Defamation

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Key principles:

• Law on defamation protects against injury to reputation- it doesn’t focus on the thing itself

• Human rights in play – Art 10 ECHR (freedom of expression); Art 8 ECHR (right to private home life)

• Distinction between libel (generally written, and therefore seen as permanent) and slander (generally spoken, and therefore seen as temporary, which requires actual damage to have occurred before damages can be sought)

  • Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd

Defamation in relation to a statement in a film

Held: libel, as it was a permanent form of expression

• Certain parties cannot sue in defamation: i.e. governmental bodies, political parties, and the estates of the dead.

The Defamation Act

This area of the law was recently reformed by the Defamation Act 2013 (in force since 1 January 2014):

• The Defamation Act 2013 removes the presumption of jury trial for defamation cases with the theory that trials would be quicker and therefore cheaper.

  • However, there weren’t that many cases that went to trial under the old law because a judge would view the case before submitting it to a jury

• Upholds the distinction between libel & slander

Slander

Requirement of special damage

Proof of actual injury required as a control limit – slander is temporary unlike published defamatory statements which are permanent

Exceptional cases of slander actionable without proof of injury:

• Imputation of criminal conduct: specifically of a crime that is punishable by imprisonment

Gray v Jones

The phrase “you are a convicted person; I won’t have you here” overheard by another.

Held: no need to prove actual damage with an allegation like that if the defamatory statement was of criminal conduct punishable by imprisonment

• Imputation of unfitness in business – most frequently invoked exception

Defamation Act 1952, s.2 “In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

• Imputation of certain contagious diseases (abolished)

  • Bloodworth v Gray

Allegation “he’s got that damn pox”

Held: gave compensation for defamation despite the fact there was no proof of special damage

• Imputation of infidelity against women (abolished)

Slander of Women Act 1891 This section provides that in an action for slander ("words spoken and published"), brought by a female plaintiff in respect of words that impute unchastity or adultery to her, it is not necessary for her to allege or prove that she has suffered special damage.

Defamation

Defamation involves:

1. A defamatory statement

2. Identification of the claimant

3. Publication

If C shows each of these limbs, then the burden shifts to D to establish a defence e.g. that the statement was true

Establishing a defamatory statement

When is a statement defamatory?

Defamation is concerned with defending people’s reputations; so a defamatory statement is one which lowers the claimant’s reputation. It is not concerned with upsetting the claimant.

• “tends to lower the claimant’s reputation in the estimation of right-minded people in society” Sim v Stretch

Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd

Film depicting a russian princess who had been raped/seduced by Rasputin

Held: found to be libellous

• A defamatory statement is one which “causes him to be shunned or avoided by people”

Monson v Tussauds Ltd

Monson was infamous for a while; having been tried in Scotland for murder he was found that the charge hadn’t been proven. Madame Tussauds put him in one of their wax museums, in amidst a figure of Napoleon & someone who had committed suicide to avoid arrest & a murderer & a missing murderer. He felt guilty by association

Held: found to be libellous

Berkoff v Burchill

Burchill said Berkoff was ‘hideously ugly’

Held: (CA) capable of being interpreted as defamatory. A word may be defamatory if it causes right minded members of society to ridicule the claimant

Charleston v News Group Newspapers Ltd

Two actors who portrayed Madge & Harold in Neighbours were transposed onto a pornographic computer game. A newspaper ran this with the headline ‘what’s Harold up to with our Madge?’ but didn’t explain the game until the main body

Held: (HL) the story as a whole must be construed – the question is how an ordinary reasonable fair-minded reader would interpret the story & the average person would read the whole thing

• Lord Bridge; the claimant may be right that not everyone would read the whole story, but that they had to judge the writing/images as a whole, and judge by an objective standard

Byrne v Deane

Allegation that a defamatory statement had been posted to a golf club – stating that C had informed the police that the club were illegally using gambling machines

Held: it must be asked whether a right-minded member of society would think less of C, or shun or ridicule. Applying this, though his friends may have thought badly of him for grassing up the club, a right-minded member of society wouldn’t think badly of him for informing the police of illegal activity

Now, however, as we no longer have a presumption of jury trial, judges decide how like-minded members of society would interpret the allegation.

Threshold requirement of seriousness

Thornton v Telegraph Media Group Ltd

Held: claims must pass a threshold of seriousness

S.1 Defamation Act 2013:

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

(2)For the purposes of this section, 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...

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