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Mind map

Defamation

jc94055z MEL LPC English

Mind map about Defamation: establishing the claim, defences, remedies and malicious falsehood

Mind map: Defamation

Map content

Defamation

  1. (1) Establishing the claim

    • (i) Libel (permanent) or slander (transient)
    • (ii) Communicated to third party
    • (iii) Refers to C
    • (iv) Lowers C in eyes in mind of right thinking members of society
      • Innuendo (true - requires extrinsic knowledge, false - meaning is clear from statement)
      • Consider context as a whole [Charlston v News Group]
    • (v) Causes serious harm to C's reputation (or serious financial detriment if company) [s. 1]
    • (vi) Within limitation period
      • 1 year from cause of action accruing [s. 5 '96]
        • Single publication rule [s. 8] - abolished multiple rule
          • Each subsequent publication is only a new cause of action if materially different from original
  2. (2) Defences

    • Burden of proof shifts to D once claim is established
    • Truth [s. 2]
      • Substantially true - minor inaccuracies are irrelevant
      • Consider strength of evidence
    • Opinion [s. 3]
      • Statement of opinion, not fact [s. 3(2)]
      • Indicate basis of opinion [s. 3(3)]
      • Must be honestly held, based on facts existing at the time of publication [s. 3(4)]
      • Defeated by showing D didn't hold opinion or malice [s. 3(5)]
    • Statutory absolute privilege [s. 14 '96]
      • Privileged due to public policy, even if malice/untrue
      • Parliamentary proceedings (although can be waived) [s. 13 '96]
        • Reporting on parliamentary proceedings only attract absolute privilege if official reports in Hansard or White Papers (otherwise QP)
      • Judicial proceedings if fair, accurate and contemporaneous [s. 14 '96]
        • Must be balanced, materially accurate and portrayed as reporting on events, not fact
    • Statutory qualified privilege [s. 15 '96]
      • Substantially fair and accurate (based on whole context) report on public proceedings (parliament/court)
        • Doesn't need to be contemporaneous
      • No malice
    • Public interest [s. 4]
      • Statement on matter of public interest
        • Tone, importance, circumstances, verification, source, urgency, etc. [Reynolds]
        • Steps taken to verify, tone, circumstances (urgency) [Grobelaar v News Group]
          • Corruption in sport is in public interest
          • Press are not judge/jury - should submit allegation to authorities before printing
          • Defence failed as didn't verify and mocking campaign for villification
        • Nature of information, seriousness of allegation, responsible journalism (tone, steps taken to verify, comment sought) [Jameel v Wall Street]
          • Terrorist financing is in public interest
        • Public interest: political life, governance of public bodies, etc. [Flood]
          • If article published online and D finds out made mistake and doesn't correct, no longer public interest
      • D reasonably believed in public interest
    • Innocent dissemination [s. 1 '96]
      • Commercial distribution and D is not author, editor or publisher
        • Applies to ISP, TV carriers, etc. if not acting in editorial capacity [s. 1(3)(d)]
      • Took reasonable care
        • If put on notice and do not remove, will fail [Godfrey v Demon Internet]
      • Did not knowingly contribute to publication
    • Internet Defences
      • Acting as mere conduit (transmit not initiate/modify) - merely hosting or caching article and holds no longer than necessary [A17-22 ECR]
      • Operators of websites [s. 5]
        • Operator can prove it was not them that posted statement [s. 5(2)]
        • Will fail if C cannot identify who was responsible, gave operator notice or malice [s. 5(3)] [s. 5(11)]
    • Offer to make amends [s. 2-4 '96]
      • Offer in writing before defence served
      • Publishes correction and apology and pays costs/compensation
        • If accepted, claim ended [s. 3]
        • If rejected, D can rely on the offer as his defence but then cannot rely on another defence [s. 4]
          • Offer may mitigate damage [KC v MGN - public apology and offer of amends mitigated damages by 50%]
  3. (3) Remedies

    • Damages (for loss of reputation/ consequential economic loss)
      • Should not exceed maximum recoverable for personal injury [Elton John v MGN]
    • Injunction
      • Interim are rare as infringe A10 and are essentially a pre-trial of the issues
    • Statement in open court
      • D admits allegations untrue and apologises
      • Formal record of falsity of allegation [PD536.1]
      • Court may order publication of a summary of their judgment [s. 12/s. 13]
  4. (4) Malicious Falsehood

    • (i) Requirements
      • Untrue statement about C
      • Malice
        • Did not believe/was reckless regarding truth and desire to injure
      • C suffered/is likely to suffer economic loss as natural and direct result
    • Remedies: damages/injunction
    • Vs. Defamation
      • Burden of proof higher than defamation as prove malice
      • Same limitation period as defamation (1 year)
      • MF easier to obtain interim injunction
      • Don't need to prove loss of reputation in MF

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LPC MEL Mind Map on Defamation, created by jc94055z on 11/08/2015.
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jc94055z
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