Tort - Defamation

Tort - Defamation

1. Libel

   • Monson v Tussauds
     • Defamatory statement contained in a permanent form
       • Theatre performances
         • Theatres Act 1968 s4 (1)
       • Television and Radio Broadcasts
         • Defamation Act 1952

2. Slander

   • Defamatory statement NOT in permanent form e.g. spoken statement/gesture
     • C must prove they suffered special damage (usually financial sense)
       • Proof of damage not required if: Imputation of crim offence, punishable by imprisonment OR imputation of unfitness or incompetence in an office, profession or business (Defamation Act 1952, s2)

3. 1 - A defamatory Statement which causes or is likely to cause serious harm

   • Defamatory Statement
     • Sim v Stretch
       • 'it lowers the plaintiff's reputation in the minds of right thinking people, or causes the plaintiff to be shunned or avoided
         • Byrne v Dean
           • implication a member of golf club had informed police about the illegal fruit machine
             • Would not LOWER HIM IN THE EYES OF RIGHT-THINKING PEOPLE
           • Even though they didn't write it, failure to remove after being notified = liable
       • Innuendo
         • Lewis v Daily Telegraph
           • 'Fraud Squad probe firm'
             • False Innuendo - Knowledge of alternative meanings, 'reading between the lines'
               • Not defamatory UNLESS there is an imputation of guilty e.g. charged/arrested etc
         • McAlpine v Bercow
           • Additional fact = defamatory
           • Twitter
             • How popular are you?
     • 'Mere abuse' not actionable but position of C is relevant
       • Berkoff v Burchill
     • Context taken into consideration - C cannot SELECT potentially libellous statements to rely upon if a passage overall is not defamtory
       • Charleston v NGN
   • 'Serious harm' test
     • Defamation Act 2013 s1 (1)
       • Statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant
         • (2) - body that trades for profit is not serious harm unless it has caused/likely to cause financial loss
           • Steele v McDonalds
       • Lachaux v Independent Print Ltd
         • Presumption that a libel = serious harm at the time of publication
           • Slander will need to evidence serious harm before can bring a case

4. 2 - Statement must refer to the claimant

   • Where C alleges that a D's description of real or fictional character might be taken to refer to him
     • Hulton v Jones
       • TEST : Whether reasonable people would believe that the statement referred to the plaintiff
         • D's intention is irrelevant, did not matter if fictious
   • Two people have the same name
     • Newstead v London Express
   • Don't need to know name if know things about them that refer to that particular person
     • Morgans v Oldham - dog doping gang
       • O'Shea v MGN Ltd (CONTRAST CASE)
         • Using wrong picture was not defamatory because looked the same
   • Group Defamation
     • If C can show they are an identifiable member as a member of the class
       • Knupffer v London Express Newspapers
         • 'Treasurer of Young Russian Party'
         • Words must refer to small enough group that they can be taken to refer to each member
           • Apply Hulton test

5. 3 - Publication

   • Must be communicated to 3rd party i.e. other than claimant
     • Publication to one's spouse is not treated as being a third party
     • Reasonable Foresight
       • Huth v Huth
         • Was not foreseeable butler would open letter out of curiosity
       • Theaker v Richardson
         • Was reasonably foreseeable that husband would open and read his wife's post
     • Slander
       • McManus & Others v Beckham
         • Reasonably loud voice = published
   • Internet
     • Gofdrey v Demon Internet
       • ISP refused to remove defamatory posts about C which they did not write
         • As they were NOTIFIED and didn't remove it = Liable for it
       • MODERATED
     • Met Int Schools v Designtech
       • 'Secondary publisher'
         • Showing results, not making the content.
     • Defamation Act 2013 s5 DEFENCE for operator to show they were not the operator who posted statement on the website
       • Defeated if can identify the person, C gave notice of complaint and operator failed to respond to it
   • Dingle v Associated Newspapers
     • Can sue for each repetition of libel
       • Defamation Act, s8 - 12 months to bring claim. If same libel, clock keeps ticking from original time

6. DEFENCES

   • Truth
     • Alexander v Eastern Railway
       • e.g. not cocaine but instead crystal meth
       • Don't have to prove every word is true, only need to prove the sting of the allegations
         • Important words are right and less important = wrong = still a defence of truth
           • As long as less important words do not 'materially inure plaintiffs reputation'
     • Defamation Act 2013 s5
   • Honest Opinion
     • Formerly London Artists v Littler, NOW... Defamation Act 2013 s3
       • Defamatory statement must be one of opinion
         • Statement indicates, whether in general or specific terms, the basis of the opinion
           • An honest person could have held that opinion on the basis of true facts or facts alleged to be true under privilege
   • Qualified Privilege
     • Where there is a right to hear it and say it = defence
       • Defamation Act 2013, s4
     • peer-reviewed
       • British Chiropractic Association v Singh
         • Defamation Act 2014 s6
   • Absolute Privilege
   • Innocent Dissemination 'Paperboy Defence'
     • 'Secondary publisher' such as newsagents and booksellers
       • Viztully v Mudie
     • Distributors defence?
       • Godfrey ISP CASE?
         • Defamation Act 2013 s10
         • Byrne v Dean
           • Distributors defence only arises where D had taken all reasonable care i.e. no notice
   • Consent to a publication
     • Chapman v Lord Ellesmere
       • Consent to rules of racing...
     • Moore v News of the World
       • consented to the interview and way it was written
   • Offer to make amends
     • But...
       • Monroe v Hopkins
         • If pass opportunity to settle, could result in higher costs
     • offer in writing that he will:
       • Publish correction and apology
         • Pay compensation and costs

7. Occupiers Liability

   • Occupiers Liability Act 1957
     • s1(1) Concerns duty which an occupier owes to Lawful Visitors. Source of damage must originate with the premises itself rather than with what someone does on it
       • Who owes a duty? s1(2) 'duty imposed by law in consequence of a person's occupation or control of premises'
         • Key concept is 'control' thus, there can be more than one occupier (Wheat v Lacon)
           • Control = regulate who is and not allowed to enter, who who is to take steps to prevent accidnts
             • Harris v Birkenhead - LA = occupier despite never entered/taken possession of it
         • s1(3)(a) Premises 'any fixed or moveable structure'
           • ladders, electricity pylons, grandstands, diving boards, lifts, airplanes, airport runways
             • Furmedge v Chester-le-Street DC = Inflatable sculpture
           • s2(2) Standard of Care 'reasonable to see that visitor will be reasonably safe in using the premises for purposes...'
             • Visitor has to be reasonably safe, not the premises
               • duty applies to purpose for which visitor was allowed entry
             • Specific Guidance
               • Children
                 • s2(3)(a) 'an occupier must be prepared for children to be less careful than adults'
                   • Duty is thus more explicit
                   • Glasgow Corporation Taylor
                     • Poisonous berries 'ALLUREMENT'
                       • Trespasser to VISTOR
                       • Jolley v Sutton LBC
                         • 'finding unexpected ways of doing mischief to themselves and others should never be underestimated' Lord Hoffman
                         • Abandoned BOAT
                   • Very young children
                     • Responsibility for their safety lies with the parents
                       • Phipps v Rochester Corporation
                         • 5yr old + 7 yr old - Occupier not liable
                       • Obvious risk
                         • Bourne Leisure v Marsdone
                           • eventhough fence not high enough, no breach as DANGER WOULD HAVE BEEN OBVIOUS AND WAS REASONABE TO EXPECT A CHILD TO HAVE BEEN UNDER ADULT SUPERVISION
               • Skilled visitors
                 • s2(3)(b) 'occupier may expect that a person, in exercise of his calling will appreciate and guard against any special risks ordinarily incident to it'
                   • Concerned with injury TO the skilled visitor, rather than that caused by him
                   • Roles v Nathan
                     • Occupier not liable as it was exactly the sort of special risk ARISING FROM THEIR CALLING which C should have guarded against
                       • Occupier would however have been liable if had fallen through a weak floorboard, as this would not have been covered by s2(3)(b)
               • Warnings
                 • Use warnings to assist in discharging duty of care
                   • Tell visitor ENOUGH to enable him to be REASONABLY SAFE
                     • s2(4)(a)
                       • Lord Denning example in Roles v Nathan
                         • 1 bridge with sign saying dangerous = not adequate warning as only bridge. But if 2 bridges with 1 sign at dangerous bridge saying to use the other, the person is injured using bad bridge = have no claim against occupier
                       • 1. Warning = 'Danger Slippery Floor'
                         • An exemption of liability = Not a warning
                           • Limitation on entry = Not a warning
                 • No general duty to warn about OBVIOUS RISKS
                   • Darby v National Trust
               • Independent Contractors
                 • s2(4)(b)
                   • Defence to occupiers when damage is attributable to the work of an independent contractor on their premises
                     • Haseldine v Daw
                       • Technical task, could not have expected occupier to check whether it had been performed properly
                         • Occupier not liable
                     • Woodward v Mayor of Hastings
                       • Task was simply, occupier could have checked if snow had been removed from steps
                 • Gwilliam v West Hers NHS Trust
                   • occupier satisfy himself that contractor is also adequately insured
         • Who is the duty owed to?
           • s1(2) - 'Visitors'
             • Express/Implied permission to enter premises (licensees and invitees under old common law)
               • e.g. those who enter in exercise of their right such as a fireman
                 • Edwards v Railway - 'repeated trespass' did not confer a license
             • Limitrations
               • The Calgarth
                 • Exceeding permission 'When you invite a person into your house to use the stairs, you do not invite him to slide down the bannisters'
     • Compensation Act 2006
       • s1 Take into account potential impact upon desirable activities SOCIAL UTTILITY
         • The Scout Association v Barnes
     • Unfair Contract Terms Act 1977
       • cannot by ant contract term or notice exclude liability for death or personal injury resulting from negligence
         • IF A BUSINESS
         • s2(1)
   • Occupiers Liability Act 1984
     • Duty of common humanity owed to trespassers
       • British Railway v Herrington
     • Scope of Duty s1(1)(a)
       • 'Persons other than visitors' = mainly trespassers, but those using private rights of way
         • If using PUBLIC RIGHT OF WAY = Countryside and Rights of Way Act 2000
       • Source of damage has to come from state of premises if not, the act does not apply
         • Although act does not apply, there may be liability under ordinary common law negligence
           • Revill v Newberry
       • When does occupier owe a duty s1(3):
         • A) + B) + C)
           • Tomlinson v Congleton DC
           • Donoghue v Folkstone - no knowledge in winter, only summer
         • The standard of care s1(4)
           • Take such care as is reasonable in all the circumstances - Financial circumstances may be taken into account (Ratcliff v McConnell)
           • WARNINGS S1(5)
             • Tomlinson implies that almost any notice will be adequate. With children, prevention from entry will be more appropriate
             • VOLENTI S1(6)
               • Willingly accepting the risk but still taking it anyway
                 • Ratcliff v McConnel