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Defamation

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by

Claire Turner

on 14 April 2016

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Transcript of Defamation

Defamation
Freedom of Expression
Art 10

Protection of Reputation
Is it libel or slander?

proof of special damage unless
Slander
Imputation of a criminal offence
Libel
Defamation Act 2013
Serious Harm
'a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant
Trading for profit
Is statement defamatory ?
Harms their reputation
Sim v Stretch
Youssoupoff v MGM
Innuendo
True/legal
False/popular
Tolley v JS Fry & Sons
Lewis v Daily Telegraph
Must look at the whole article
Charleston v News Group Newspapers
Refer to Claimant
Peg/pointer not necessary
Intention irrelevant
True of another individual
Mistaken Photo
Group
Used to be actionable per se (ie without proof of special damage, but now subject to:
Gray v Jones
Imputation relating to office, trade or calling
MacManus v Beckham
S1(1)
S1(2) '...harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss'
Both now subject to
Elements of Defamation
S15 Defamation Act 2013
'Statement" means words, pictures, visual images, gestures or any other method of signifying meaning'
Lord Atkin
when they 'tend to lower the plaintiff in the estimation of right-thinking members of society generally
Circumstances where the claimant is '
shunned or avoided'
Reasonable person test
Lewis v Daily Telegraph
Person who is fair-minded, neither unduly suspicious or unduly naive, nor avid for scandal, nor bound to select one defamatory meaning when non-defamatory meanings are available'
Byrne v Deane
Allegation that reporting a crime to the police could not lower the reputation of the claimant
Danger that the objective standard may rise above the general standard of society
Berkoff v Burchill
A defamatory statement in relation to a person in the public eye would expose him to ridicule
Morgan v Oldhams Press
Intention or belief in the truth of the statement is irrelevant as it is objective test
Intention
Vulgar Abuse
Thornley v Kerry
No action
Field v Davies
Calling a married woman a 'tramp'
Morgan v Oldhams Press
Hulton v Jones
Newstead v London
O'Shea v MGM
Knuppfer v London
Lord Porter advised that in deciding whether the article was capable of referring to the claimant, the court should examine the size of the class, the generality of the charge and the extravagance of the accusation.
Published to a Third Party
Test reasonable foresight
Repetition
Omission
Wenhak v Morgan
Theaker v Richardson
Huth v Huth
Pullman v Hill
Slipper v BBC
Natural and probable consequence
Cairns v Modi
Tweet on twitter
Vitzelly
Defamation Act 1996 S1
Bryne v Deane
Removal within a reasonable time
Defences
Unintentional
S4 Defamation Act 1952
Sections 2 to 4
Defamation Act 1996
Offer of Amends
Consent
Truth
S2 Defamation Act 2013
Subsection 1
'It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement is substantially true
Subsection 2
'subsection 3 applies in an action for defamation if the statement complained of conveys two or more distinct imputations
Subsection 3
Truth
2 or more imputations
Substantial Truth
If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation
Substantial Truth
Wakley v Cooke and Healy
Libellous journalist
Honest Opinion
S3 Defamation Act 2013

Judgment once obtained. But because words by innuendo capable of meaning P was int he habit of libeling, not justified as they referred to only one previous incident
Alexander v North Eastern Railway Co
Stated P convicted of an offence of dishonesty and sentenced to three weeks imprisonment and payment of a fine. In fact only two weeks.
Replaces S5 Defamation Act 1952
Have to prove the 'sting' in the charge.
Williams v Reason
Welsh rugby player sued in respect of an allegation of writing a book for profit contrary to his amateur status. Previously took money for wearing a brand of boots. Allegation Williams had compromised his amateur status.
Bookbinder v Tebbit
Allegation specific - cannot rely on the common sting.
3 conditions
Statement of opinion
Statement complained of indicated, whether in general or specific terms, the basis of the opinion
'An honest person could have held the opinion on the basis of
any fact which existed at the time the statement complained of published;
anything asserted to be a fact in a privileged statement published before the statement complained of
Claim defeated if claimant shows that the defendant did not hold the opinion
Defeated
Published by another
Unless
Above does not apply '
in a case where the statement complained of was published by the defendant but made by another person (the author) and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion
'
Fact
Privilege
For the purposes of subsection 4(b a statement is a 'privileged statement' if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it
Section 4
(Public interest)
Section 6
Peer reviewed statement scientific or academic journal
Section 14
Court proceedings
Section 15
Qualified privilege
Repeals Section 6 Defamation Act 1952
ie malice
Spiller v Joseph
Comment must explicitly or implicitly indicate in general terms the facts on which it is based
Privilege
Absolute
Qualified
Parliamentary
Can be waived
Judicial
Can include between a solicitor and client, and contemporaneous reports of public proceedings in court
Executive
Reports, papers, votes and proceedings ordered to be published by either House
Communication between officers of the State
Reciprocal duty and interest
Watt v Longsdon
Malice defeats a claim of QP
Public Interest
Section 4 - It is a defence to an action for defamation to show that
the statement complained of was, or formed part of, a statement on a matter of public interest;
and
the defendant rely believed that publishing the statement complained of was in the public interest
...must have regard to all the circumstances of the case
Public interest
Belief
Circumstances
Dispute
If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of imputation conveyed by it
Editorial judgement
In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make allowance for editorial judgement as it considers appropriate
Fact or opinion
For the avoidance of doubt the defence under this may be relied upon irrespective of whether the statement complained of is a statement of fact or statement of opinion.
Reynolds defence abolished
Websites
Section 5
Not the operator who posted the statement on the website
Defeated
Didn't Post
Can't identify the person who posted the statement
Notice of complaint
Identification
the claimant gave the operator a notice of complaint in relation to the statement
No response
the operator failed to respond to the notice of complain in accordance with any provision contained in regulations
Complainant's Name
Why defamatory
Specifies where on the website the statement was posted
Information specified in regulations
Peer reviewed statement in scientific or academic journal
Full transcript