Defamation

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