What are some procedures for taking action
- ADR
- Taking an action to court defamation cases are now tried without a jury unless the court orders otherwise
- heard in the county court or high court
- Under the defamation act 1996 has to be heard within 12 months
- Legal aid not available
What is the definition of defamation
- Defamation is a tort where the claimant is seeking compensation for damage to their reputation
- Defamation cases require the court to balance two competing rights, which are, the right of the claimant to protect their reputation and the right of the defendant to freedom of expression
What is the significance of the case of Mcdonalds?
- This is where Mcdonald won a case because a group of activist had no access to legal aid
- ECHR held that legal aid can sometimes be available in exceptional circumstances
What are the four factors needed for an action of defamation ?1.
- Statement must be defamatory. This is a statement that would damage the D’s reputation. Case of sim and stretch defined this
- The statement must directly refer to the C
- The statement must have been published
- Publication of the statement has caused or is likely to cause harm to the c
What are the four factors needed for an action of defamation ?1.
- Statement must be defamatory. This is a statement that would damage the D’s reputation. Case of sim and stretch defined this
- The statement must directly refer to the C
- The statement must have been published
- Publication of the statement has caused or is likely to cause harm to the c
What is meant by a defamatory statement
- Sim v Stretch( was not defamatory in this case but defined it as) defined this as will this have an impact on your overall reputation.
- Has the c’s reputation been adversely affected or put at risk by the statement
- How would the reasonable man behave around the C.
- Not friends or family
- some facts include , think less of the individual , the individual lacks the ability to do their job effectively , avoid the individual or treat them as a figure of fun
What cases support the factors of what a defamatory statement is ?
- Parkins v Scott - Vulgar abuse or insults are not defamatory
- Bryne v Dean - snitching is not defamatory.” right thinking members of society”
- Jason Donovan v Face- sexuality is considered defamatory as this would make him out to be
- Berkoff v Burchill- Object of ridicule. People laughed at him so he was an object of fun
What is another factors of defamatory factors ?
- Context is important
- Charleston v News group newspaper- is the picture enough to be defamation ? pICTURES AND ARTICLE HAVE to be taken together
What is meant by Innuendo ?
This is a statement that doesn’t directly criticise the C but indirectly
- Tolly v Js Fry and sons- implication (innuendo) that he had been paid to advertise the chocolates were held to be defamatory when he was not paid
- Liberace v Daily mail -
What are the cases that link to Innuendo ?
- Tolley v JS Fry and Sons Ltd (1931)
- liberace v Daily mail - lowered his reputation , describing and implying that C is gay is defamatory
- Cassidy v Daily Mirror - Defamatory because there was an implication that
What is meant by Requirement of serious damage to reputation
This was introduced under section 1 (1)of the defamation act 2013. introduced the requirement that the innuendo or defamatory statement must have caused or is likely to cause serious damage to the C’s reputation
- Aims to reduce the number of claims
- Cooke v MGN 0
What is the significance of the case of COOKE V MGN?
- links to section 1 (1 of the defamation act 2013
- courts used this case to decide what serious damage to a reputation is. They highlighted when an action would not cause serious damage to a reputation ie
1. The libel was not overly seriously
2. Has an apology been issues- if so there is not a case for defamation
3. Whether there is any proof of serious harm to the reputation
What is meant by the statement must refer to the C or be taken to refer to the C
- It must be proven by the C that the ordinary , reasonable reader or listener would take the statement as referring to them
- Hulton V jones-
- A picture is also capable of being defamation - Dwek v Macmillan - he was pictured near a prostitute itvwas capable of being defamation
What cases link to the idea that the statement must refer to the claimant or to be taken to refer to the claimant
- Hulton v Jones- The claimant can be named by their actual name or a fictional name.
- Dwek v Macmillan Publishers Ltd and others- The claimant’s picture can be used.
- Riches v News Group - Defamatory statements may be made about a group of people.
What is meant by the statement must be published ?
For it to be published it the information has passed from the defendant to a person other than the claimant or the defendant’s spouse.
- Huth v Huth
What are the defences for defamation ?
Truth - s2 Defamation Act 2013. - This suggests that if the information is true it is substantially true then its not defamation - Small inaccuracies will not prevent the defence from applying. , this is similar to the defence of justification
- Honest opinion – s3 Defamation Act 2013. This new defence aims to give greater protection to freedom of expression and replaces the old defence of ‘fair comment’.
- Responsible publication on a matter of public importance - S4 Defamation Act 2013.
- Absolute privilege – statements covered by absolute privilege cannot be defamatory.
- Qualified privilege – this applies to statements made in certain specified circumstances, it is broader than absolute privilege.
- A defence for operators of websites - s5 Defamation Act 2013 relates to online libel and will, in certain circumstances, provide website operators with complete immunity
- Innocent dissemination – Defamation Act (1996). Modernised the common law, which drew a distinction between those who published the libel and those who merely disseminated it.
Explain truth as an defence of defamation
Truth - s2 Defamation Act 2013.
A defence to a defamation claim where the defendant can prove that the statement however damaging to the claimants reputation it is substantially true. Small inaccuracies will not prevent the defence from applying. T
Explain the defence of honest opinion
- Honest opinion – s3 Defamation Act 2013. This new defence aims to give greater protection to freedom of expression and replaces the old defence of ‘fair comment’. Requires 3 elements
1. The statement contained is a statement of opinion. Galloway v Telegraph Group Ltd.
- The statement indicates whether in general or specific terms, the basis of that opinion. Joseph v Spiller (2010)
- An honest person could have held that opinion, on the basis of:
- Any fact which existed at the time the statement was expressed
- Anything claimed to be a fact in a privileged statement that was published
Explain the defence of Responsible publication on a matter of public importance
Responsible publication on a matter of public importance - S4 Defamation Act 2013.
• The statement complained of was on a matter of public importance/interest
• The defendant reasonably believed its publication was in the public’s interest
• Matters of public interest are not defined in the act
Explain the defence of Absolute privilege
Absolute privilege – statements covered by absolute privilege cannot be defamatory. This only covers the person making the statement and not subsequent reports of the statement. some examples include
• Parliamentary proceedings/comments, including Hansard
• Fair and accurate reports of court proceedings, which are held in public. Covers any court or tribunal anywhere in the world
• Communications between solicitor and client
• Statements made by one spouse to another
Explain the defence of Qualified privilege
Qualified privilege – this applies to statements made in certain specified circumstances, it is broader than absolute privilege. The defence will not be successful if there is malice.
There is a new provision in s6 Defamation Act 2013 which:
Covers statements published in scientific or academic journals where the statement relates to a scientific or academic matter and before it was published, independent subject matter ‘peer review’ took place.
Explain the defence of offer to amends
Offer of amends – s2 Defamation Act 2013
Which is:
A written correction or apology, publish correction in a reasonable manner and payment of compensation and/or costs.
What is the defence for operations of websites
A defence for operators of websites - s5 Defamation Act 2013 relates to online libel and will, in certain circumstances, provide website operators with complete immunity. This section constitutes a significant development to the law of defamation.
Section 5(2) provides that it will be a defence for an operator of a website to show that it was not they who 'posted' the statement on the website. Under section 5(3), the defence will be defeated if all three of the following conditions apply:
(a) It was not possible for the claimant to identify the poster of the statement,
(b) The claimant gave the operator notice of their complaint in relation to the statement, and
(c) The operator failed to respond to the notice in accordance with any provisions contained in regulations.
What is the defence of innocent dissemination
Innocent dissemination – Defamation Act (1996). Modernised the common law, which drew a distinction between those who published the libel and those who merely disseminated it.
S1
Innocent dissemination is not liable unless he has actual knowledge/reason foreseeability that it was defamatory.
S1(1)
Applies to printers, distributors, sellers, broadcasters of live TV, internet. Not authors, editors or publisher.
