INTRODUCTION
The law of defamation is concerned with protecting the reputation of an individual, corporation or other legal person from the harm caused by the communication of untrue statements to a third party. It involves a balance between protecting the claimant and maintaining the right of freedom of speech. Legal Aid is not available either to pursue, or to defend an action for defamation;
Defamation is only defined at common law. Early references to inducing ‘hatred or ‘contempt’ {Parmiter v Coupland (1840)} have been replaced by Lord Atkin's classic definition given in Sim v Stretch (1936):
“do the words tend to lower the plaintiff [claimant] in the estimation of right-thinking members of society generally?”
DISTINCTION BETWEEN LIBEL AND SLANDER
There is no single tort of “defamation”, there are two different torts - libel and slander. It is necessary to distinguish between the two as in some aspects different rules apply.
The basic distinction lies in the form in which the statement is conveyed to a third party. Libel applies to statements conveyed in a permanent form; slander applies to statements conveyed in a transient form. It is clear therefore that spoken words are slander and printed words are libel.
Youssoupoff V MGM Pictures Ltd (CA 1934): The court had to consider the status of spoken words in a permanent form, in the context of a film. The court held that the film was libellous, placing an emphasis on, although not holding as decisive, the permanency of the film.
S 3 of Law of Libel Amendment Act 1888: Libel is a crime also. Slander is not a crime. .
For most cases of slander special/actual damage is necessary. Only four slanders are actionable viz:
1. Imputation of a criminal offence punishable with imprisonment.
2. Imputation of disease.
3. Imputation of unchastity to a crime.
4. Imputation of unfitness or incompetance.
WHO CAN SUE?
Only a living person may sue.
Derbyshire County Council V Times Newspaper ( 1993 HL): Public authority cannot sue for defamtion.
Metropolitan Saloon Omnibus Co. V Hawkins (1859 ): Trading corporation may sue for defamation affecting its trading reputation or property.
ELEMENTS OF DEFAMATION
There are a number of hurdles, each of which the claimant must cross to prove a case of defamation:
1. The statement / picture / gesture was defamatory;
2. The statement referred to the claimant;
3. The defamatory statement was published to a third party.
1. DEFAMATORY STATEMENT
Monson V Tussauds Ltd (1894): A wax-model exhibition was held to constitute a libel. The claimant had been cleared of a murder charge, however a model of him with a gun described as his own was displayed in the famous museum in close proximity to other depictions of murders and notorious murder scenes.
Charleston V News Group Newspapers Ltd (1995 HL): An article must be read as a whole with the picture which may not be defamatory. The position would be different if the antidote in in the text is in a place where the reader would be unlike to find it.
Tolley V JS Fry (1930 HL): The words may be prima facie innocent but, in the light of extrinsic facts known to persons to whom the statement is published, bear some secondary defamatory meaning. This is a true, or legal, innuendo.
Cassidy V Daily Mirror Newspapers (1929): The words may reasonably be taken as meaning, not what the defendant intended by them.
Youssoupoff V MGM Pictures Ltd (CA 1934): The court had to consider the status of spoken words in a permanent form, in the context of a film. The court held that the film was libellous, placing an emphasis on, although not holding as decisive, the permanency of the film.
Berkoff V Burchill (CA 1996): If the meaning of the article is hideously ugly, it could be capable of being defamatory. This is so as it makes him an object of ridicule in eyes of public.
2. REFERENCE TO THE CLAIMANT
Morgan V Odhams Press Ltd (HL 1941): For identifying the refered person the test would be as follows: whether a hypothetical, sensible reader of the article, having knowledge of the special circumstances, would believe that the claimant was refered to. In other words the statement must reasonably be understood to refer to the claimant.
Knuppfer V London Express Newspaper Ltd (HL 1944):
1. Normally where the defamatory statement is directed at a class of persons no individual belonging to the class is entitled to say that the words were published of him.
2. Smaller the group likely there is a claim.
3. Each member of a body, no matter how large, would be defamed when the assertion consisted that no one of the members of a community was elected unless he had committed murder (Lord Porter).
3. PUBLICATION
Theaker V Richardson (1962): It is not always foreseable that one spouse will open the other’s mail. But it could be foreseable (as it happened in that case) if the letter looks like a election circular the spouse might open the letter.
Godfrey V Demon Internet (2001 ): If the claimant notifies a server of an internet website and the website fails to withdraw its defamatory materials posted by other, it might be liable.
Forrester v Tyrrell (CA 1893): Reading out a defamatory document to a third party is, on the balance of authority a libel . Thus If A dictates a defamatory letter to a typist he publishes a slander in doing so.
REPUBLICATION
Speight V Gosnay (CA 1891): D will be liable in three situations viz:
1. where he authorises or intended the republication eg sending a letter to a newpaper (Cutler V McPhail 1962); speaking in a press conference Sims V Wran (1984).
2.where the person who republishes the words is under a legal or moral duty to repeat them to a third person.
3. where the republication is the natural and probable result of the original publication. Read the facts of McManus V Beckham (2002)
DEFENCES
1. Justification (Truth).
2. Fair Comment.
3. Privilege.
4. Offer to Make Amends.
5. Innocent Dissemination
6. Consent.
1. JUSTIFICATION (TRUTH)
Alexander V North Eastern Railway (1865): It is not necessary to prove that the statement is literally true. It is sufficient if it is true in substance p 163 of Salmon & Heuston on the Law of Torts (1992 Sweet and Maxwell ).
Williams V Reason (1988): D may widen the meaning of the words by arguing that they impute general dishonesty rather than particular matter. See the facts.
Prager V Times Newspapers: D may plead justification of any alternative meaning of the word. Pleading of justification must state the meaning which is sought to justify.
S 5 of the Defamation Act 1952: provides that the defence does not fail if the truth of a number of charges cannot be proved, provided that the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
S 13 of the Civil Evdence Act 1968, as amended by the Defamation Act 1996: Where the defendant's allegation is that the plaintiff has been convicted of an offence and in fact he was convicted, it is conclusive evidence that he did commit it.
S 8 of the Rehabilitation of Offenders Act 1974: The fact that the plaintiff’s conviction is “spent” under the Rehabilitabon of Offenders Act 1974 does not prevent the defendant from relying upon justification, but in this case the defence is defeated by proof of malice. For detail see p 435 of Winfield.
2. FAIR COMMENT
It is a defence that the statement is a fair comment upon a matter of public interest. What is in the public interest is a question of law for the judge and, whilst there is no exhaustive category of such matters, it covers the conduct of government and public institutions, works of art and literature produced for public consumption, theatrical productions and the like. A man’s private life is not a matter of public interest unless it reflects upon his ability or fitness for public office.
To plead the defence of fair comment the defendant must cross three hurdles.
The defendant must show that the defamatory statement concerned
1. a matter of public interest.
2. fair comment.
3. an observation or inference from facts, not an assertion of fact .
Branson V Bower (2001 CA):
Slim V Daily Telegraph (1968): The comment must be fair and the test is whether the defendant was an honest man expressing his genuine opinion. Honest belief is enough.
Telnikoff V Matusevitch (1991 HL):
1. The House held that the test for fair comment is objective one: “could any fair-minded man honestly express that opinion on the proved facts? {p 268 of Torts by Alastair Mullis and Ken Oliphant (1997)}.
2. Where D is proved to have been actuated by malice the defence of fair comment will be defeated. Burden of proof on the claimant.
Brent Walker group plc V Time Out Ltd (1991): In case of republication publisher has to prove that his re-publication is fair and accurate.
3. PRIVILEGE
A. Absolute privilege (with or without malice)
Statements made on an occasion of absolute privilege are not actionable regardless of whether the defendant was malicious. They include the following:
(a) Statements in Parliament
Artcle ix of Bill of Rights 1689: Statements made in the course of parliamentary debate and proceedings.
Section 1 the Parliamentary Papers Acr 1840: Reports, papers, votes and proceedings ordered to be published by either House of Parliament.
Section 13 of the Defamation Act 1996: Members of Parliament may now waive Parliamentary privilege for the purpose of bringing proceedings. Hamilton V Al Fayed (2001) is the prominent example in this regard.
(b) Statements made during the course of judicial proceedings, whether by judge, jury, counsel or witnesses, provided they are broadly relevant to the issue before the court.
Trapp v Mackie (HL, 1979): The privilege extends not only to proceedings in an ordinary court of law but to any tribunal recognised by law and acting in a similar manner, even though it is not empowered to take a final decision on the issue.
Addis v Crocker (HC 1961): The Disciplinary Committee of the Law Society would get the privilege.
Taylor V Director Serious Fraud Office (1999 HL): Absolute privilege covered any statement or conduct which is such that it can fairly be said to be part of the process of investing a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.
Mahon V Rahn (2000):
(c) Communications between solicitor and client in connection with litigation. It is not clear whether other communications attract absolute or merely qualified privilege, but in any event what passes between them is only protected in so far as it is reasonably referable to the solicitor‑client relationship (Minter v Priest (HL 1930)).
(d) Communications by one officer of state to another in the course of his official duty (Chatterton v Secretary of State for India (CA 1895)). It is doubtful whether the privilege extends below communications on a ministerial level, though there may well be a qualified privilege.
(e) By section 14 of the Defamation Act 1996 fair and accurate reports of proceedings in public before any court in the United Kingdom, the European Court of Justice, the European Court of Human Rights or any international criminal tribunal set up by the United Nations. The report must be, published, contemporaneously with the proceedings.
(f) Statutory protection is given to various reports of the Parliamentary Commissioner, for Administration and of Local Commissioners.
g) Statements between husband and wife.
B. Qualified privilege (without malice)
QUALIFIED PRIVILEGE AT COMMON LAW
A. Duty to make the statement
Examples: Rreporting to the police
B. Defence of assets or reputation against C’s attack (Regan V Taylor 2000)
C. Helping others in pursuing one’s legitimate interests (Beach V Freeson 1972).
D. Protect public interests, basically by the newpapers. See also Reynold, above.
QUALIFIED PRIVILEGE UNDER STATUTE
A. Court reporting
Schedule 1 of the Defamation Act 1996: A fair and accurate report, contemporaneous or not anywhere in the world is privileged without explanation or contradiction.
B. Parliament
Fair and accurate extracts and abstarcts of papers published by parliamentary authority (Scedule 1 of the Defamation Act 1996)
C. Other official bodies and meetings
This defence exists in respect of statements made for the protection of one’s private interests or for the protection of the public interest, as where a complaint is laid before the proper authorities to secure the redress of a public grievance. It is also available where the maker of the statement and the recipient have a common interest in the matter, or where the recipient alone has an interest and the maker is under a legal, moral or social duty to communicate as, for instance, where a reference is given to a prospective employer.
Where D is proved to have been actuated by malice the defence of qualified privilege will be defeated.
Adam v Ward (HL 1917)): An essential requirement is that the person to whom the statement is made must have an interest or duty, legal, social or moral, to make it to the person to whom it is made. An equally essential requirement is that the person to whom the statement is made must either have a reciprocal interest or be under a corresponding duty to receive it.
Watts V Longsdon (CA 1930): Adam rule does not mean that both parties must have a duty or both an interest. One may have an interest and the other a duty as in the common case of an employment reference.
Horrocks V Lowe (1975 ): If the D knew that the statement was untrue at the time he made it.
Reynolds V Times Newspaper (1999 HL): There was an attempt by The Times to expand the scope of qualified privilege to protect “political information” in all circumstances, subject only to the test of malice. This attempt failed.
After citing Lord Atkinson’s formulation {Adam v Ward (HL 1917)} with approval, Lord Nicholls, who gave the leading speech in the House of Lords, summed up his position in these words: “My conclusion is that the established common law approach to misstatements of fact remains essentially sound. Thc common law should not develop “political information” as a new ‘subject matter’ category of qualified privilege, whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern” (625j).
Lord Nicholls also suggested a no-exhaustive list of circumstances which would be relevant to the question of whethethe media should be regaded as having a duty to convey information and public a corresponding interest in receiving it:
“1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the alleagation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.
8. Whether the article contained the gist of the claimant’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of facts.
10. the circumstances of the publication, including the timing.”
Turkington and Others V Times Newspapers (2000):
4. OFFER TO MAKE AMENDS
The Defamation Act 1996 repeals section 4 of the Defamation Act 1952 and provides, by sections 2-4, for the similar but modified defence of an offer to make amends. The offer, which must be in writing,, must be not only to make a suitable correction of the alleged defamatory statement and a sufficient apology to the plaintiff, but also to pay such compensation and costs as may be agreed or determined to be payable. If such an offer is accepted no proceedings may be brought or continued in respect of the publication concerned, but if it is not, the defendant has a defence unless he knew or had reason to believe that the statement referred, or was likely to be understood as referring, to the plaintiff and was both false and defamatory of him. It is presumed that the defendant did not have the requisite knowledge of, or reason to believe, those matters until the plaintiff proves otherwise. An offer to make amends cannot be made after serving a defence in defamation proceedings and, once made and relied upon by way of defence, no other defence may be raised. The offer may be relied on in mitigation of damages whether or not it was relied on ss a defence.
5. INNOCENT DISSEMINATION
Section 1 of the Defamation Act 1996
(1) In defamation proceedings a person has a defence if he shows that--
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
6. CONSENT
It is a defence that the claimant has expressly or impliedly consented to the publication complained of. Most clear example would be- in cases of slander the aggrieved party sometimes, perhaps rashly, invites the speaker to repeat that before witness.
REMEDIES
1.DAMAGES
2.INJUNCTION
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