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| Question | Answer |
| Give some general information about the law of Defamation | Civil Damages/injunction can be awarded at the discretion of the judge Section 11 DA 2013 removed the right to trial by jury Claim under £10,000 - County Court Claim over £10,000 - QBD in High Court 2 types: libel (permanent); slander (non-permanent) |
| What is the definition of a defamatory statement? | From Sim v Stretch 1936 - "tends to lower a person in the estimation of right-thinking members of society...exposes the claimant to hatred, ridicule or contempt" |
| How has Section 1 Defamation Act 2013 affected the definition of a defamatory statement? | It must now create 'serious harm' or a risk of it to the reputation of the claimant (Or serious financial loss if the statement is about a corporation) |
| What are the 4 elements of Defamation? | 1 - Does the statement refer to the Claimant? 2 - Is the statement defamatory? 3 - Has the statement been published? 4 - Do any defences apply? |
| Element 1 What is the first thing the claimant has to prove? | That the statement complained of refers to them |
| Element 1 What was decided in Morgan v Odhams Press 1971? | Publication about a dog-doping gang which had supposedly kidnapped a girl (they had not, she was staying with a journalist who had infiltrated the gang) Article did not mention the journalists' name, but readers 'skim-read' articles, and could take it to refer to the journalist |
| Element 1 Newspapers 'drop hints' about who their articles refer to. Give some case examples. | 1 - Hayward v Thompson 1981 - 'wealthy benefactor of the Liberal Party'; statement not about C but he was a wealthy benefactor, so could be taken to mean him 2 - Lloyd v David Syme & Co 1986 - cricket team captain sued for libel over an article about alleged match-fixing. Even though not mentioned, could be taken that he was involved as he was the team captain |
| Element 1 How can pixellated pictures be used to prove a statement refers to the claimant? | DJ Ian Thompson and Ashley Cole 2006 - article about premiership footballer and a DJ taking part in same-sex orgies Even though names not mentioned, claimants could be identified in the pictures (despite pixellation) |
| Element 1 Can unintended references still be defamatory? | Yes 1 - Hulton v Jones 1910 - fictional character with same name as a barrister suggested to be an adulterer - successfully sued 2 - BBC sued by London police officer who was filmed walking out of a police station for a documentary on police corruption |
| Element 1 In regards to a defamatory statement towards a group of people, what was held in Knupffer v London Express Newspapers 1944? | Words have to be published 'of the claimant' Unfounded generalisations cannot be interpreted as referring to the claimant |
| Element 1 When has a statement towards a group of people been held to be defamatory? | 1 - Riches v News Group 1986 (Banbury CID) 2 - Aitken v Police Review Publishing Co 1995 (10 dog handlers successfully sued about a story which alleged a dog handler had been forced to leave his job due to anti-semitic behaviour of his colleagues) |
| Element 1 Can two corporations bring a defamation claim? | Yes Marcucci v BBC 2008 - BBC claimed the company sold blood derivative products infected with HIV and Hepatitis C |
| Element 1 What kind of organisations cannot sue for libel? | Trade unions Local authorities Political parties Unincorporated organisations, like charitable trusts |
| Element 2 What is the second element that a claimant has to prove? | That the statement is defamatory Definition from Sim v Stretch and Section 1 DA with the requirement of 'serious harm' |
| Element 2 How has Section 1 DA affected defamation claims? | Made the second element harder to prove Only case - Cooke & Anr v MGN & Trinity Mirror 2014 (which was unsuccessful) |
| Element 2 What 3 important things were said in the Cooke case? | 1 - It was not enough to show that the statement was 'bound to cause' a change in people's perceptions 2 - An apology published quickly may be enough to eradicate/minimise the unfavourable impression 3 - (Obiter) Some statements likely to cause serious harm may include if a national newspaper wrongly accused someone of being a terrorist, paedophile, etc. |
| Element 2 How has defamation been easier to prove in the past (i.e. pre-DA 2013)? | Berkoff v Burchill 1996 successfully sued for an article which compared the actor to Frankenstein's monster Donovan v The Face 1992 - successfully sued for an article which said he was gay Knightley v Associated Newspapers 2007 - implied she was anorexic/had an eating disorder |
| Element 2 Which case shows the importance of assessing what a right-thinking man would think? (Hint: illegal gambling machines in a golf club) | Bryne v Deane 1937 Right-thinking members of society would not view reporting a crime as a bad thing Therefore, no defamation |
| Element 2 If an article is a spoof/joke, how does it affect a defamation claim? | May cause it to fail Elton John v Guardian 2008 (fictional diary and charity balls - no right-thinking man would believe what was written) Charleston v NGN 1995 - saved by further explanation; the article must be read as a whole |
| Element 2 Give an example of how a right-thinking man's attitudes towards a defamatory statement can change over time? | Mitchell v Faber & Faber 1998 D argued that racist attitudes were widely held in the past However, necessary to consider the impression the words give nowadays, and therefore could be defamatory if it implies someone is racist |
| Element 2 What if the claimant already has a bad reputation? | Some statements may cause further worsening of reputation still However, may not affect it either Kate Moss 2001 - claim failed; story substantially true and already well known that she was a cocaine-addict, so reputation not lowered anymore in the estimation of right-thinking members of society |
| Element 2 How can innuendoes be defamation? | Liberace v Daily Mirror Newspapers 1959 - did not explicitly say he was gay, but language gave this implication (successfully sued - was illegal to be gay at this time in the UK) |
| Element 2 What was decided in Jeynes v News Magazine Ltd 2008? | Reasonable reader would not assume the words carried the implication she alleged they did Hypothetical reader is not naive, nor unduly suspicious...not a man avid for scandal Article must be read as a whole Rule out any meaning which can only emerge as a result of "some strange, forced or utterly unreasonable interpretation" |
| Element 2 How can innocent innuendoes be defamation? | Tolley v JS Fry & Sons 1931 Amateur golfer's picture used without permission to advertise product Sued successfully - implied he had compromised his amateur status as a golfer |
| Element 2 How can the use of pictures alongside words amount to defamation? | Capehorn v Independent News and Media 2006 Agent had supplied picture to use alongside ASBO article, but on condition that it was captioned 'posed by models' Independent failed to comply with condition, and Capehorn successfully sued |
| Element 3 What is the third element that the claimant needs to prove? | That the statement has been published I.e. it has been communicated to someone other than the claimant or the defendant's spouse |
| Element 3 How has this element been affected by the internet and social media? | Loutchansky v Times Newspapers 2001 - fresh publication each time the story was accessed online Jameel v Wall Street Journal 2006 (US article downloaded in the UK by 5 people; claim failed as there had been no 'substantial publication' |
| Element 3 What does Regulation 19 of the Electronic Commerce Regulations 2002 say? | A website provider will not be liable for damages where they did not know that the material posted by users of the site was defamatory, and where the acted quickly to remove it once they did know |
| Element 3 What is meant by 'vicariously liable'? | The company is responsible for the actions of their employees Usually targeted in defamation claims as the are the ones with the deepest pockets |
| Element 3 What is the latest key case on defamation on social media? | Lord McAlpine Case 2013 Accused of being a member of a paedophile ring (he was not) Successfully sued BBC and ITV Sued celebrity tweeters Threatened to sue 500 other tweeters, but said he would not if they donated to Children in Need |
| Element 4 What are the 3 old defences? | Justification Fair comment Public interest |
| Element 4 What defence is provided by the Defamation Act 1996? | Innocent dissemination |
| Element 4 How has the Defamation Act 2013 affected the old defences? What sections cover the defences? | Changed their names Justification now called 'truth' (Section 2) Fair comment now called 'honest opinion' (S3) Public interest still a defence (S4) Operators of websites have a defence (S5) Defence of absolute privilege (S7) |
| Element 4 Explain the defence of 'truth' under Section 2? | If the Defendant can prove that the statement complained of is substantially true Minor errors do not matter, e.g. Kate Moss 2001 Therefore, false reputations not protected |
| Element 4 Explain the defence of 'honest opinion' under Section 3. | D to show that the statement was an opinion and that an honest person could have held the opinion on the basis of any fact, or anything asserted to be a fact at the time of publication Defence is defeated if the C can show that the D did not hold the opinion E.g. Pinder-Whites v Aitken 1995; Keays v Guardian 2003 |
| Element 4 Explain the defence of public interest under Section 4. | The statement was on a matter of public interest, and publishing it was in the public interest London Artists v Littler 1969 - behaviour of public officials, all forms of art, entertainment and literature and court cases Reynolds Criteria from Reynolds v Times 2001 - used to be used to determine if the statement was in the public interest |
| Element 4 Explain the defence for operators of websites under Section 5. | If the operator can show it was not him who published the statement Defeated if the C was unable to identify the poster, and the operator failed to act appropriately to a complaint about the statement |
| Element 4 Explain the defence of absolute privilege under Section 7. | Complete freedom of speech allowed during parliamentary proceedings/debates, and during court proceedings |
| Remedies What is an 'offer of amends'? | Governed by DA 1996 Written apology and correction of the statement Payment of agreed compensation If C accepts - case settled If C does not accept - case goes on; if C wins the case, court is likely to reduce the damages payable in recognition of the D's attempt to make amends |
| Remedies What is a Part 36 payment? | The party can make an offer of settlement (not an offer of amends) |
| Remedies What is a Part 37 payment? | If a Part 36 is refused, D can make a payment into court Judge not told about it If C wins case, amount paid into court deducted from C's damages Roach v Sun Newspapers 1992 |
| Remedies How can injunctions be used in defamation claims? | Interlocutory injunction to stop further publication during the trial Prohibitory injunction to stop an article, etc. being published |
| Remedies The Claimant can be awarded general damages How is this broken down into sub-categories? | Contemptuous damages - smallest coin in the realm Nominal damages - has been a wrongdoing, but minimal damage (Grobbelaar) Compensatory damages (biggest award) Aggravated damages Exemplary damages |
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