A more recent version of these Defamation 2 notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Tort Law : Defamation 2, Defences & Remedies Recap---structure for claim
?????(1) Does C have a right to sue?
?????(2) Is statement libel or slander?
?????(3) Has C suffered serious harm?
?????(4) Has a defamatory statement been made?
?????(5) Does statement refer to C?
?????(6) Has statement been published to a valid 3rd party?
Defences Defences available
? Privilege o Absolute o Qualified (common law) o Publication in the public interest (statute)
? Honest opinion
? Innocent dissemination
? Operators of websites
? Offer of amends
? Consent: o Chapman v Lord Ellesmere (1973)---if C has given consent, and was aware of content, that is a complete defence.
? Contributory Neg (rare in defamation claims): o Grobbelaar v News Group (2001)---C could do something with lack of care, which then makes the damage to their reputation worse. Eg C plays some part in the publication. Truth???
No liability for defamation in respect of a truth statement. The defamatory imputation must be one of fact. The burden is on D. Malice, knowledge and fault of the D are irrelevant. o i.e. you could publish something thinking it wasn't true, with malicious motive ? but if it turns out to be true, that will be a complete defence. Now covered by S2 DA 2013: o (Defence of justification abolished and replaced by truth). o S2(4): abolished the common law defence of justification, and repeated s5 DA 1952. S2(1)---a new statutory defence of truth
o It is a defence to an action for defamation for the D to show that the imputation conveyed by the statement complained of is substantially true. Eg Irving v Penguin Books (2001): Penguin Books successfully justified its accusation that the claimant author, David Irving, had distorted historical evidence to support his political agenda, including denying the Holocaust. What has to be true?
o The sting of the libel---Grobbelaar v News Group (2002): o Grobbellar a footballer; allegations in The Sun that he was fixing matches in return for bribes. o There was evidence---The Sun had filmed him accepting money. o But jury found: the truth had not been made out, on evidence there wasn't enough of a causative link between accepting money and playing badly. o The sting of the libel was not just taking money, but deliberately playing badly in return for money, which they thought had not been made out. o Note that CA: upheld the jury's finding, but reduced the damages to PS1! [[so found that technically there was defamation, the defence had failed---but the court awarded contemptuous damages]]. Repetition rule---Lewis v Daily Telegraph; Stern v Piper o If you are repeating statements made elsewhere, to rely on defence on truth you have to be able to show yourself that this is true. o Lewis: if one repeats a rumour, one adds one's own authority to it, implying that it is well-founded, that is so say true. 'Substantially true': o Don't have to show that every detail is accurate, only substantially true. o Alexander v North Eastern Railway (1865): o A commuter travelling without a ticket. o The defence was allowed (the earlier common law defence of justification) despite the D's minor error in a publication as the plaintiff receiving 3 weeks imprisonment instead of 2. o They got some details wrong (about the days spent in jail)---
but it was substantially true, the sting of the libel was true. If more than one imputation--IF more than one allegation---
what if one statement is true, one is not?
o S2(3): 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
2 ?reputation. [[this replaces has the same effect as s5 DA 1925]]. o Robson v Newsgroup: o Allegation that C had defrauded the social services (which wasn't true); and that he had been convicted of a mortgage fraud (which was true). o HELD: the former untrue statement didn't damage his statement more than it was already by the true statement. So defence of truth worked, even though one statement was untrue. o Rothschild v Associated Newspapers (2013), CA o Story that C had sought to impress a Russian oligarch with friendship with a n EU Trade Commissioner (Peter Mandelson) during a trip to Siberia. Shown to be substantially true, and had no less sting than the untrue story that the C had also taken the Commissioner to dinner with the oligarch, so the defence succeeded. o One specific allegation (about flying to Russia to have dinner with oligarchs) was untrue; but other allegations, about meeting up with them, were true. o The false allegation didn't damage reputation more than the statements which were true---so HELD: defence of truth worked. (Now need to take into account the requirement for serious harm under s1(1) DA 2013). Re criminal convictions, s13 of Civil Evidence Act 1968 states: a conviction for an offence constitutes conclusive proof, for the purposes of truth in a defamation claim, that the person convicted committed the crime for which they have been convicted.
? Balance between freedom of speech and protecting personal reputations.
? Absolute privilege---the occasion demands total freedom in the communication of views and information.
? Gives complete protection to certain statements, no matter how malicious or untrue they might be. Rationale: desirability on such occasions of freedom of expression.
? Egs: o Statements in Parliament and reports. [[protected by Article 9 Bill of Rights 1688]]. o Statements made in official Parliamentary papers (Parliamentary Papers Act 1840, s1). o Statements in court judicial proceedings (by common law) o Court reports: fair and accurate contemporaneous reporting of public judicial proceedings (Defamation Act 1996, s14).
3 o Statements between ministers or other officers of State in the course of their duties. o Communications between lawyer and client in relation to judicial proceedings. o (NB: malice is irrelevant, intentions irrelevant). Privilege-qualified (common law)
??? ?Like absolute privilege, but only protects statements made without malice (hence 'qualified').
? ?? ? If D has acted with malice---no qualified privilege defence.
? ?? ? Malice means the D had no honest belief in the truth of what he is saying, or acts out of an improper motive (Horrocks v Lowe, 1975).
??? ?The need for freedom of speech is not so great as absolute privilege, but requires some protection from the threat of litigation.
? ?? ? Eg---statements made to protect public or private interests-Adam v Ward (1917)
??? ?(1) D had a legal, social or moral duty to communicate the information.
??? ?(2) The person to whom it is published had a duty to receive it.
??? ?(3) the material is in the public interest
??? ?(4) There was no malice [[this defence will be defeated by malice]]
? ?? ? egs of (1) and (2): o Todd v Hawkins (1837); o Watt v Longsdon (1930)---eg of statements made in pursuance of a legal, social or moral duty o Clift v Slough o A violent person's register
? ?? ? (1) and (2)---the duty must be reciprocal (Downtex v Flatley (2003), CA: o That is, there must be a duty on the part of the publisher to impart the info to the relevant audience; AND a duty on the part of the audience to receive the information.
? ?? ? (3)---the material is in the 'public interest' o London Artists v Littler o Actors involved in a plot to close a West End play early. o HELD: yes, was in public interest. o Denning made point that we never really define public interest, hard to quantify. o Flood v Times (2012): o When looking at public interest, need to look at content of the information, not just that it's been passed on. Did they need to know all those details?
? ?? ? (4)---no malice, what is meant by malice?
4 o Although D must prove that the defence of qualified privilege applies, the C bears the onus of showing that D acted with malice: o Eg of malice---Angel v HH Bushell & Co (1968): o D wrote a letter to a friend stating that C 'did not know normal business ethics'. His claim of qualified privilege failed---
because there was evidence he had been motivated by anger, rather than a genuine desire to bring wrong-doing to the attention of a fellow businessman. o Lillie and Reed v Newcastle City Council & ors (2002): o The Council set up a review team to investigate complaints of child abuse against the claimants, two nursery nurses. o The review team concluded in its report that the Cs had sexually abused children at the nursery, even though there was no evidence to suggest this. o Although the review team was entitled to qualified privilege, it lost the protection of this defence because its members acted maliciously, in that they knew that their fundamental findings were not true. o Horrocks v Lowe (1975): The C has to show malice---this is very unusual, normally D has burden of proving the defence. Malice means the D had no honest belief in the truth of what he is saying, or acts out of an improper motive o Al-Fagih v HH Saudi Research (2001): o What is malice---Dr Adu Aezick Seray-Wurtie v The Charity Commission (2008) o A successful allegation of malice 'must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice; in the sense that the relevant person was either dishonest in making the defamatory communication or had a dominant motive to injure the claimant' (per Eady J).
? ?? ? Generally, these forms of privilege can be divided into publications to limited audiences (eg employment references); or publications to the public at large:
? ?? ? For the limited audience category, what is required is usually some form of relationship between the speaker and the recipient. Eg relationship between the Bar Council and members of the bar---statements made by the Bar Council to its members will be privileged unless made with malice (Kearns v General Council of the Bar (2003)). Privilege-qualified (statute)
? Most important egs of statutory qualified privilege: Fair &
accurate reports of judicial proceedings (s15 CA 1996 read with Part 1 Sch 1).
Buy the full version of these notes or essay plans and more in our GDL Tort Law Notes.