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Defamation Notes

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Defamation

1) What type of defamation applies here?

Libel

a) Defamation in its permanent form


Newspapers, magazines books


Recordings and transmissions that can be reproduced including media broadcasts (s.166 Broadcast Act 1990), radio broadcasts, films, video recordings and internet transmissions


Words spoken in a theatrical production are also libel - s.4(1) Theatres Act 1968

b) Does not have to prove actual damage

Slander

a) Defamation in its transient form


Word of mouth, unrecorded speech

b) Requires proof, in monetary terms, of special damage

2) Does the publication satisfy the three requirements for defamation?

1) The statement is communicated to a third party

a) This will happen when the defamatory comment is published / broadcast

b) The publication must be more than minimal


Where an internet publication was seen by 5 people, 3 of whom were connected to the claimant, this was deemed insufficient to be a 'real and substantial tort' - Dow Jones v Jameel and others

c) The multiple publication rule  Each publication of a defamatory statement gives rise to a separate cause of action - Duke of Brunswick v Harmer

2) The Claimant is identified in the publication

Can be by: a) Reference to the claimant's name b) A photograph c) Description or information about him d) Where you can identify members of a group (small) or class about whom the allegation is made e) Mistakenly by meaning to refer to one person and instead / in addition referring to another Can't be by:


A large group where it is difficult to identify the individual in question

Where the publication is online, the multiple publication rule applies for each 'hit' on the web page, even for archived publications - Loutchansky v Times Newspapers and Otehrs (No2) and Times Newspapers (No.1 and 2) v UK)

3) The language used must be defamatory

a) The test is objective  What would the ordinary, reasonable and fair-minded person think of the statement?

b) "Does the statement tend to lower the claimant in the estimation of the right thinking members of society?


It is for the jury, as the ordinary, reasonable and fair-minded person, to assess this question

c) There are two ways in which the words can be construed:

i) The words will be given their natural and ordinary meaning

ii) Innuendo  The statement is defamatory by reason of another meaning contained in it, or implied by it

True innuendo (requires external knowledge) 
Tooley v Fry Amateur golfer appeared in an advert. It was held this would damage his reputation as an amateur.

False innuendo (clear from words themselves) 

d) The context in which the statement appears is relevant


A defamatory headline can be 'corrected' by the article itself

3) Multiple publication rule

Each publication of a defamatory statement gives rise to a separate cause of action.


E.g. Even if a paper is publishing a story written by someone else / an agency, as the paper is publishing it, the paper will be liable

4) Can the claimant sue?

Who can sue?

A living individual

A company e.g. McDonald's


May also be defamatory to company officers by implication

Who can't sue?

A local authority or government department

Charleston v News Group Newspapers Photo of Harold and Madge implied certain sexual behaviour. Article 'corrected' this by saying the photo was not real. Article should be read as a whole

5) Identify and list those possibly liable (the defendants)

a) Identify the possible defendants

Journalist

Editor

TV station (broadcaster)

Magazine distributor

b) Work through defences for each possible defendant one by one

6) Can the defendant(s) be sued?

Who can be sued?

Any legal entity

Whoever is responsible for the publication / is in the publication chain: a) The actual writer / reporter of the article b) Editor c) Publisher d) Printer e) Bookseller f) Programme maker g) Producer h) Broadcaster i) Distributor j) ISP

7) Where the statement is established as defamatory the burden of proof shits onto defendant

8) Can the Defendant establish a defence to the defamation?

1) Justification

What is it?

Where the statement is true

Requirements

1) Defence will not be defeated by evidence of malice

2) Must show the statement is substantially true /
that the 'sting' of the libel is true


(e.g. say a murdered is 80, cannot sue if murderer is 79 as sting is still true)

3) Burden is on the defendant to show the statement is true

4) Ordinary interpretation of the words as well as any relevant innuendo

2) Fair comment / honest opinion

What is it?

Where the statement is the honest expression of an opinion on a matter of public interest

Requirements Set out in BCA v Singh

1) Comment must be based on facts known to the writer at the time the statement was published

2) The statement must be an opinion based upon the facts, not a statement or inference of fact


Saying 'in my opinion, may help, but is by no means conclusive

3) The statement need not be reasonable, but must be made honestly and without malice

a) Malice is likely to be established if: - Horrocks v Lowe


The defendant did not have an honest belief in the opinion expressed; or


He knew at the time the comment was untrue; or


He was reckless as to whether it was true or not

b) The burden of proof for malice is generally on the claimant

4) The comment must be on a matter of public interest


The defence would not be available in principle for a comment on the private life of a person not in the public eye

3) Absolute privilege

What is it?

In certain situations the law recognises a complete defence of privilege as a matter of public policy

Instances where absolute privilege applies

1) Statements made in parliamentary proceedings

a) The statement maker themselves has absolute privilege

b) Reporting of parliamentary proceedings does not attract absolute privilege (other than in White Papers and Hansard) however may benefit from statutory qualified privilege

2) Statements made in judicial proceedings

a) The statement maker themselves has absolute privilege

b) Reporting of the judicial proceedings has absolute privilege under s.14 DA 1996 if it is: 1) Fair  Should say 'witness said X was a murder', not 'X is a murderer 2) Accurate  Minor inaccuracies are fine, major not 3) Contemporaneous  Contemporaneous =


For a daily paper, the next day paper


For a TV news programme, the next broadcast 3) Statements made to the police

4) Qualified privilege - Statutory privilege - s.15 Defamation Act 1996

What is it?

Covers situations where the maker of the statement had a duty to give the information and the recipient had an interest in receiving this information (e.g. out of a moral or social obligation or duty)

Requirements

Statements made by a witness in a witness statement

1) The publication does not have to be made contemporaneously

2) The defence will be defeated by malice


Malice is defined broadly for QP as where

a) The defendant did not believe the words to be true (or was reckless as to the truth; or

b) The dominant motive for the defendant's statement was improper and an abuse of the occasion that the law protects for policy reasons

3) It must be a statement listed under s.15 DA 1996 and Schedule 1 DA 1996

Statements under Part 1 Schedule 1 Fair and accurate (but not contemporaneous) reports of public proceedings in parliament, courts and public inquiries.


The report must be balanced, so it is reporting what the public would have heard if they had been in court - Qadir v Associated Newspapers


Again, to be balanced, the statement must publish both sides (including any defence) - Qadir v Associated Newspapers Statements under Part 2 Schedule 1 Where the claimant was given a reasonable right to reply and, if so, including proceedings at lawful public meetings called to matters of public concern, UK company shareholder meetings / documents.

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