Defamation 1 Notes

Tort Law : Defamation 1

Background

• Tort of defamation designed to protect claimants from untrue statements that harm their reputation in the eyes of others.

• An untrue statement that does not damage the C’s reputation, but does cause harm, is not defamatory (Eg a statement that a trader has ceased business)—this is actionable under the tort of injurious or malicious falsehood.

• If statement causes damage but does not come under rules of defamation then claimant may be able to sue under malicious falsehood or bring a claim based on invasion of privacy.

• Defamation rules attempt to strike a balance between: (1) public interest in freedom of expression; (2) private interest in maintaining one’s reputation. So large number of defences exist.

• Liability is strict – it does not depend on the intention of the defamer but on the fact of defamation

• Reforms in Defamation Act 2013, in force from 1 Jan 2014: Previous case law is now useful but not binding guide to courts.

• Since the Defamation Act 2013 cases are heard without a jury unless the court orders otherwise (S11(1)): one of very few civil trials which might have a jury.

• Rules from older cases still apply today though what was considered defamatory then may no longer be now.

• Most of liability is still governed by common law but some elements of liability are referred to by the Defamation Acts 1952, 1996 and 2013.

• Most of the defences are covered by the Defamation Acts but some are still covered by common law.

• HRA 1998: could have a profound effect on common law rules and interpretation of the DA 2013. Art 10 ECHR freedom of expression. But also has an exception in the interests of the protection of the reputation of others. And right to reputation has been held to form part of Art 8 right to private and fam life.

Structure for claim

• 1) Does claimant have a right to sue?

• 2) Is statement libel or slander?

• 3) Has claimant has suffered serious harm?

• 4) Has a defamatory statement has been made?

• 5) Does statement refer to the claimant?

• 6) Has statement been published to a valid third party?

• 7) Defences

Definition

• Defamation = the publication of: ‘A statement which tends to lower the C in the estimation of right-thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem (per Lord Atkin, Sim v Stretch (1936)).

Who can sue for defamation?

• Any living human being—all natural and legal persons:

• when you die, any claim is lost—an estate cannot sue, unlike the other torts we look at. If an individual who beings an action for defamation dies before trial, the action dies with him.

  • Family members might be able to sue in their own right, if their own reputation is damaged by the defamation of the deceased—but cannot sue on behalf of deceased.

• Normally groups cannot sue, though individual members can

• Exception—a trading corporation can sue if words affects its trading reputation or property

  • McDonalds v Steel (1995): protestors had published/distributed a leaflet, ‘What’s wrong with McDonalds’. McDonalds sued them in a defamation action, this was allowed, as a trading company.

  • Steel v UK (2005), ECHR: HELD: the UK gov had infringed ECHR by not providing the claimants with legal aid on the facts of htat case; but the Court confirmed that corporations may sue for defamation.

• A government body cannot sue for defamation:

  • Derbyshire CC v Times (1993), HL:

  • HL held: local authorities cannot sue for defamation—because the threat of a civil action would have an inhibiting effect on freedom of speech.

  • Preserving freedom of speech in political discussion and criticism is of particular importance in a democracy.

  • an allegation of financial impropriety—gov body cannot bring a claim for defamation.

  • Goldsmith v Boyruhi (1998): a political party cannot sue for defamation.

• [[NB: individual members of gov are not precluded from suing for defamation—but individual politicians can only realistically sue for defamation for remarks made about their personal, rather than professional political, lives.

  • ECHR has consistently held that politicians must expect to endure a higher level of criticism than lay people, meaning only in exceptional circumstances will defamatory remarks about a politician’s political activities result in a successful claim for defamation (Lingens v Austria, 1986). In most circumstances, a public interest defence will prevail.

Is statement libel or slander?

• Defamation encapsulates two torts—libel and slander: some rules depend on whether the defamation is libel or slander.

• Definition from Monson v Tussauds (1894): slander is in transitory form; libel is in permanent form-will include writing, but also forms such as films, pictures, statutes.

• Libel

• Monson v Tussauds

  • Facts: C had been tried in Scotland for murder; acquitted (Scottish verdict of not proven); Madame Tussauds made a wax effigy of him, implication he had carried out the murders.

  • This was just a waxwork—said it was libel, because was permanent form.

  • Lopes LJ gave egs: statutes, caricatures, effigy, chalk marks on a wall, signs, pictures.

• Youssoupoff v MGM (1934): a film entitled Rasputin, The Mad Monk suggested as a matter of historical fact that the plaintiff had been raped by Rasputin. Film = sufficiently permanent to be a libel.

• CF, mechanically-preserved sound statements are usually slander, unless they fall within statutory exceptions:

  • eg that for radio and television under Broadcasting Act 1990 s166 and s201.

  • Eg for theatric performances in public, Theatres Act 1968 s4.

  • So records, tapes, CDs – arguably not permanent enough to be libel, although arguable.

• Material posted on the internet = libel: Godfrey v Demon Internet (1999).

• Material posted on social networking sites = libel (even if limits on public access to certain pages, eg Facebook)—Applause Stores v Raphael (2008)

• Slander: is defamation in a temporary or transitory form—usually involving speech, but can include...

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