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Law Notes Tort Law Notes

Requirements For Defamation Notes

Updated Requirements For Defamation Notes

Tort Law Notes

Tort Law

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Requirements for Defamation

  • Is the statement defamatory?

    • May be either express of veiled (innuendo)

      • Express statement = “C works for the Mafia”

      • Innuendo

        • True (legal)

          • One where attack is hidden without knowledge of special terms used

            • Which C must show the receivers of the statement would be able to interpret correctly.

            • E.g. A publishes that “C works for the Family Business”

              • When C’s father has been found guilty of organised crime

                • On its own, would not be an attack

                • With the special knowledge = legal innuendo and potential defamation.

        • Cassidy v Daily Mirror Newspaper Ltd [1929]:

          • X announced his engagement to Z, which was published in a newspaper (D). Unbeknown to D, A was actually married to X, and as such her acquaintances’ estimations of her lowered.

          • Scrutton LJ:

            • If D publishes words reasonably capable of being read as relating directly / indirectly to A

              • And to those who know extraneous facts about A the words are capable of a defamatory meaning,

                • D must take the consequences of the defamatory inferences.

        • False (popular)

          • Where a reasonable person would infer the defamatory statement from what is published

            • E.g. A publishes that “C works for the Family business”

              • Which C then proves is a well known slang term for the mafia

                • Thus, ordinary person would draw inference that C works for mafia without any special knowledge beyond that of well-known slang.

          • Lewis v Daily Telegraph [1964]:

          • D published two reports which alleged the police were inquiring into C’s business. C alleged that people would draw the conclusion that C was being investigated for fraud.

            • Lord Reid:

              • Sometimes the libellous sting is contained in the words themselves

                • On other occasions the sting is not so much in the words themselves

                  • But in what the ordinary person will infer from them.

              • General principle =

                • Would ordinary reasonable man understand words of to expose C to hatred/contempt/ridicule?

            • Lord Hodson:

              • There is one cause of action for the ordinary meaning of words

                • And another for “true” innuendo that depends on extraneous facts to give defamatory meanings to words

                  • But not another cause of action for “false innuendo”.

    • But must harm C’s reputation

      • Definition of harm to reputation

        • Scrutton LJ in Tournier v National Provincial Bank:

          • Where words in mind of a reasonable man calculated to expose C to hatred, ridicule or contempt.

        • Youssoupoff v. MGM Pictures Ltd:

          • Scrutton LJ

            • C has right to have his reputation unaffected by false discrediting allegations

              • If false allegations made without lawful excuse causing damage

                • he has a right of action

          • Slesser LJ:

            • Defamatory not only for hate and ridicule

              • But also if C thereby becomes shunned and avoided without any moral discredit on C.

        • Lord Atkin in Sim v Stretch:

          • Words that tend to lower the plaintiff in the estimation of right-thinking members of society generally

          • Giliker: Thus, fact your reputation is lowered in the eyes of your mates who might not be held to this same standard is irrelevant

            • E.g. being falsely accused of reporting illegal betting machines to police, who then remove them

              • Might lower your reputation in the eyes of those in the golf club who like to use them

                • But not reasonable people who would consider this accusation to be a compliment.

        • Berkoff v Burchill [1996]:

        • D wrote an article where she humorously expressed the view that Berkoff, a director, was hideously ugly. Berkoff sued.

          • Niell LJ (maj)

            • Reputation = all aspects of C’s standing in the community.

              • Bad manners and comments that cause hurt and annoyance are not the same as attacks on character

                • But you have to look at context as a whole to see if they damage C’s reputation.

          • Millet LJ (dis)

            • A decision that it is an actionable wrong to poke fun would be an unwarranted restriction on free speech.

              • People should be allowed to do this without fear of litigation.

            • Insults may ridicule a man

              • But they don’t expose him to ridicule

                • And only in the latter case should defamation lie.

    • Giliker: Courts will generally take a contextual view when deciding whether a statement is defamatory or not

      • While taking the approach of a reasonable person in that context

        • Thus facts of the case are very important.


  • Does the statement refer to C?

    • Is a simple matter where C is named. But where C isn’t named....

    • Morgan v Oldham Press [1971]:

      • Lord Morris

        • Where C is not named,

          • the test which decides whether the words used refer to him

            • is the question whether the words are such as would reasonably lead persons acquainted with C

              • to believe that he was the person referred to

      • Lord Reid

        • CoA wanted an extra requirement – that must be “initials, some asterisk, some reference to him” in article in order to identify C

          • BUT Making a reference to Y

            • Could lead to defamation on Z, even though he’s not actually identified or referenced

              • And it would be unfair in many cases to deny Z an action

      • Lord Guest (dis)

        • Should not be sufficient for the reader to say “I wonder if the article refers to C”

          • Nor that a reasonable person believes that the words refer to the plaintiff.

            • The ordinary reader must have rational grounds for his belief that the words refer to the plaintiff.

    • Cassidy v Daily Mirror Newspapers [1929]:

      • Scrutton LJ

        • One must consider not what the words are

          • But would conclusions could be reasonably drawn from it

        • Alleged libel doesn’t mention H

          • But words published about H may then be defamatory to P

          • E.g. “H has taken to drink, it is hereditary”

            • Although doesn’t mention H’s parents

              • To persons who know H’s parents it is potentially defamatory.

      • Giliker: Thus, although specialists might be able to draw the conclusion that C is not referred to

        • If an ordinary person would only scan the article

          • And this scan would lead them to believe C was referred to

            • This latter approach would be taken by the court when assessing...

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