Tort Law - Defamation Super Review

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DEFAMATION

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• Defamation is publication of an untrue statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him
• SLANDER, statement must be in non-permanent form which generally involves spoken words (not involving broadcast); a gesture may suffice; requires special damage; claimant must establish some loss or harm that is quantifiable in financial terms like loss of job or damage to business interest; ACTIONABLE PER SE IF: imputation is that claimant (i) has committed a serious criminal offence; (ii) unchaste or committed adultery (female only); (iii) has contagious or infections disease preventing associating with others; (iv) unfit, dishonest or incompetent in relation to his trade/profession/business
• LIBEL, statement must be in permanent form; usually refers to written statements but includes television broadcasts, cable programmes, theatre; ACTIONABLE PER SE, meaning it is the conduct that is wrong regardless of whether or not any harm is caused to the claimant as a result

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DEFAMATION, more points

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• dead can't bring or defend action for defamation (Broom v J Ritchie & Co (1904), Smith v Dha [2013])
• no more right to trial by jury in simple cases after Defamation Act 2013
• claims must be brought within 12 months, s.4A Limitation Act 1980 (Human Rights issue, art.8 and 10, s.12 of HRA 1998)
• no public funding for defamation; tort favours those who can afford to protect their reputations
• defamation involves unusual two-stage process: judge determines whether facts are capable of amounting to defamation while jury decides whether the facts actually do defame claimant; presumption in favour of jury trial removed by DA 2013

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DEFAMATION, final points

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• The statement must be defamatory
• The statement must be about the claimant
• The statement must be published

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Byrne v Deane [1937] (reputation, right-thinking persons)

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• C was member of golf club who was vilified in verse for reporting presence of popular but illegal gaming machine in the clubhouse
  
• Anyone who would think less of a person for reporting illegal activity to the police was not a right-thinking member of society so the words could not be defamatory; verse implied disloyalty to his club, would erode his standing in the eyes of right-thinking members of society so his case succeeded

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EXAMPLES OF DEFAMATORY STATEMENTS

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• Berkoff v Burchill [1996] "hideously ugly" actor, defamatory, actor in public eye, ordinary reader, defamatory even if not about behaviour or deficiencies
  
• Cassidy v Daily Mirror [1929] married woman depicted as unmarried thus suggesting she was 'living in sin'
• Tolley v JS Fry & Sons Ltd [1931] amateur golfer portrayed as endorsing a well-known chocolate manufacturer (which would have removed his amateur status)
  
• Gillick v BBC [1996] C defamed by factsheet, "morally responsibility for rise in teenage contraception"; statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.
  

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IS THE STATEMENT DEFAMATORY?

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• Parmiter v Coupland (1840) A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule.’
  
• Simmons v Mitchell (1880) Words merely conveying suspicion will not sustain an action for slander. Where such words admit fairly, and in their natural sense, of two meanings, the one being an imputation of suspicion only, the other of guilt, the sense in which they were uttered should be left to the jury. judge decides if capable of two meanings, jury decides which of the two meanings is intended.
  
• Sim v Stretch (1936) telegram not defamatory; 'would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?
  
• Norman v Future Publishing [1999] opera divy stuck, "ain't got no sideways"; not defamatory, line between insult and ridicule, article favourable to her despite joke at her expense
  
• Lewis v Daily Telegraph [1964] C argued newspapers defamed them implying they were guilty of crime for being under police investigation; held words would not hold that meaning to ordinary reader; FALSE OR POPULAR INNUENDO where words bear a meaning that is not their literal meaning but instead constitutes an inference or implication from the words themselves…whether a reasonable reader might read between the lines.
  
• Elton John v Guardian News & Media [2008] preposterously lavish parties; the words complained of in a libel action were not capable of bearing the meaning attached to them by the claimant. No reasonable reader of the publication would have understood the words complained of as containing serious allegations about the claimant and his charitable donations.
  
• Charleston v News Group Newspapers [1995] 2 soap-opera actors sued over photoshop magazine cover; no reader would infer the altered image to impute anything bad about the people in it
• Lord McAlpine of West Green v Bercow [2013] trending Twitter post asking why a named peer was trending was defamatory in circumstances where he was not otherwise in the public eye and there was much speculation as to the identity of an unnamed politician who was guilty of child abuse. The reasonable reader would understand that the writer's addition of the words "innocent face" after asking the question was insincere and ironical.

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Newstead v London Express Newspaper Ltd [1940] (reputation, about the claimant, misidentification of the claimant)

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• D newspaper reported that Harold Newstead age 30 of Camberwell was convicted of bigamy; this was true but another man of same name and age from same place brought action for libel on basis that it was untrue and defamatory in relation to him
• held that the statement was defamatory as the reasonable person would think that the statement referred to the claimant
  

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ABOUT THE CLAIMANT / WHO CAN SUE

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• Knupffer v London Express Newspaper Ltd [1944] agent of Hitler article implication; It is an essential element of the cause of action for defamation that the words complained of should be published "of the plaintiff." If a defamatory statement made of a class or group can reasonably be understood to refer to every member of it, each one has a cause of action.
• Derbyshire County Council v Times Newspapers [1993] newspaper questioned honesty of Council and its members; not liable, in the public interest to scrutinize public body
  
• Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) raped/seduced by Rasputin; libel, pictorial matter
  
• E Hulton & Co v Jones [1910] with a woman not his wife; made up name; no defence to show that the defendant did not intend to defame the plaintiff, if reasonable people would think the language to be defamatory of the plaintiff.
  

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HAS THE STATEMENT BEEN PUBLISHED?

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• Wennhak v Morgan (1888) In an action for libel the fact that the defendant has disclosed the libel to his wife is not evidence of publication.

• Monson v Tussauds Ltd [1894] wax model with gun but C was not proven of murder, so statute capable of being defamatory
  

• Huth v Huth [1915] letter to wife opened by butler; no publication , no evidence of publication to butler, letter only for wife's eyes; she can't bring action for libel
  

• Theaker v Richardson [1962] D sent letter to C with not nice words; C's husband opened the letter; jury found D anticipated a third party opening letter, in this case C's husband, publication, D liable
  

• Slipper v BBC [1991] a court will regard an unauthorized repetition by an independent third party as a novus actus interveniens; film reviews
  

• Loutchansky v Times Newspapers Ltd (Nos2) [2001] C sued D for articles accusing him of international criminal; they plead qualified privilege It is a well-established principle of the English law of defamation that each individual publication of a libel gives rise to a separate cause of action.’

• Tamiz v Google [2013] There was an arguable case that an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might have become a publisher of the material, but the probable damage to the complainant's reputation over a short period was so trivial that the maintenance of libel proceedings could not be justified.
  

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OTHER CASES

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• Steel & Morris v UK (2005) "McLibel" applicants were sued by McDonalds after handing out a six-page leaflet containing allegations damaging allegations about the company, entitled “What’s Wrong with McDonalds" public funding unavailable for defamation cases: Finding violations of Art 6 and Art 10: (1) Denial of legal aid deprived the applicants of the opportunity to present their case effectively before the court – central to the concept of a fair trial.

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Reynolds v Times Newspapers [2001] (Reynolds defence, defamation, qualified privilege)

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• Times published article in Ireland about C that he had misled Irish Parliament; article published in UK without C's explanations that were in original article; C brought action for defamation; defences of justification and fair comment were unavailable given factual nature of article; should defence of qualified privilege be extended to mass media
• 10 criteria of REYNOLDS defence by Lord Nicholls:

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
    

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DEFENCE: PRIVILEGE

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• circumstances in which it is imperative people are able to express their views without fear of legal action; primacy of freedom of expression over rights of individual to protect reputation
• absolute privilege: statements made in Parliament and judicial proceedings; cannot be relied upon in legal proceedings
• qualified privilege: situations where there is a moral or legal duty to disclose information even if it is unfavourable to the claimant, ie employment reference letter; can only be basis of defamation claim if D acted with malice in making the defamatory statement
• Defamation Act 2013 s.6 and s.7

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DEFENCES

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• TRUTH
• HONEST OPINION
• PUBLICATION ON MATTER OF PUBLIC INTEREST
• PRIVILEGE
• OPERATORS OF WEBSITES

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TRUTH

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• Lucas-Box v News Group Newspapers [1986] In raising a plea of justification in a libel action a defendant had to plead the natural and ordinary meaning of the words complained of.
  
• Shah v Standard Chartered Bank [1999] plea of justification based upon a reasonable belief in the claimant’s criminality, could not be established by simply stating that publication had been a repetition of other statements. It must be established by direct reference to conduct of the plaintiff contributing to the suspicion.
  

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HONEST OPINION

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• British Chiropractic Association v Singh [2010] material words were expressions of opinion.
  
• Joseph v Spiller [2010] musical act, contract holds no water; test set out by Lord Nicholls is to be restricted so that it merely requires that “the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.” commentator is not required to provide so much information in order for the defence to succeed; he or she need only “identify … in general terms what it is that the comment is about”.

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PUBLICATION ON MATTER OF PUBLIC INTEREST

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• Jameel v Wall Street Journal [2006] privilege was upheld. The entire article had to be considered when determining whether the defamatory words were protected by privilege. It is not necessary to find a separate public interest justification for each item of information within the publication, but rather for the “thrust” of the article as a whole.
  
• George Galloway v Daily Telegraph [2006] Reynolds defence did not apply as statements were embellished
  
• Flood v Times Newspapers [2012] success of Reynolds defence, police informant, Russian oligarchs; Reynolds defence hinges on what a journalist reasonably knew at the time of publication.
• Flood v Times Newspapers [2013] website publication/republication, decided in C's favour that they should have altered the article earlier, D liable for article defamation 2007 - 2009; readership well informed but widely known that a public official taking bribes is criminal
  

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PRIVILEGE

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• Reynolds v Times Newspapers [2001]

• Buchanan v Jennings [2005] (absolute) Wool board, UK rugby sponsorship; A statement made in Parliament was absolutely privileged. A statement made outside of Parliament might enjoy qualified privilege but would not enjoy absolute privilege, even if reference was made to the earlier privileged statement.
  

• Adam v Ward [1917] (qualified) ‘a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.’ House of Commons speech attack was protected
  

• Watt v Longsdon [1930] (qualified) loss of privilege: (1.) they may exceed the privilege of the occasion by going beyond the limits of the duty or interest, or (2.) they may be published with express malice, so that the occasion is not being legitimately used, but abused.’ D showed letters to C's wife, not nice things about C.
  

• Beach v Freeson [1972] (qualified) MP dealing with complaint re solicitor in his district; A MP has both an interest and a duty to communicate to the appropriate body at the request of a constituent any substantial complaint from the constituent concerning a professional man in practice at the service of the public, and such a communication is the subject of qualified privilege.
  

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SIZE OF AWARDS IN DEFAMATION

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• Elton John v Mirror Group Newspapers [1996] law allows award of exemplary damages to take account of both loss of reputation and distress, hurt and humiliation caused by the publication
  
• McManus v Beckham [2002] if a jury were to conclude that a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage caused by the slander, it is not unjust that the defendant should be liable for it.
  
• Rantzen v Mirror Group Newspapers [1994] Awards of damages by a jury should be more closely scrutinised by the Court of Appeal than hitherto. £250,000 awarded by the jury was excessive because it was not proportionate to the damage she suffered and was reduced to £110,000.
  
• Grobbelaar v News Group Newspapers [2002] found on the facts that Grobbelaar had no reputation to save because he had arranged to 'fix' matches but the Sun had not proved he had done so. Jury's verdict reinstated and £1 derisory damages awarded. Jury's verdict reinstated.