Essay
Defamation Tort Essay
- Module
- Tort Law
- Institution
- University Of Leicester (LE)
Essay of 5 pages for the course Tort Law at LE (graded A)
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“Enter rumour, painted full of tongues,” as per William Shakespeare. Surely, modern societynow values the right to freedom of speech much though it seems that it has been abused by
individuals who take it as a guilt-free pass to slander their rivals or even a stranger on the
internet. As such, the tort of defamation aims to protect people from damage towards their
reputation. Regardless, Mullis A in “Modern Defamation Law: Balancing Reputation and Free
Expression” suggested that the law should be careful in setting up the ambit of defamation
claims as it walks a fine line between protecting “individual rights and social interests in both
freedom of expression and reputation.” This paper shall discuss the impact of the recently
reformed Defamation Act 2013 (DA 2013), along with the procedural implications.
In Sim v Stretch, Lord Atkin described defamation as a statement made that must have injured
the reputation of the claimant by “exposing him to hatred, contempt and ridicule and, have the
effect of lowering them in the esteem of right-thinking members of the society.” There are two
types of defamation - libel and slander. If a defamatory statement was made orally, it is
generally slander whilst if it was made in writing, it will usually be a libel, per Youssopoff v
Metro-Goldwyn-Mayer Pictures Ltd.
The main focus here would be libel which used to have a much lower bar for proving damage,
leading to innumerable criticism - the risk of trivial claims; libel laws being used to stamp on
sensible discussion; the lack of clear statutory defences; and many more. This seems to threaten
the citizens’ right to freedom of speech as enshrined in Art. 10 European Convention on Human
Rights (ECHR).
Nonetheless, the House of Lords in Derbyshire CC v Times Newspapers (1993) prohibits
governmental bodies and political parties from bringing defamation claims in order to uphold
the freedom of expression in accordance with Art. 10 during its democratic process. This seems
to be the right decision as governmental authorities should be open to constructive criticisms
from the public to strive for the better.
, Coming back to the reforms on libel laws, in 2009, ‘The Libel Reform Campaign’ was formed to
push for “a simpler, cheaper and more modern law on defamation” as compared to the
piecemeal approach advocated pre-reform, which eventually led to the enactment of the DA
2013. This statute was described by the Ministry of Justice as having reversed the “chilling effect
on freedom of expression” by the past libel laws.
Significant changes by the Defamation Act 2013
I. S. 1 - Serious Harm Test
It is now relatively harder for a defamation claim to be successful as s. 1 of the DA introduced a
‘serious harm’ test which sets a higher bar for claims to be successful. The test will be satisfied if
it can be proven that the defamatory statement has caused, or is likely to cause, serious harm to
the claimant’s reputation. It is submitted that this provision builds on the jurisprudence of
Jameel v Dow Jones & Co Inc (2005) and Thornton v Telegraph Media Group (2010) and is
intended to deter trivial claims.
II. S. 1(2) - Corporate Entities
Also, corporate entities which are deemed to have a business reputation can bring a claim for
defamation as well, per Lewis v Daily Telegraph. Though the reformed law is said to have
significantly limited the scope for such claims. S. 1(2) lays down that for purposes of the
reputation of a corporate entity, the “serious harm” test can only be satisfied if the defamatory
statement has caused or is likely to cause “serious financial loss”. Timothy Pinto of Taylor
Wessing opined that this will result in more claims being brought by or against individuals
associated with the company instead of the company itself, in order to overcome the high bars.
This seems to be a fair move as companies should prioritise operating the business instead of
being petty trying to file trivial claims against their rivals or the public.
III. S. 3 - Defence of Honest Opinion
The previous defence of “fair comment” had been replaced by the defence of “honest opinion”
as per s. 3. This newly coined defence seems to favour the defendants more as compared to the
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