Includes:
- Defamation Act 2013 – Key Provisions
- The Competing Interests – Expression and Reputation
- Libel
- Slander
- Elements of a claim: DEFAMATION
- Defences: Truth, Honest Opinion, Public Interest Defence, Privilege, Common Law Qualified Privilege, Role of Malice, Statutory Qualified p...
Defamation:
Defamation protects injury reputation rather than hurt feelings
Privacy protects right to keep certain information private – EG: details about your
health, finances and relationships.
Human rights – Arts. 10 and 8 ECHR and HRA s.3(1):“So far as it is possible to do
so, primary legislation and subordinate legislation must be read and given effect in a way
which is compatible with the Convention rights…”
Law reformed by Defamation Act 2013 (came into force on 1.1.14)
Libel:
Generally, material which is in permanent form and visible to the eye.
There are some exceptions and special rules mainly introduced by statute:
- Broadcasting Act 1990 s. 166 – publication of words in course of tv or radio
programme treated as publication in permanent form; and
- Theatres Act 1968 s4 – performances of a play treated as libel.
Slander:
Generally, refers to the spoken word and transient forms of material. Necessary to
prove special damage: i.e. proof of actual injury required.
Exceptional cases where slander is actionable per se:
- Imputation of unchastity - Slander of Women Act 1891 (abolished by
Defamation Act 2013 s.14)
- Imputation of certain contagious diseases (abolished by Defamation Act 2013
s.14)
- Bloodworth v Gray (1844) 7 Man & G 334
Two remaining cases where slander actionable per se:
- Imputation of unfitness in business – most frequently invoked exception:
Defamation Act 1952 s.2
- Imputation of criminal conduct – Gray v Jones [1939] 1 All ER 795
Elements of a claim:
Claimant must show that the material:
(i) causes serious harm;
(ii) is defamatory;
(iii) refers to him/her; and
(iv) Has been published by defendant
(v) Then the burden of proof shifts to the defendant to establish a defence.
(vi) The Claimant has to prove malice (where appropriate – see later)
^^problem question structure and essay checklist
If you make a defamatory statement but don’t publish it then it is not considered
published – but you can defame someone if you post something on social media.
, Element 1: is the harm serious?
Defamation Act 2013, s.1(1) – aimed at discouraging frivolous claims – ‘a
statement is not defamatory unless it has caused or is likely to cause serious damage
to the reputation of the claimant.’
Seriousness threshold should be considered first - Ames v Spamhaus Project Ltd
[2015] EWHC 127 (QB)
Threshold of seriousness:
- Thornton v Telegraph Media Group [2010] EWHC 1414
- Lachaux v Independent Print [2017] EWCA Civ 1334 – judgment from
UKSC awaited
Cooke v MGN [2014] EWHC (QB) 2831: judge said serious meant serious –
ordinary word in common usage. Seriousness might be obvious in certain situations
– EG: say the claimant is a terrorist or a pedophile .
- From this case - Harm unlikely to be serious where EG:
a. Claimant already has bad reputation;
b. Publication limited or claimant unknown; and
c. Any damage limited because of e.g. clarification or speedy apology
Lachaux – likely to cause means tendency to cause serious harm – serious
allegations of criminal conduct was made against him.
- Court said Serious is more weighty than substantial
- Question of seriousness is fact-sensitive so precedent limited
- Limitation period starts running from date of publication
Alvaro Sobrinho v Impresa [2016] EWHC 66 (QB) – serious harm within the UK
could not be proved – action failed because serious harm couldn’t be proved.
Involved a Portuguese paper. Alvaro was a Portuguese banker. The court said that
he had such a good rep that no one would believe it and he had clarified the rumors
in Portugal.
Sube v NGN [2018] EWHC 1234 (QB) & Sube v NGN (No. 2) [2018] EWHC 1961
(QB) – if comments were not defamatory alone could they be considered
collectively? – complainants were accused of being arrogant, abusive, nightmare
neighbours. These allegations were made in 2 papers and the court said that these
comments were derogatory, but they weren’t enough to ‘serious’. In the second
case: court said you wouldn’t treat a number of articles together.
Companies:
- Companies s. 1(2)….. likely to cause the body serious financial loss
- Could apply to any corporate body
- Difficult for companies to show serious harm.
- Jameel v Wall Street Journal [2007] 1 AC 359: court said that a legal person
(EG: company) can be defamed – they need to show serious financial loss.
- How does a company show serious harm – s.1(2)?
> Most obvious way to show serious financial harm is if there share price has
gone down – but it hard to prove that the share only went down because of
the defamation, since there are various factors that could have contributed –
EG: the economy, competitive pricing.
> Undre v Harrow [2016] EWHC 931 (QB): the judge said that serious
financial loss hadn’t been proved. The business was already struggling so it
was hard to attribute the serious financial harm to the defamatory
comments.
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