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  3. University College London (UCL)
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Lecture notes

Defamation
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This set of notes covers the topic of defamation in tort law. It contains lecture notes, case summaries, extracts from various textbooks, helpful pointers for answering exam questions, and useful material for essay questions specifically (academic articles/ opinions). Please note that this document...

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  • July 26, 2021
  • 23
  • 2020/2021
  • Lecture notes
  • Paul mitchell
  • All classes

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DEFAMATION

MR:

L&O ch. 13

* Lachaux v Independent Print Ltd [2019] UKSC 27

facts: the newspaper had published articles making allegations about Mr Lachaux’s conduct towards his wife during
the marriage and in the course of the divorce and custody proceedings.

issue: whether the statements in the articles were defamatory in light of the “serious harm” test under section 1(1)
of the 2013 Act.

held: yes — liability for defamation (Lord Sumption for the majority)

the Defamation Act 2013 seeks to modify some of the common law rules which were seen unduly to favour
the protection of reputation at the expense of freedom of expression.

a working definition of what makes a statement defamatory, derived from the speech of Lord Atkin in Sim v
Stretch [1936] 2 All ER 1237, 1240, is that “the words tend to lower the plaintiff in the estimation of right-
thinking members of society generally.”

further qualified:

i. the meaning is not that which other people may actually have attached to it, but that which
is derived from an objective assessment of the defamatory meaning that the notional
ordinary reasonable reader would attach to it.

ii. in an action for defamation actionable per se, damage to the claimant’s reputation is
presumed rather than proved.

iii. said presumption is one of law, and irrefutable.

in Jameel and Thornton, the courts added a further requirement, namely that the damage to
reputation in a case actionable per se must pass a minimum threshold of seriousness. (pre-
Defamation Act 2013)

the issue in the instant case was whether s.1 of the Act supplements the common law
position (the inherent tendency of the words must be to cause not just some damage to
reputation but serious harm to it) or adds another condition to be satisfied before the
statement can be regarded as defamatory, on top of the requirement that the words
must be inherently injurious.

per Lord Sumption — s.1 not only raises the threshold of seriousness above
that envisaged in Jameel (Yousef) and Thornton, but requires its application to
be determined by reference to the actual facts about its impact and not just to
the meaning of the words.

the least that section 1 achieved was to introduce a new threshold of
serious harm which did not previously exist.

section 1 necessarily means that a statement which would previously
have been regarded as defamatory, because of its inherent tendency to
cause some harm to reputation, is not to be so regarded unless it “has
caused or is likely to cause” harm which is “serious”.

, => depends on a combination of the inherent tendency of the words
and their actual impact on those to whom they were communicated.
(same goes for harm likely to be caused, re: probable future harm)

if serious harm can be demonstrated only by reference to the inherent
tendency of the words, it is difficult to see that any substantial change
to the law of defamation has been achieved by what was evidently
intended as a significant amendment.

A Mullis and A Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) 77 MLR 87.

considers the success of The Defamation Act 2013;

defences

three main defences to replace previous defences at common law;

s.4 — publication on a matter of public interest, re: a publisher must show that he or she ‘reasonably
believed that publishing the statement complained of was in the public interest’ + it must also be
demonstrated that ‘the statement complained of was, or formed part of, a statement on a matter of public
interest’

^ shift from the responsibility of journalism in Reynolds to the reasonableness of belief;

two tenable interpretations — (i) the ‘reasonable belief’ test requires only a belief that is based on rational
grounds (the defence would fail only in the unusual circumstance where the belief was proven false,
capricious or irrational), or (ii) how the belief was reasonable (e.g. a well-resourced journalist could not
reach a reasonable belief that publication was in the public interest without first having done what an ethical
journalist should do to stand up a story)

(ii) is the one Parliament intended;

s.3 — honest opinion, re: no reference to the need for the comment to be on a matter of public interest +
enough that an honest person could have held the opinion on the basis of ‘any fact that existed at the time
the statement complained of was published’.

BUT a problematic and unnecessary lack of clarity has also been introduced into the operation of defences
by section 4(5) — ‘for the avoidance of doubt’, the section 4 defence can be used irrespective of whether the
impugned statement is a statement of fact or an expression of opinion

^ by making the public interest defence applicable to opinion as well as fact, the effect of section 4(5) would
seem to be that a defamatory opinion that no honest minded person could have held based on the stated
(inaccurate) facts may nevertheless be protected provided that the other elements of section 4 are satisfied.

remedies

ss. 12 and 13 of the Act address the question of remedies, and provide the court with general powers,
respectively, to order publication of a summary of the judgment and to compel the ‘take-down’ of
publications found by the court to be defamatory.

academic & scientific discourse

s. 6 — qualified privilege to peer reviewed statements published in scientific or academic journals where
two conditions are met, unless it is shown to have been made with malice:

i. the statement must relate to ‘a scientific or academic matter’.
ii. before publication the statement must have been subject to ‘an independent review of the statement’s
scientific or academic merit’, carried out by the editor of the journal, and one or more persons with
expertise in the scientific or academic matter concerned

s. 7(9) — qualified privilege to fair and accurate reports of proceedings of a scientific or academic
conference, and to copies, extracts and summaries published by such conferences.

, three criticisms:

i. principle — it must be questioned whether special protection even for this limited category of
academic speech was justified, re: not obvious why it should be considered worthy of greater
protection than is accorded to other forms of public interest speech (no strong public policy argument
has been put forward)

ii. design — argument for a rebuttable presumption to the effect that an article that has gone through peer
review is responsibly published for the purposes of section 4; peer review might be seen as a proxy for
a quality and accuracy check. This does not explain, however, why proof of malice only should defeat
the privilege.

iii. scope — narrow; not a general protection for academic speech, re: when academics speak in the
media or communicate their research through other less formal means than a peer-reviewed journal,
they will have to rely on the general defences available + unclear (does not define ‘scientific or
academic matter’ or ‘expertise’);

online publication

ss. 5 and 10 significantly extend the existing protection available to website operators in respect of posts by
identifiable posters. Where posters are not identifiable, the effect of the Act is to encourage website
operators voluntarily to disclose their identity and contact details

BUT ‘website operator’ is not defined

s. 8 — single publication rule; argues it will not work in practice because it will not provide the ‘safe
harbour’ that it is intended to create, and may become pathological from the publisher’s perspective.
the ‘right to reputation’ has been recognised as part of the Article 8 right to respect for private life

+ when the section 8 limitation is lifted by a judge under section 32A, the defendant will be liable for
all harms caused beginning from the date of first publication.

process

i. the introduction of a threshold of seriousness test in section 1, and ii. the ending of the presumption of trial
by jury in section 11;

i. trivial claims should be discouraged, but it must be doubted whether section 1 will make
much difference in terms of the content of the law. (already implemented by Jameel and
Thornton)

+ clear effect of section 1 will be to place a more onerous burden on the claimant at
the preliminary stage (may increase the likelihood that unmeritorious cases will not be
brought or likely to cause a measure of front-loading of effort)

ii. this will allow counsel to dispense with the need to prepare alternative arguments to
accommodate the fact that a jury may select one meaning over another only at the end-point
of the trial + reduce costs

FR:

Patfield, ‘Defamation, Freedom of Speech and Corporations’ [1993] Juridical Review 294

reviews the impact of Derbyshire one existing law — municipal corporations (govt. bodies) and other
similar bodies cannot sue for defamation, may only protect their reputation in a civil action of tort of
malicious falsehood;

basis of the decision = public interest (freedom to criticise those who govern in a democratic society)

re: not in the public interest to allow them to sue for defamation, actually contrary to public interest
to allow such a course of action (per Lord Keith)

follows in the footsteps of the US approach — based on constitutional considerations (freedom of speech
protected by the constitution)

New York Times Co. v Sullivan — a public official only able to maintain an action for defamation in
relation to their official capacity if they prove actual malice on the part of D;

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