6. Defamation - Delict

Front 1

What was held in Spring v Guardian Royal Exchange 1995

Back 1

The pursuer sued the defender in negligence-his old employer- for a reference made which contained false and defamatory statements. As this was a case of economic loss the pursuer had relied on the defender stating facts correctly, he was awarded damages.

Front 2

Why did the pursuer sue in negligence rather than defamation in Spring v Guardian Royal Exchange 1995

Back 2

Because the defamatory statement would have denied damages under qualified privilege and he would have to prove malice, which he could not do.

Front 3

What are the three elements of defamtion?

Back 3

The statement must be defamatory, false, and there must be malice.

Front 4

Why does patrimonial loss not need to be proved in defamation?

Back 4

It has been said personal affront is sufficient loss

Front 5

What requirement is there in England vis-a-vis communication which is different in Scotland.

Back 5

In England defamatory statements must be communicated to a third party; in Scotland communication to the pursuer is sufficient.

Front 6

Which case shows communication of a defamatory statement to a pursuer only is sufficient in Scotland.

Back 6

Ramsay v Maclay 1890

Front 7

What test is laid down in which case, and by whom to see whether words are defamatory?

Back 7

Lord Atkin in Sim v Stretch 1936: 'would the words tend to lower the plaintiff the estimation of right-thinking members of society, generally'

Front 8

In which case did Lord Atkin give the test for whether words are defamatory?

Back 8

Sim v Stretch 1936

Front 9

On whom is the onus to prove whether a statement carries innuendo?

Back 9

The pursuer

Front 10

What test did Lord Anderson give to discern innuendo?

Back 10

'Would a reasonable man, reading the publication complained of, discover in it matter defamatory of the pursuer? Or, put otherwise the question is, what meaning would the ordinary reader of the newspaper out upon the paragraph which the pursuer complained of'

Front 11

In which case did Lord Anderson state a test for innuendo?

Back 11

Duncan v Associated Scottish Newspaper ltd 1929

Front 12

What subjective element may courts take into account in determining defamatory capacity?

Back 12

The likely persons to read or hear the statements

Front 13

What is the effect of a statement being established as defamatory?

Back 13

Malice and falsity is presumed.

Front 14

What is the natural inference when fair retort applies, rather than the inference of malice?

Back 14

That the defender was motivated by a desire to clear their name.

Front 15

Rather than inferring malice, what is inferred when the defence of qualified privilege applies?

Back 15

That the defender was motivated by a sense of duty.

Front 16

How may malice be established?

Back 16

By proof or animus injurandi (intent to harm) or by the defender making the statement knowing it to be false.

Front 17

What is meant by veritas?

Back 17

Truth

Front 18

What is the effect of a successful defence of veritas?

Back 18

The statement will not be defamatory as by definition defamatory statements are false.

Front 19

On whom is the onus to prove veritas?

Back 19

The defender

Front 20

What is veritas known as in England?

Back 20

Justification

Front 21

What was held in Hulton v Jones 1910

Back 21

The author of a novel created a character called Artemus Jones. A real person had the same name, who proved readers would understand the story as referring to him. Damages were awarded.

Front 22

To whom does liability attach with innocent defamation?

Back 22

Those making the defamatory statement and those who repeat or disseminate it.

Front 23

What is stated by S.1 of the Defamation Act 1996

Back 23

A defence is provided to innocent defamation if one is not the author, editor or publisher of the defamatory statement.

Front 24

Which Act and section states that there is a defence to innocent defamation if one is not the author, editor or publisher of the statements?

Back 24

S.1 of the Defamation Act 1996

Front 25

What was held in Cuthbert v Linklater 1935

Back 25

It was defamation to claim a woman lacked womanly delicacy

Front 26

What was held in Morrison v Ritchie 1902

Back 26

Defamation for an accusation that one had sex before marriage.

Front 27

What was held in Brownlie v Thomson 1859

Back 27

Defamation for an accusation that someone is a blackguard

Front 28

What was held in Liberace v Daily Mirror 1959

Back 28

Damages awarded for a statement which carried and innuendo of homosexuality.

Front 29

How do accusations of financial unsoundness tie in with defamation?

Back 29

While they may not lower the estimation of the pursuer in the eyes of society it has been suggested defamation operates to protect a person's commercial character as well as their private persona.

Front 30

What is stated by the Representation of the People Act 1983 S.106(1)?

Back 30

It is a criminal offence to make a false statement about the personal character of conduct of a candidate for parliament before or during an election.

Front 31

How may a charge under S.106(1) of the Representation of the People Act 1983 be defended.

Back 31

If it may be shown that there were reasonable grounds for belief in the statement and the accused did in fact believe it to be true.

Front 32

What are the possible defences to defamation?

Back 32

1. Innocent Dafamation

2. Offer to make amends

3. Veritas

4. In Rixa

5. Vulgar abuse and sarcasm

6. Fair Retort

7. Fair Comment

8. Absolute Privlege

9. Qualified Privlege.

Front 33

What was held in Godfrey v Demon Internet 2001

Back 33

Once an internet provider was informed that they are publishing defamatory material they will be liable if they fail to take action to remove it.

Front 34

What is an offer to make amends?

Back 34

An offer to make correct a defamatory statement (made innocently or not), publish an apology and pay compensation.

Front 35

Under what act and section may offers to make amends be made?

Back 35

Defamation Act 1996 S.2

Front 36

What is the effect of acceptance of an offer to make amends?

Back 36

Proceedings are ended.

Front 37

What is stated by the Defamation Act 1996 S.3

Back 37

Provision is given for enforcement and determination of terms not agreed upon under an offer to make amends.

Front 38

What defence is given by the Defamation Act 1996 S.4?

Back 38

If an offer is made and rejected, a defence is given.

Front 39

What makes a defence good under the Defamation Act 1996 S.4

Back 39

The defender having no grounds to believe the statement was defamatory to the pursuer.

Front 40

What is stated by the Defamation Act 1952 S.5

Back 40

To provide a defence of veritas, the defender only needs to prove the truth of facts which are defamatory. Other facts which do not materially affect the reputation of the pursuer do not.

Front 41

What is meant by in rixa?

Back 41

In a brawl.

Front 42

What type of defamation may a defence of in rixa be used?

Back 42

Spoken defamation, not written.

Front 43

What is the effect of a defence in rixa?

Back 43

Words uttered in the moment are seen as not being seriously intended.

Front 44

What was held in Christie v Robertson 1899

Back 44

A misunderstanding at an auction led to the defender stating the pursuer should have been arrested 20 times in the last 5 years. This was seen as in rixa, so was not defamatory.

Front 45

What was held in Harper v Fernie 1810

Back 45

No damages were awarded for the pursuer being called a 'damned drunken old whore' in an arguments due to in rixa.

Front 46

Why are statements of vulgar abuse and sarcasm not actionable.

Back 46

Because they are seen as not being seriously intended, like the defence of in rixa.

Front 47

What is the effect of the defence of fair retort?

Back 47

That if the retort contains defamatory statements, there will be no presumption of malice because the motivation is seen to protect the defender's own reputation.

Front 48

What was held in Gray v SSPCA 1890

Back 48

The defenders replied to an accusation of cruel injustice from the pursuer by repeating complaints made against him in respect of which he had been prosecuted, but found not proven. They also pointed out the difference between a verdict of not proven and guilty. In order for a fair retort to apply the reply must keep within the bounds of relevance.

Front 49

What was held in Blair v Eastwood 1835

Back 49

The defender overstepped the boundaries of fair retort when he was accused by the pursuer of having fathered her children by then accusing the pursuer of having sex with 2 other men.

Front 50

To what does the defence of fair comment apply to?

Back 50

Statements of opinion on matters in which the public has an interest.

Front 51

What criteria did Lord McLaren state in Archer v Richie & Co 1891 would need to be met to allow the defence of fair comment?

Back 51

'The expression of an opinion as to a state of facts truly set forth is not actionable, even when that opinion is couched in vituperative or contumelious language.'

Front 52

In which case did Lord McLaren state the criteria which must be met fore the defence of fair retort to apply.

Back 52

Archer v Richie & Co 1891

Front 53

Other that the criteria stated by Lord McLaren, what criteria must be met in order for the defence of fair comment to apply.

Back 53

1.The statement must be a comment on fact

2.The facts must be truly stated

3.The facts must concern a matter of public interest.

Front 54

What is stated by the Defamation Act 1956 s.6

Back 54

The defence of fair comment will be good will be good if the facts upon which the opinions are true, even if there are other facts which are not.

Front 55

On whom is the onus to show the criteria for the defence of fair comment have been fulfilled and what is the effect of that?

Back 55

The pursuer will have to show that the comments were made with the intention to injure.

Front 56

To what does the defence of absolute privilege apply?

Back 56

Statements made in Westminster, stataments made in reports or papers issued by parliemants, pleadings in court and witness statements made in eveidence.

Front 57

What is qualified privilege?

Back 57

Where a statement does not attract defamatory liability due to it being made in response to a duty. The recipient of the statement must have an interest in hearing or reading it.

Front 58

What did Lord Atkinson state in Adam v Ward 1917 in terms of qualified privilege.

Back 58

'A privileged occasion is...an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.'

Front 59

What was held in Reynolds v The Times Newspapers 2001

Back 59

In order for a newspaper to be given protection for statements which could not be defended by fir comment or veritas 10 points must be taken into account.

1.The seriousness of the allegation

2. the nature of the information and the extend to which the subject matter is of public concern.

3.The source of the information.

4.The steps taken to verify the information

5.The status of the information

6.The urgency of the matter

7.Whether comment was sought from the plaintiff.

8. Whether the article contained the gist of the plaintiff's side of the story.

9. The tone of the article. It need not adopt allegation as statements of fact.

10.The circumstances of the publication, including the timing.

Front 60

What is the difference between verbal injury and defamation?

Back 60

Verbal injury is the appropriate form of action for where a reputation has been harmed by words that are not defamation. Relevant culpa is malice, but unlike defamation this is not presumed.

Front 61

What must be proven in an action for verbal injury and by whom?

Back 61

The pursuer must prove that there was falsity and malice as it is not presumed, as in defamation.

Front 62

What was held in Steele v Scottish Daily Record and Sunday Mail ltd 1970

Back 62

Where it can be shows that a false statement was intended to hold the subject up to hatred, contempt of ridicule, damages in the form of solatium are available, along with any patrimonial damages.