LA3 Defamation

LA3 Defamation

1. Introduction

   • Found in case law and Defamation Acts 1996 and 2013
   • Restriction under Article 10(2) - "protection of the reputation of others"
   • Civil tort - damages and/or an injunction can be awarded at the discretion of the judge
   • Juries now abolished by Section 11 Defamation Act 2013 - dealt with by single judge
   • Claiming <£10,000 - Fast track procedure in the County Court
   • Claiming >£10,000, High Court, QBD
   • Libel - permanent form of defamation; slander - non-permanent form of defamation
   • 4 elements to prove 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?
   • Definition from Sim v Stretch 1936: "a defamatory statement is one which tends to lower a person, in the estimation of right-thinking members of society...it must be communicated to another"; requirement of 'serious harm' under S1 DA 2013

2. Step 1: Does the statement refer to the claimant?

   • Prove that an ordinary reader/listener would take the statement to refer to the claimant
   • Morgan v Odhams Press 1971 - article did not mention him, but readers can 'skim-read' articles, and would come to the conclusion that the Claimant was referred to
   • Dropping hints: Hayward v Thompson 1981 ('wealthy benefactor of the Liberal Party'); Lloyd v David Syme & Co 1986 (allegation of match fixing implied that as the captain, he must have taken part)
   • Pictures/pixellating - DJ Ian Thompson and Ashley Cole 2006 - pictures pixellated and names not mentions, but hints in the story meant people could still recognise them
   • Implied references, e.g. saying a school is badly run is the same as saying the Head Teacher is running it badly
   • Unintended references still amount to defamation: Hulton v Jones 1910, fictional character named Artemus Jones was suggested to be an adulterer. A barrister by the same name successfully sued for libel
   • Groups of people: Knupffer v London Express Newspapers 1944 said words had to be published "of the claimant"; however, 10 dog handlers successfully sued in Aitken v Police Review Publishing Committee 1995, even though names were not mentioned
   • Corporations can sue: Marcucci v BBC 2008 - claimed the company sold blood derivative products infected with HIV

3. Step 2: Is the statement defamatory?

   • Requirement of 'serious harm' under Section 1 of Defamation Act 2013 - harder to prove defamation
     • Cooke & Anr v MGN and Trinity Mirror 2014 -
       • Not enough to show that the statement was "bound to cause" a change in a person's perception
       • Apology published soon after the statement may be sufficient to eradicate or minimise the unfavourable impression given
       • Obiter - some statements that may be likely to cause serious harm - a national newspaper wrongly accusing someone of being a paedophile or a terrorist
   • What is the meaning of defamatory?
     • Sim v Stretch - lowers their reputation in the estimation of right-thinking members of society...exposes the claimant to hatred, contempt or ridicule
     • Jason Donovan v The Face 1992 - successfully sued for saying he was gay; unlikely to be successful nowadays
     • Berkoff v Burchill 1996 - sued for comparing actor to Frankenstein's monster
     • Ivereigh v Associated Newspaper 2009 - Catholic spokesperson
     • Knightley v Associated Newspapers 2007 - picture of her in a bikini with the headline being a quote from a mother saying if pictures like this carried a health warning, my daughter may have lived (died from anorexia) - defamation as it called Keira anorexic and implied she had an eating disorder
     • Spoofs and jokes: Elton John v Guardian 2008 (charity balls and fictional diary); Charleston v NGN 1995 (naked bodies with faces of claimants; saved by further explanation as the article explained that the images were digitally altered (therefore, article must be read as a whole)
     • Who is the reasonable man - Mitchell v Faber and Faber 1998: necessary to consider the impression people would be given now, rather than about the period of time it was written about
     • If the claimant already has a bad reputation: Kate Moss 2001 - fallen into a coma after taking cocaine; had not happened in Spain (as the article said), but it is the 'sting' of the statement that the court will look at (which was true - defence of Truth)
     • Innuendoes - Liberace v Daily Mirror Newspaper 1959 (description implied he was gay although did not explicitly say it - illegal to be gay at this time, so would have ruined his career)
     • Jeynes v News Magazine Ltd 2008: she said the article suggested she was a transsexual. However, claim dismissed as no reasonable reader would assume that the words carried this implication, went on to create the Jeynes Criteria
       • Governing principle is reasonableness
       • Hypothetical reader is not naive nor unduly suspicious...may indulge in a little loose thinking, but is not a man avid for scandal
       • Over-elaborateness is best avoided
       • Article must be read as a whole with any 'bane and antidote' taken together
       • Court to rule out any meaning which can only emerge as a result of "some strained, forced or utterly unreasonable interpretation"
     • Innocent innuendo - Tolley v JS Fry and Sons 1931; amateur golfer's photo used to advertise product without consent. May have compromised his amateur status
     • Pictures - Capehorn v Independent News and Media 2006, photo supplied but with the condition that it was captioned 'posed by models'; Independent failed to do so; claim successful

4. Step 3: Has the statement been published?

   • Communicated to another person other than the claimant or the defendant's spouse
   • Online - publication occurs when a reader accesses the text (so fresh publication every time someone reads the material)
     • Loutchansky v Times Newspapers 2001
   • Jameel v Wall Street Journal 2006 - article only downloaded by 5 people in the UK, so there had been no 'substantial publication'; claim failed
   • Regulation 19 Electronic Commerce Regulations 2002 - material stored by users of the site, providers not liable for damages if they did not know that the material posted was defamatory, and acted quickly to remove it once they did know
     • Publishers could be vicariously liable for defamation - claimant usually sues the person with the most money
     • Latest case involving defamation online - Lord McAlpine 2013: sued two celebrity tweeters and threatened to sue over 500 others (ended up donating to Children in Need instead)

5. Step 4: Do any defences apply?

   • Old law - justification, fair comment and public interest
   • Defamation Act 1996 - innocent dissemination
   • Defamation Act 2013 changed name of old defences, and added a couple more. Also made it slightly more difficult to sue for defamation
     • Section 2 - Truth: a defence for the defendant to show that the statement was "substantially true" - minor errors do not matter, as in Kate Moss 2001
       • Taylforth v NGN 1994
       • Grobbelaar v NGN 2002
     • Section 3 - Honest opinion: prove the statement was a statement of opinion; 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. The defence fails if the claimant can show that the defendant did not hold the opinion
       • Pinder-Whites v Aitken 1995 (successful)
       • Keays v Guardian Newspapers 2003 (former mistress of a Cabinet Minister - successful)
     • Section 4 - Public interest: prove the statement was a statement on a matter of public interest, and publishing the statement was in the public interest
       • London Artists v Littler 1969 - behaviour of public officials and authorities; all forms of art, entertainment and literature; court cases
       • Difficult area is whether private lives of public figures and celebs can be considered a matter of public interest. Generally not, but where they have put an aspect of their life into the public domain, or where they are viewed as a role model, any behaviour may be considered a matter of public interest
       • Reynolds v Times 2001 - Reynolds criteria (now abolished but partly in DA 2013) gives 10 points on what would amount to public interest
     • Section 5: defence for operators of websites where they can show that it was not the operator who posted the statement (fails if the claimant can show it was not possible to identify the poster, or if the operator failed to respond to a complaint)
     • Section 7: Absolute privilege - complete freedom of speech during parliamentary proceedings/debates, and also in the court proceedings

6. Remedies for defamation

   • Defamation Act 1996 - Offer of amends
     • Publish suitable correction and a sufficient apology; pay claimant compensation costs (put this defence forward before any other defence)
     • Accepted - parties settle; not accepted and C wins case, court is likely to reduce the damages payable in recognition of the D's offer of amends
     • Nail v Harper Collins and News Group 2004
   • Part 36 Payment
   • Part 37 Payment
     • Roach v Sun Newspaper 1992
   • Equitable remedy of injunction - interlocutory injunctions to stop further publications and protect evidence; prohibitory injunctions to stop something being published
     • Discretionary
   • Damages
     • General damages
     • Contemptuous damages
     • Nominal damages (Grobbelaar)
     • Compensatory damages
     • Aggravated damages
     • Exemplary damages