discredit or her behalf… One mav. I think. take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will. has suffered in social reputation and opportunities of receiving respectful consideration of the world (perSlesser LJ)

→ Donovan v. The Face (1992. unreported)

Question 8

What is the purpose of the defamation act 2013

Answer 8

• 2013 act is intended to make it harder to bring a claim

→ Jameel v. Dow jones [2005] EWCA civ 75: a ‘real and substantial tort’ must have occurred, taking into account article 10.
→→ J had a valid claim, but low circulation of outlet in uk made the action cost-prohibitive

→ Thornton v. Telegraph [2010] EWHC 1414
→→ whatever definition of “defamatory” is adopted, it must include a qualification or threshold of seriousness ( per Philips Mr )

• weeding out weaker claims

Question 9

Three issues to address in court that will directly impact any eventual damages awarded to C

Answer 9

(1) court has to first determine a ‘single meaning’ for each allegedly defamatory statement

(2) what is the level of seriousness of the meaning of those words?

(3) is the meaning of those words an assertion of factor an opinion?

Question 10

What are the two ways a “single meaning” can be interpetred

Answer 10

i. The “natural & ordinary meaning” understood by a reasonable reader

ii. An innuendo meaning, which seems innocent but additional context reveals to be defamatory

Question 11

What are the 8 key issues addressed in Jeynes v. News magazine

Answer 11

(1) The governing principle is **reasonableness.*

(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawver and mav indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available

(3) Over-elaborate analvsis is best avoided.

(4) The intention of the publisher is irrelevant.

(5) The article must be read as a whole, and any ‘bane and antidote’ taken together.

(6) The hypothetical reader is taken to be representative of those who would read the publication in question.

(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation’

(8) It is not enough to say that by some person or another the words might be understood in a defamatory sense

Question 12

Innuendo meaning

Answer 12

• Alternative interpretation to the ‘natural and ordinary meaning’ of the single meaning of the words used

• Two types of innuendo:

→ false innuendo (ordinary reasonable person would clearly infer meaning from the words used) and
→ true innuendo (appears innocent to some readers, but is defamatory to others who have additional knowledge of external facts)

• ‘The claimant will have been defamed in the minds of those readers, but not in the minds of the readers who did not know the extrinsic facts’: McAlpine v.
Bercow [2013] EWHC 1342 (per Tugendhat J.)

• C must identify the innuendo meaning, the extrinsic facts relied on and that these facts were known to readers

• Potentially impacts upon measure of damages, as fewer readers would recognise the libel (although NB: serious harm could still apply)

Question 13

What is the level of meaning

Answer 13

• Once the meaning of the words is ascertained, judge must ascertain the imputation of the statement

• What exactly is being alleged?

• Three potential levels of meaning (known as the
Chase levels):

‘The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act. such as murder.

Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act.

A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act’: Chase v. News Group Newspapers [2002]
EWCA Civ 1772 (per Brooke LJ, 451)

Question 14

What are the chase levels

Answer 14

1. An allegation of guilt (most difficult for D to prove true)
   - e.g. X stole the money
2. An allegation of reasonable suspicion of guilt (easier to prove)
   - X was seen at the crime scene
3. An allegation that there are grounds for investigating whether C was responsible (easiest to brove)
   - The police have good reason for questioning X

• Litigation tactic - C will argue the statement is at the most damaging level possible; D will argue it is the most trivial

Question 15

How to figure out if it is a fact or opinion?

Answer 15

• A further key issue to determine is whether the meaning of the statement is a comment, or an assertion of fact

• Often the distinction can be difficult to unravel

• Highly significant regarding a prospective defence

• Litigation tactic: C will try to argue for a ‘fact’ meaning this will require D to rely on the defence of Truth - often hard to prove

• Litigation tactic: D will try to argue for - an ‘opinion’ meaning as they can rely on an alternative defence of Honest Opinion - easier to prove than Truth

Question 16

what is group defamation

Answer 16

• C must prove that the statement refers to them- unlikely to be able to do so when it refers to a group of people (eg. ‘all politicians are liars’)
• Theoretically possible if a group is so small and clearly defined that a reasonable reader would consider the statement to apply to C

Question 17

what does ‘publication’ mean?

Answer 17

• the item must be ‘published’ (ie. communicated) to a third party- not defamatory if only the claimant knows about it
• very wide definition- any form of communication can be accessed in this jurisdiction
• in principle, even if only a handful of people have read the publication, an action might succeed- but must be a ‘real and substantial tort’ : Jameel v Dow Jones
• substantial means ‘sufficient reader of the publication to justify judgement- Al Amoudi v Brisard

Question 18

what is a ‘real and substantial tort’

Answer 18

• readership in the England and Wales jurisdiction
• No need to precisely quantify the number of readers- although this may affect quantum of damages

Question 19

What are the key findings in Cooke & Midland Heart v MGN

Answer 19

• S1(1) ‘requires a claimant to show that serious harm has been caused or is likely to be caused to his reputation. It is not enough to show that the publication has caused or is likely to cause serious distress or injury to feelings’ (per Bean J., [30])
• The words ‘has caused’ involve looking back wards in time, the words ‘or is likely to cause’ involve looking forwards
• ‘Likely’ did not need to be evaluated in this case –both legal teams accepted as common ground that this meant it ‘only be established where the court is satisfied that it is more probable than not that it will occur in the future’ (per Bean J., [33])
• Prominent apology was sufficient to eradicate the unfavourable opinion of a HRR who had read both articles

Question 20

what does Inferring ‘Serious Harm’ mean

Answer 20

simply put
↳some statements are so obviously likely to cause serious harm to a persons reputation that this likelihood can be inferred
↳ The likelihood of serious harm to reputation is plain, even if the individual’s family and friends knew the allegation to be untrue

‘I do not accept that in every case evidence will be required to satisfy the serious harm test. Some statements are so obviously likely to cause serious harm to a person’s reputation that this likelihood can be inferred. If a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile, then in either case(putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation is plain, even if the individual’s family and friends knew the allegation to be untrue. In such a case the matter would be taken no further by requiring the claimant to incur the expense of commissioning an opinion poll survey, or to produce a selection of comments from the blogosphere which might in any event be unrepresentative of the population of “right thinking people” generally’ (per Bean J., [43]

Question 21

what is ‘the shelf-life of a sting’ ?

Answer 21

↳ ‘The purpose of a libel action is vindication of a claimant’s reputation.

↳A claimant who wishes to achieve this end by swift remedial action will wanthis action to be heard as soon as possible.

↳Such claims ought therefore to be pursued with vigour,especially in view of the ephemeral nature of most media publications.

↳ These considerations have led to the uniquely short limitation period of one year which applies to such claims and explain why the disapplication of the limitation period inl ibel actions is often described as exceptional’: Reed Elsevier v. Bewry [2014] EWCA Civ 1411 (per SharpLJ [5])*

↳‘The limitation period in defamation is uniquely short, but still allows a year. One should be wary of drawing adverse inferences against a claimant who promptly seeks legal advice and makes complain twell within the limitation period’: Lachaux (perWarby J., [127]