Defamation Summarised Notes for the Tort Law module, LLB, at City, University of London - can of course be used for other universities as well! Should be used with the full bundle of notes!
DEFAMATION
Damaged reputation
D does not need a particular statement of mind= STRICT liability
2 forms of defamation slander + libel
LIBEL
Statement must be in permanent form e.g. written statements, also TV broadcasts + theatre
Is actionable per se conduct that is wrong, irrespective or any harm caused no need harm
SLANDER
Statement non-permanent form e.g. spoken words, a gesture may suffice
Requires ‘special damage’ claimant must show some loss/harm quantifiable in financial terms
e.g. loss of job or damage to business
4 exceptions for requirement of ‘special damage’ – now 2 exceptions (after DA 2013)
Committed serious criminal offence
Unfit or incompetence in the business, trade or profession
Unchaste or committed adultery (female claimants only) abolished by 2013
Contagious or infectious disease that prevents others associated with him abolished by 2013
Defamation Act 2013 – key provisions
Introduced ‘serious harm’ criterion to prevent trivial claims (s.1(1))
New requirement for bodies trading for profit, statement cause ‘serious financial loss’ (s.1(2))
Replaced common law defence of ‘justification’ with simpler but similar defence ‘truth (s.2)
Replaced common law defence of ‘fair comment’ with ‘honest opinion’ where no ‘malice’ (s.3)
Replaced ‘reynold privilege’ with new ‘publication on matter of public interest’ (s.4)
Clarifies potential liability of website operators for defamatory statements posted by others (s.5)
New category of privileged statements in scientific and academic journals (s.6)
Reform of ‘single publication rule’ to protect further publications of same statement (s.8)
Restrict actions against persons not domiciled in UK or an EU member state, to tackle ‘libel
tourism’ (bring action to UK courts to benefit from claimant-friendly law) (s.9)
Additional protection to ‘secondary’ publishers (who not originate a statement) (s.10)
Limit jury trials in defamation actions trial without jury unless court states otherwise (s.11)
Availability of new powers for courts for defamation actions, to order summary of judgement to
be printed (s.12) or statement removed or distribution to cease (s.13)
Limited defamation cases tried with a jury – speeds up trials
’Serious harm’ + change of defences
HUMAN RIGHTS – conflict balance HR
Art.10 (freedom of expression) + Art.8 (family life)
Need freedom of expression for public interest in democratic society people contribute to
debates good for political discourse allows people to participate in governmental decisions
‘Chilling effect’: action in defamation may have unhealthy deterrent effects as can be false but
also worthwhile important material justifies freedom of expression danger public will be
uninformed of important issues + quality of debate affected stops people say as afraid sued
Reynolds v Times Newspapers Lord Nicholls states reputation integral part of dignity, basis of
decisions in democratic society, once allegation in national newspaper, reputation can be damaged
forever especially if no opportunity to vindicate one’s reputation voting electorate needs to be
able to identify good + bad so exercise subject to restrictions as prescribed by law + necessary to
protect reputation of others need see reasonably necessary for protection of reputation
1
, Theatres Act 1968, s.4(1): publication of defamatory words in theatrical performance= libel
Broadcasting Act 1990, s.166: publication of defamatory words, pictures, gestures and other
‘statements’ broadcast on radio or television= libel
Elements of Defamation
Unless action is one which special damage must be shown (slander) need to show
o STATEMENT MUST BE DEFAMATORY
o STATEMENT REFERS TO CLAIMANT
o STATEMENT MUST BE PUBLISHED
os.1 DA 2013 adds 2: SERIOUS HARM or for body trading for profits SERIOUS FINANCIAL LOSS
DEFAMATORY – meaning from case law + s.1 DA 2013
Sim v Stretch (leading) ‘exposing plaintiff to hatred, ridicule + contempt is too narrow’ so test ‘would
words lower plaintiff in estimation of right-thinking members of society generally?’
Byrne v Dean [1937]: claimant member golf club, someone informed police gambling machines on
premises, poem on wall implied informant claimant held not defamatory merely reporting police
John v MGN [1997]: allegation plaintiff was suffering from an eating disorder defamatory
Berkoff v Burchill [1996]: 2 celebrities, described as hideously uglycourt stated that sort of
allegation is capable of being defamatory as it can make people ridicule the claimant
Defamation Act 2013, s 1: more difficult to sue in defamation as requires ‘serious harm’, not
defamatory unless cause serious harm to claimant’s reputation, and for companies that trade for
profit have to prove serious harm is likely to cause or has caused financial loss –more difficult to sue
Lachaux v Independent Print Ltd [2017]: (leading case of s.1) newspaper sued as article alleged he
committed domestic abuse against his wife, and kidnapped their childallegations serious in
nature= cause serious harm e.g. making allegation to serious crime as newspaper a lot of people see
‘True’ and ‘False’ INNUENDO
How a reasonable person would read the statement
‘Natural and ordinary meaning’ both parties will argue was meaning of words used but involved
reading between the lines innuendo
FALSE INNUENDO
Hidden meaning a reasonable reader would see without special knowledge of claimant
Sim v Stretch: D Sim sent telegram to claimant for a housemaid named Edith, received at a village
shop, so was ‘published’ to a third party, telegram stated ‘Edith has resumed her service with us
today, please send her possessions and money and wages’ held not defamatory, right-thinking
people would think nothing wrong with borrowing from a servant implication from words false
Lewis v Daily Telegraph [1964]: words ‘incapable’ of the meaning alleged by claimant then fail, Daily
Mail published article headed ‘Fraud Squad Probe Firm’, claimants argued article carried the
meaning that they were guilty of fraud held reasonable person would infer as suspected not guilty
TRUE INNUENDO
Defamatory meaning only understood with certain additional facts not in statement
2
, Claimant must know additional facts are relevant to defamatory meaning
Tolley v Fry [1931]: claimant famous amateur golfer, as amateur not allowed to be paid, statement
showed he was paid, which people that knew him implied he was paidheld defamatory
SERIOUS HARM – Defamation Act 2013, s.1
s.1= Statement is not defamatory unless caused serious harm to reputation, for reputation of a body
that trades for profit not serious harm unless caused serious financial loss
To stop trivial claims in defamation need serious harm to reputation of claimant
Actionable per se as without proof of tangible loss
Show on balance of probabilities serious harm to reputation in face caused (or likely to be caused)
Does not require special damage to be proved, rather statement likely to cause damage
Wilson LLP v Persons Unknown [2015]: unknown Ds from ‘solicitorsfromhelluk.com’, claimant
alleged it was inevitable that prospective clients who read website would not instruct the firm and
stated a drop in enquiries, no figures could be provided held sufficed serious harm
PUBLICATION – to at least 1 third party
Must be published to any party other than subject of defamation= published even if 1 person
Foreseeability is test for remoteness in defamation
Publication to one person may lead to a much broader circulation
Burden is on claimant to show statement has been accessed and read
Huth v Huth [1915]: Held no publication where butler opened letter addressed to subject of libel as
he was not authorised to do so remoteness rule
Communication to Ds spouse is held not to be published as in law married couples are same persons
Theaker v Richardson [1962]: defamatory statement in letter, husband opened it by mistake, intent
for wife to read it, held normally publication, it was reasonably foreseeable spouses may open
letters not published as married couples are same persons in law
Defamatory material on the internet –large amount of people see it on internet, how courts deal
with internet as there are so many defamatory statements, rule is if ‘PRIMARY’ publisher or
‘SECONDARY’ publisher (not person that wrote it but responsible in some way for other people to
see it e.g. a website and do not take it down)
Bunt v Tilley [2007]: Internet service providers provided access to internet, some people used it to
make defamatory statements court stated someone that just provides internet access could not be
liable just for allowing access, need more role in facilitating posting things on internet to be liable
Tamiz v Google [2013]: post on website, owners may be liable if it is held they knew it was
defamatory and did not take it down, once notified that there was a defamatory statement on their
blog, and took too long to remove it, then liable if up there for a reasonable period of time – if
running a website and get complaint need to take it down within a reasonable period of time
Reform of republication rule before was multiple publication now single
3
, Multiple publication rule: treated as statement is published every time someone reads or sees it,
so there can be a fresh claim each time
But s.8 Defamation Act 2013 changes effect of republication rule
Loutchansky v Times Newspaper [2002]: argued it was not fair to make liable for newspaper every
time someone reads it, then cannot really maintain archives to keep reviewing to see if there is
defamatory statements, but held it is fair as reputation can be affected every time someone sees it,
struck reasonable balance of freedom of expression and right of reputation
DA 2013, s.8: Single publication rule
Applies if a person publishes a statement to public (first publication) then publishes same statement
or similar, then time limit of 1year to bring defamation claim starts when published first, once a year
has passed cannot sue if someone else reads the story – single publication rule
Repetition rule
Any party involved in dissemination (spreading) of statement is vulnerable to defamation action
No need to show D is originator of statement (do not need to be first to make it), to repeat a
rumour is capable of amounting to slander or libel – but less where allegation is public interest
Protection to secondary parties
‘Secondary’= printers, newsagents etc were at common law open to defamation actions
But s.1 Defamation Act 1996,new statutory defence for those with secondary role in publication
provided they take appropriate care + D needs to be ‘publisher’ of statement in first place
s.10 Defamation Act 2013 extra protection for secondary publishers
REFERENCE TO CLAIMANT – statement must refer to claimant
Statement not need to mention claimant by name, can be implied, depending on knowledge of
special facts, provided some people are aware of facts, can be small group of people
Reference to claimant can be entirely accidental – but now s.1 Defamation Act 1996 gives some
defences for D who did not know publication was defamatory to claimant
Statement made about a group of people can be defamatory to any member of that group
Hulton v Jones [1910]: newspaper published fictitious story same name as to claimant barrister
Jones name, he claimed people that read it would have thought it was himheld does not matter
what D would have intended if reasonable person would have noticed refers to claimant
Article 10 ECHR
O’Shea v MGN Ltd [2001]: unintentional look-alike, advert for a pornographic newspaper with an
illustration of a model, looked like claimant some people thought it was her, she argued it was
defamatory that she was involved in this website, held after HR act it was going too far in terms of
freedom of expression where there is a look-alike cannot be defamatory (but can be liable if
intentionally use lookalike)
Group defamation
E.g. say politicians corrupt, issue can all politicians sue – no cannot as reasonable person would not
take it literally all are corrupt
DEFENCES
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