Defamation Liability Notes

• Introduction + General Principles

  - Defamation: to protect c. from untrue statements that harm his reputation.

  • (cf. malicious falsehood: untrue statement that does not damage reputation but does harm).

  • balance between 2 interests:

    • 1. public interest: freedom of expression.

      • large variety of defences: to protect d’s freedom of expression.

    • 2. private interest: maintaining reputation.

  • + Human Rights Act 1998: Art 10 ECHR – guarantees freedom of expression vs. Art 8 ECHR – right to private + family life.

  - Definitions:

  • [Winfield]: publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him.

  • Sim v Stretch [1936]: [Ld Atkin]: statement which tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular to cause him to be regarded with feelings hatred, contempt, ridicule, fear and disesteem.

  2 Torts: Libel + Slander

  - Libel: statement in some permanent form – e.g. pictures, printed words etc. actionable per se.

  • radio + TV – s166 + s201 Broadcasting Act 1990.

  • public plays – s4 Theatres Act 1968.

  • waxworks – Monson v Madame Tussaud’s Ltd [1894]: waxwork of c. placed in chamber of horrors; c. had been tried for murder but acquitted [Ropes LJ]: statues, caricatures, effigies, chalk marks, signs, pictures also.

  • films – Youssoupoff v MGM Pictures Ltd [1934]: film suggested c. had been raped by Rasputin

  • internet – Godfrey v Demon Internet [1994].

    • inc. social networking (even if semi-private) – Applause Stores Productions Ltd v Raphael [2008].

  - Slander: statement in temporary/transitory form actionable only with proof of special damages (but 4 exceptions).

  • transient forms: e.g. spoken word, gestures, mimes, impressions, noises.

    • debate: audio stored on CD, tape, DVD [Winfield]: libel; vs. [Street]: slander (libel inherently visual).

  • 4 exceptions – slander actionable per se if:

    • 1. imputation of imprisonable offence: Gray v Jones [1939]; Webb v Beavan [1883].

    • 2. imputation of having contagious/unsociable disease: Bloodworth v Gray [1844].

    • 3. imputation of unchasity of adultery in female: s1 Slander of Women Act 1891.

      • Kerr v Kennedy [1942]: inc. suggestion that c. is (sexually active) lesbian.

    • 4. imputation of unfitness for trade, profession or appointment: s2 Defamation Act 1952.

      • e.g. Jones v Jones [1916]; Hopwood v Muirson [1945]; McManus v Beckham [2002]: Victoria Beckham told customers in shop that David Beckham’s autograph for sale fake.

  Locus Standi: Who Can Sue?

  - Natural + legal persons can sue.

  • natural persons: but not dead – if c. dies before trial, action dies with him.

  • corporate bodies: where statement defames corporate reputation.

    • McDonalds Corporation v Steel [1999]: McDonalds succeeded in libel suit vs. environmentalists.

      • (N.B. Steel v UK [2005]: ECHR – UK infringed ECHR by not providing ds. with legal aid, but confirmed that corporation had locus standi).

        - Public authorities may NOT sue – Derbyshire CC v Times Newspapers [1993; HoL].

  • rationale: protect political speech – threat of civil action would inhibit freedom of speech.

  • inc. political parties – Goldsmith v Bhoyrul [1997].

  • inc. trade unions: unincorporated bodies.

  • N.B. individuals within govt. can sue in own right – for remarks about personal, not professional lives.

    • BUT: ECtHR: politicians must expect greater criticism + scrutiny – Lingens v Austria [1986].

    • public interest defence usually prevails: e.g. Reynolds [1999].

      Elements of Defamation

      - Claimant must establish 3 elements on balance of probabilities:

  • 1. statement was defamatory: a. capable of being defamatory; b. actually defamatory.

  • 2. statement referred to the claimant.

  • 3. statement was published (communicated) to 3^rd party.

    - Other considerations:

  • 4. slander not actionable per se: special damage must be proved.

  • 5. defences.

  1. Defamatory Statement

  - Test: do words in ordinary + natural meaning defame the claimant? – 2 questions:

  • 1. what is meaning of words used?

    • ‘sting’/bane: defamatory meaning c. wishes to rely upon.

    • antidote: some fact that counters the ‘sting’.

  • 2. is that meaning defamatory?

  - Who decides?

  • judge: det. whether statement capable of bearing suggested meaning + defaming claimant – s7 Defamation Act.

  • jury: det. actual meaning of words + whether it is defamatory.

    • must establish standard: right thinking members of society – Byrne v Deane [1937].

  Meaning of the Words

  - 1. Ordinary + natural meaning.

  • Harvey v French [1832]: [Ld Tenterden CJ]: ‘in the sense in which ordinary persons … would understand them’.

  • Lewis v Daily Telegraph [1963]: [Devlin LJ]: what is the meaning the words convey to the ordinary man?

  - 2. Innuendo: ordinary + natural meaning not defamatory but statement defamatory because of secondary meaning.

  • a. false (popular) innuendo: extended meaning, e.g. sarcasm, puns, colloquialisms, slang.

    • Allsop v Church of England Newspaper Ltd [1972]: d. referred to c. (BBC host) as having ‘preoccupation with the bent’; c. claimed this meant ‘sexually perverted’, d. claimed it meant ‘bizzare’.

    • Plumb v Jeyes Sanitary Compounds [1937]: policeman sued d. for using photograph of him to advertise foot bath defamatory: implied feet so disgusting that ordinary soap not enough.

  • b. true (legal) innuendo: defamatory meaning understood by persons with additional extrinsic knowledge.

    • c. must prove at least 1 of audience actually possessed required extrinsic knowledge.

    • Tolley v JS Fry & Sons Ltd [1931]: d. published cartoon of c. (amateur golfer) to advertise chocolate defamatory: suggested c. had compromised amateur status by accepting payment to appear in advert (meaning only derived by those who knew c. was amateur golfer).

    • Cassidy v Daily Mirror [1929]: d. printed picture of c’s husband with young woman described as engaged defamatory: implied c. mistress, not wife.

  - Must consider meaning in...

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