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Defamation Notes

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DEFAMATION

Basi s: reputations shouldn't be damaged by untrue facts

Has constitutional flavour - freedom of press/expression (Art 10) v right to private life (Art 8)

Mor e legislation has emerged owing to public interest

Basi c definition: publication of a statement by D referring to C that would tend to lower C's reputation in eyes of society - Sim v Stretch


Pri ma facie strict liability but there are defences - but reverse burden (on D)
I)

LIBEL

V SLANDER

Libe l: publication of defamatory statement in permanent form

Slan der: spoken word/conduct/non-permanent expression s.16


6 Broadcasting Act 90 broadcast words = libel, same for theatre s.4 Theatres Act 68

Bot h subject to requirement of 'serious harm' (below) but slander actionable per se in certain circumstances - normally subject to 'special damage' requirement

Spe cial damages: loss of money/benefit estimable in money

s.2
Defamation Act 1952 no need to allege any special damage where words at the time of publication
(whether or not spoken in the way of this business etc)
but


must prove 'special damage' where statement conveys implication that person has contagious
/infectious disease - s.14(2) DA 2013s


s.14
(1) means no longer actionable per se to say a woman is unchaste


It is actionable per se to allege a criminal offence punishable by imprisonment

II) WHO CAN BRING AN ACTION?


Derbyshire CC v The Times HL: public authorities can't sue as matter of common law so that individuals are free to criticise the government (though politicians/ministers can still sue)
Gol


dsmith v Boyruhl: bar extends to political parties

Jam


eel v WSJ No3: Lord Bingham companies can sue as their reputations are of value to them

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But
Hale noted increasingly hard to distinguish governmental & non-governmental because of immense power

III) ELEMENTS:

i)

Publ ication:


Mus t be published/said to a 3rd party (not just C)


Hut h v Huth butler read private letter but intended to be private thus no publication


Bry ne v Deane shows how broad - notice on wall - D in charge of notices so hd authority to remove it
- implied consent - thus party to it and liable


Pull man v Hill negligent publication suffices


Exce ptions: communications between spouses & typists (Weenback v Morgan)
a)

Republication?


Slip per v BBC BBC broadcast picked up by other media outlets - BBC said liability limited to their initial audience - CA said no - full!


Def amatory statements objectionable not least because of propensity to percolate/contaminate


Mc
Manus v Beckham B said shopkeeper should be ashamed for selling fakes - picked up by media
- CA said liable if should have been aware of considerable risk of re-publication

b)

Inte rnet


Rais es questions about who is a publisher etc


God frey v Demon Internet 01: D = internet service provider - G said defamed by article on page hosted by D - court said simply hosting isn't publication but once informed by G did become publishers


Bun t v Tilley 07: internet service provider unaware of statement thus not publication


Met
International Schools v Designtechnica 11: C's name in google search linked to defamatory comments - held not publication - automatic search google merely facilitated & too difficult to remove everything


Tam iz v I Inc 13 defamatory blog hosted by google - CA said yes publishers - had sufficient control once had knowledge could have easily removed
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S.5
DA 2013 (Operators of Websites) defence for website operators show it was not them who posted statement but it will fail if impossible show who posted it, C gave operator notice &
operator failed respond

c)

Publ ication 'defences'


s.1
DA 96 publishers who aren't authors, editors, or commercial publishers have defence if took reasonable care in publication, and didn't know or have reason to believe that what he did caused of contributed to publication of statement


s.10
DA 13 no jurisdiction to hear actions against those who aren't author, editor or publisher unless court satisfied is not reasonably practicable for author, editor or publisher be sued


s.2
DA 96 offer to publish apology & pay damages if accepted will end the action, if not accepted one has defence they had no reason to believe statement was false/defamatory

ii) Defamatory:
a)
Mea ning


Sing le meaning rule! Charleston v News Group court required determine single meaning conveyed to notional reasonable reader, proceeding on assumption this was the one sense in which all reasonable readers understood it


Jeyn es v News Group: Lord Clarke MR guides single meaning rule… that which would be conveyed to the reasonable person, who is taken as representative of those who would read the publication, who is not naive but not unduly suspicious, who doesn't necessarily interpret words as would a lawyer & can engage in loose thinking (is an objective test)


Cha rleston: meaning has to be read in its context, reasonable reader is taken to read the entirety of article - here pics of celebrities superimposed into pornographic poses, article made clear was faked
Mc


Alpine v Bercow 13: rumours of conservative pedo *innocent face* at end of tweet had clear defamatory implication but not genuinely asking the question as argued, reasonable Twitter user understood it as ironic b)

Wh at is a defamatory statement?


Par miter v Coupland: a publication calculated to expose one to hatred, contempt or ridicule or


Sim v Stretch: lowering one's estimation in right thinking members of society generally

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Toll ey v Fry: advert with amateur golfer's image suggested he was paid, taking sponsorship not allowed
You soupoff v MGN: Defamatory if statement causes one to be shunned/avoided in society (film suggested Russian Princess was raped)
Byr ne v Deane: grassing on someone not libellous - might lower reputation in criminal fraternity but not ordinary society
Bob
Crow v Boris Johnson: J campaigned by saying if didn't vote for him you get several negatives
'… and Bob Crow' - not defamatory - in context of election anyone would just read as partisan and no more = no taint on character/reputation - just about plikictal beliefs
Kra use v Associated Newspapers: report that C was a weak (physically) transsexual, not defamatory because wouldn't be thought less of
Bro wn v Bower 17: 'rough sex with rent boys', conceded as defamatory: was doubted whether would lower one's reputation, difficult to pass moral judgement about sexual activities between consenting adults in modern pluralistic society
Test
= objective - about reasonable/right thinking person - based on social values but note more difficulty now no jury - that was a good indicator - judge may have tough call

c)

Mea ning when repeating/reporting allegations made by another


Lew is v Daily Telegraph Lord Devlin you can't escape liability by saying 'I have been told/it is rumoured that' - must prove the subject matter is true


Bro wn v Bower 17 Bower wrote a book saying Brown was accused by newspapers of paying boys for rough sex - held merely reporting the allegation, not adopting the underlying implication

d)

True innuendo


Wor ds which are defamatory only tho those who know particular facts


Full am v Newcastle Chronicle and Journal N said F left priesthood 7y ago - implied he had married & had kids whilst priest - Catholics say no to that - had left many years before


Held only defamatory to those who had known him before him - no evidence any of them had read so not defamatory

e)

Stric t Liability
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