Exam (elaborations)
Media Law Revision Notes - Distinction
- Module
- Media Law
- Institution
- Queen Mary, University Of London (QMUL)
I achieved a distinction with these revision notes for Media Law at a Russell Group University.
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LIBEL Defamation: Protects reputationLibel: Defamation in permanent form • S1(2): Businesses must prove “serious financial loss”
o B/c legal person doesn’t have feelings to be damages
S9: Libel tourism
• UK law favours claimants ∴ sues in UK, despite not living here
o HERZFELD: Should only sue for attacks on business reputation > other rep., e.g. donate ££ to charity Berezovsky
• Art 8 (right to private life) + protecting reputation vs. Art 10 (freedom of expression) Spamhaus - Publications in US/Russia/UK
• HOOPER: DA 2013 favours D, e.g. serious harm / single PR / ↓ libel tourism assists defending libel actions - Bulk email marketing service in California - Court: Must have legitimate reputation to protect in UK to sue
- S’s website claimed claimant = “top 10 worst world spammers”
• S11 Defamation Act 2013: Removed presumption in favour of jury trial • Internet issue: If upload in 1 jurisdiction = available to all jurisdictions
- WARBY J: Globalisation w/ easy communication ∴ creating bad reputation in UK = significant
• 2 types: Dow Jones
- Deterred people from associating w/ business ∴ serious harm
o Libel: Permanent form ≠ required to suffer loss b/c publication - Uploaded in US, downloaded in Australia
o Slander: Spoken = requires “special damage” (economic loss) Jameel - Court: Defamation occurred in Australia where its downloaded in intelligible form > uploaded
§ No need to prove if accused of crime/unfit for job - Lord BINGHAM: If not prompt + issuing proceedings is public = ↓ chance of financial loss Don King
1) DEFAMATORY STATEMENT 2) MUST REFER TO CLAIMANT incl. nicknames - Narrowed Dow Jones: Requires sufficient connection w/ jurisdiction ∴ hard for foreigners to sue in UK
Natural + ordinary meaning • Strict liability: Intention ≠ relevant Jameel
• 1. Natural + ordinary meaning Hulton - 5 downloads, incl. J + lawyers ∴ only suing for 2
Sims - Story on fictional X = went to France w/ women who wasn’t his wife - Court: Disproportionate abuse of process, b/c costs outweigh benefits of bringing action = struck out
- Test: “If statement ↓ claimant’s reputation in the eyes of right-thinking people” ∴ insult ≠ defamatory - Court: Reasonable people would think defamatory words referred to barrister w/ same name
• S9: If ≠ domiciled in UK/EU MS, court considers if UK = MOST APPROPRIATE place to bring action for that
Berkoff • Identifies specific group statement
- Journalist referred to actor as ‘hideously ugly’ = defamatory, b/c B’s profession Knupffer o E.g. Extent of damage to claimant’s reputation in UK vs. elsewhere
- Physical appearance = important for actors ∴ ↓ claimant’s reputation - Article claimed Russian political party = pro-Hitler, but claimant = leader of British branch o Prevents courts readily accepting jurisdiction, just b/c claimant frames claim to focus on damage in UK
- Lord MILLETT dissented: If readers understood it as a joke ≠ defamatory - Court: Group too big to identify him, b/c article ≠ name him / British branch
Overlap w/ defamation + privacy
• 2. Statement in its context • Unintentional identification • SMARTT: Celebrities prefer privacy injunctions, b/c prevents damaging articles being published > libel
Charleston Newstead claims after publication
- Actors complained article photos edited their faces onto porn models w/ headline “Porn Shocker” - Published that N convicted of bigamy, but another man w/ same name in Camberwell o But Giggs/John Terry super-injunctions show hard to keep their anonymity out of the media spotlight
- But stated photos were edited - Reasonable person would think statement referred to N • WACKS: Blurred line w/ privacy + defamation, b/c truth defence protects media’s freedom of expression
- Court: Article must be read as a whole > words in isolation
O’Shea DEFENCES
o Bane + antidote - Sued sex phone line advert that featured a lookalike to K, b/c damages reputation as actress • S10: If can’t sue author/editor/publisher, may sue secondary publishers
§ ∴ Media can’t just focus on wording, but layout + placement of photos etc. - Court: Strict liability rule ≠ cover lookalike situations, otherwise unjustifiable Art 10 breach S2: TRUTH
Norman
• Replaced “justification” common law defence
- Magazine joke that N trapped in doors + replied “honey, I ain’t got no sideways” • Identifies by association
Liberace à Importance of truth
- Argued magazine suggested she spoke in undignified way that was a racist + degrading stereotype Cassidy
- Accused of being a ‘fruit-flavoured’ gay, which he denied = £8k damages
- Court: Article read as a whole complimented N ≠ defamatory - Mrs. C identified in association w/ Mr. C, b/c she represented herself as his wife
• Statement must be substantially true to the hypothetical, ordinary reader
Cruise 3) PUBLICATION *If nobody sees ≠ damage reputation Chase
- Articles on 1) Idolising Nicole Kidman + Tom Cruise’s marriage; 2) Gossip column suggested they • Reasonably foreseeable publication - Prove “sting” of libel = substantially true, not every word is true
were going to divorce o Intentional publication
- Newspaper argued 1st article balanced out the 2 nd Pullman Rothschild
- Court: 2 separate + distinct articles - Open postcard w/ defamatory statement ∴ likely to be read by someone else = publication - DM claimed R flew EU Trade Commissioner to dinner in Moscow ∴ corrupt
- Truth defence applied, b/c sting = substantially true
• 3. If not taken seriously ≠ actionable, esp. advertising/fictional stories/non-news reports o Unintentional publication - Relationship w/ Russian companies = conflict of interest
Vodafone v Orange Slipper v BBC
- Ordinary reader accustomed to advertisers using hyperbole that ≠ intended to be taken seriously - BBC suggested incompetent detective = repeated in TV review columns • Defeated by malice: S8 Rehabilitation of Offenders Act 1974 - If motive of publishing details of spent
- Court: BBC liable for subsequent publications, b/c reasonably foreseeable it’d be repeated conviction = malice, truth defence ≠ apply
Innuendo
Websites S3: HONEST OPINION = for fair + honest critics
• Innuendo: Words appear innocent, but defamatory to those w/ certain info to understand the double meaning
• Replaced “fair comment” common law defence + removed requirement for opinion to be in public interest
Cassidy • Separate articles in 1 website
Buddhist Society à Australia • HOOPER: Significant defence, b/c covers any honest statement of opinion, even if bigoted
- Photo captioned: “Mr C + another woman announce engagement” ∴ implies Mrs. C = mistress
- Court: Defamatory, b/c anyone who knew Mrs. C knew she represented herself as his wife - Q) Does other publication have “SUBSTANTIVE IDENTITY” or link? If latter ≠ separate publication • 1) Statement of opinion > fact
- E.g. Homepage’s HTML linked headlines + full story = sufficiently linked to form 1 publication ∴ o Based on how an ordinary person would understand it + infers fact as a form of opinion
McAlpine à Twitter whoever views homepage = saw the defamation > buried in archives Cook
- After BBC show on politician abusing boys, B tweeted M’s name w/ *innocent face* = defamatory - “Low value for money” MP = statement of comment > fact
- Court: Those likely to read it would have fair grasp of politics ∴ likely to be read in its context Cruise
- Articles on 2 diff pages = 2 separate + distinct articles • 2) Indicates basis of opinion
Juxtaposition Joseph
• Despite innocent statement, pictures go against the wording Multiple publication rule - UKSC: Comment must explicitly/implicitly indicate facts it’s based on
Petters • Before, every new publication of defamation = separate action w/ new limitation period
- BBC reported quiz irregularities w/ footage of P participating in a quiz show = defamatory Duke of Brunswick • 3) Honest person could have held such an opinion, based on [any] facts that existed when statement published
- Court: Juxtaposition of pictures, b/c viewers would think he was involved in the scam - Despite limitation period ended, obtaining fresh copy = separate action w/ new limitation period o Objective test
Burstein
Changing social attitudes • Archives - Newspaper claimed MP defended old expense scandal system
• Whether a statement is viewed defamatory = changes over time o Each web view = new publication - Despite wrong fact, MP exploited old system ∴ wrong for MP to defend old system = honest comment
Liberace Loutchansky
- The Times accused L of being boss of major criminal organisations = in online archives • Defeated by malice: If claimant proves D ≠ hold the opinion
- Accused of being a ‘fruit-flavoured’ gay when homosexuality = illegal in UK
- Court upheld Brunswick rule for archived online material o E.g. Reproduces comments of 3rd party interviewee
Donovan - But defence argued Art 10 breach, esp. if kept archives S4: PUBLIC INTEREST *Defences rely ↑ on responsible journalism > proving the statement
- Sued magazine that said he lied about being gay = viewed as homophobic § SUTTER: Limitation period = pointless, b/c open-ended liability, despite when it was first published • 1) Statement must be a matter of public interest
§ ∴ Multiple PR discourages publishers from making info readily available on archives • 2) D reasonably believed it was in public interest
SERIOUS HARM
• S1: REQUIREMENT OF SERIOUS HARM S8: Single publication rule Flood
o Claimant must prove publication “caused / likely to cause serious harm to reputation” > actual harm - Article implied policeman took bribes + newspaper argued it’s in public interest
• S8: Single publication rule
Cooke - UKSC: Yes, police corruption = serious public concern
o After 1 year of original publication, claimant can’t bring action against same material by same publisher
- Benefits street “overcharged rent” ≠ defamatory o Unless MATERIALLY DIFFERENT manner of publication § Victory for investigative journalism ∴ ↑ freedom of expression
- Court: Swift apology to neutralise effect ≠ likely to cause serious harm to reputations in future § Depends on importance given to statement + extent of subsequent publication • Replaced “Reynolds” common law defence
- BEAN J: If accused of paedophile/terrorist = legally + culturally causes serious harm o May refer to old cases ∴ puts Reynolds on statutory footing > new defence
• + ↑ Freedom of expression, except for those who re-publish substantially the same material
Lachaux (2015) Reynolds à Persuasive
• + ↑ Right to reputation, b/c court’s discretion to extend 1 year period
- Reynolds QP defence of responsible journalism on matters of public interest
- WARBY J: Courts may consider what happened after publication • - SCOTT disagrees: Fails to balance freedom of expression + right to reputation
- Lord NICHOLLS: Although media get things wrong, non-exhaustive factors –
o After limitation period ends, not all publishers deserve to be absolved from liability
1) Seriousness of allegation: ↑ serious = ↑ misinformed = ↑ harm to reputation
o Some publications = “horrendously damaging” to X’s reputation, regardless of how long ago it was
2) Type of information: Matter of public concern?
published
3) Source: Paid? Revenge?
• - HOOPER: Is repeating broadcast/transferring paper-based publication onto Internet = materially different? 4) Attempts to verify information?
o ∴ Lack of clarity undermines usefulness of single PR 5) Status of info: If allegation being investigated = should respect that
6) Urgency
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