Defamation

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A Claim in Defamation

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Defamation is about making a false statement which affects someone's reputation. The necessary elements are:

- defamatory meaning

- was published (said to at least one person is sufficient)

- statement referred to the claimant (could make someone identifiable by their description or as a member of a particularly small class)

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Statement referred to the claimant

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Hulton v Jones - he wrote a sketch and published it, about Artemis Jones, a lawyer from Wales who was going to visit his mistress. There was a real Artemis Jones who was a lawyer from Wales. He was successful suing in defamation as it was sufficient that a reasonable person could identify it as him.

Newstead - Harold Newstead (#1) was a convicted bigamist from North London and an article was written identifying him as such, but there was another Harold Newstead living in the same area of North London, so sued in defamation as a reasonable person could have thought the article was about him.

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A Claim in Defamation (2)

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Libel is the permanent form of defamation (usually written) and slander is the transitory form (usually speech). In the past you didn't have to prove actual damage for libel but for slander you did have to prove the special damage suffered.

Thornton v Telegraph [2011] - there must be some "threshold of seriousness" which is meant to exclude trivial claims

But s1 Defamation Act 2013 changed this: "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

The burden of proof is on the claimant and it is a stricter test than Thornton. In the original draft "substantial harm" was used but as a result of press pressure it was changed to the higher level of "serious harm".

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Cooke v MGN [2014]

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- The Mirror wrote an expose about the landlordson the Benefits Street program, one of whom worked for a social housing associationand it made the head of the social housing association out to be a fat cat withno care for the poor.

- Court said you judge serious harm from the dateof the claim (which can be issued up to a year from the date of publication).

- “I do not accept that in every case evidencewill be required to satisfy the serious harm test. Some statements are soobviously likely to cause serious harm to a person’s reputation that thislikelihood can be inferred.” But in other cases evidence is necessary. This ideawould apply to accusations of terrorism, paedophilia, serious crimes, hypocrisyof a public figure, professional misconduct e.g. cheating in professionalsports.

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Lachaux v Independent Print [2015]

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- His wife moved to the Gulf State with him but the marriage broke down and he used legal efforts to keep her there, take away the children etc and a newspaper published an article about him and he sued them.

- As a result of s1(1) "it is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely result in future from, the publication complained of".

- Evidence of serious harm could include: financial loss, medical evidence, loss of hospitality/social standing. You could also use the likelihood of these happening as evidence.

However Lachauxshows that even if we have a really grave allegation we might not have seriousharm if the allegations are made by someone without credibility – it isunlikely to satisfy s1 if theallegations are so “out there”.

But this creates a potentially slippery slope as the personmaking the statement could claim to have no credibility in order to avoid adefamation claim.

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Jameel v Dow Jones

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- The courts should be willing to kick outdefamation cases when it is not worth what the court will spend i.e. is not areal and substantial tort

- Jameel was from Saudi Arabia and accused ofbeing an Al Qaeda funder on a website owned by Dow Jones, a US-based company.But he decided to sue them in the UK and his claim was struck out as only 6 peoplein the UK had read the claims (the legal teams on both sides and Jameel) so itwas an abuse of process.

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Williams v MGN

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Lots of people had seen the statement accusing him of being a gang member, however he was already a convicted murderer so it was struck out as there was no additional damage to his reputation - no real and substantive tort.

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Is the Jameel jurisdiction struck out by s1?

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The judge in Lachaux thouht so, but Dr Hyde disagrees:

- He says that the introduction of the “harm”requirement may lead to less reliance on Jameelstrike-outs as the question whether a tort is substantial becomes an ingredientof the tort.

- “This would shift the issue from the balancingexercise by the court in determining whether the ‘game was worth the candle’ toasking whether the claimant had a reasonable prospect of satisfying one of therequired elements of the claim.”

- It is therefore more likely that the claim isstruck out or there is a summary judgement instead of it being struck out underJameel.

- Hyde believes that “judges should be willing tocontinue to use the flexibility offered by Jameelto manage cases that appear disproportionate to the reputational rights theyseek to defend”.

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Possible Non-Natural Claimants

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Can bodies with legal personality bring a claim?

- Can sue: living natural person; trading company; trading partnership; universities

- Can't sue: local authority; political party; trade union

South Hetton Coal [1984] - "the question is really the same by whomsoever the action is brought - whether a person, a firm or a company. But though the law is the same, the application of it is, no doubt, different with regard to different kinds of [claimants]" - Lord Esher.

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Possible Non-Natural Claimants (2)

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Steel & Morris v UK (2005) - McDonald's sued Greenpeace London activists...S & M argued that Article 10 says they cannot be sued by a corporation. The ECtHR reject that as there is a competing interest in protecting the viability of companies.

Jameel v Wall Street Journal [2007] - the good name of a company is something of value that should be protected.

There have been many arguments about whether defamation should protect the reputation of a company - could it impinge on public scrutiny?

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Possible Non-Natural Claimants (3)

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Derbyshire v Times Newspaper:

- Times published an article questioning dealings between council leader and a third party and also investments made by the council. Identical claims brought by individuals and the council.

- Did the council have a cause of action? "Not only is there no public interest favouring the rights of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it...to admit such actions would place an undesirable fetter on freedom of speech" - Lord Keith.

- If we want to be able to critique the actions of government we should be prepared to say that they have no action in defamation. However the claim by the leader of the council was successful as he is an individual, so employees of public bodies can sue, if there is sufficient to identify individuals.

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Possible Non-Natural Claimants (4)

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Thompson v Jones [2013] - individual employees brought claims about a website which had derogatory comments about the local authority as it had specifically mentioned some of them.

Defamation Act 2013 leaves Derbyshire as it is but was suggested that the Derbyshire rule should extend to all non-natural persons but that was refused.

“This would remove completely the right of a wide range ofbusinesses and other organisations to protect their reputation. We considerthat to deprive them of this right would be excessive and disproportionate” -Lord McNally.

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Possible Non-Natural Claimants (5)

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New requirement from the Defamation Act 2013 that a body that trades for profit must show serious financial loss - it must be relative as clearly the size of the company has a bearing on what "serious" financial loss is. For causation you must show that the statement caused the financial loss.

Can private bodies performing public functions sue in libel? Potentially, providing they can show financial loss.

Lord McNally - "I have already indicated in earlier debates our view that is preferable for the courts to have the flexibility to continue to develop the Derbyshire principle, rather than attempt to prescribe rigid boundaries in statute."

The reputation of these private companies is part of thereason why they get the public contracts so if they can’t sue and protect theirreputation they are excluded from these kinds of contracts.

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Defences in Defamation

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Traditionally defences were where everything happened as it was fairly easy to prove the three elements.

Defences had got themselves into a bit of a mess prior to the 2013 Act so it was decided to reset defences to a more modern set, but some old ones remain.

We have a series of new, slightly codified defences in the Defamation Act:

- s2: defence of truth

- s3: defence of honest opinion

- s4: defence of reporting on public interest

- s5: meant to provide a defence to internet businesses who happen to publish defamatory statements

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Truth (s2)

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It replaces the common law defence of justification.

"substantially true" makes it a wider defence and this is acceptable because if your reputation is damaged by something that is substantially true but there are parts that are false, your reputation is not going to be repaired.

Eady J says that truth shouldn't necessarily be a complete defence - should it be? It is not appropriate to publish everything that is true.

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Truth (2)

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Moseley is a good demonstration of the unresolved relationship between privacy and defamation - he could have sued in defamation for the implication that he was a Nazi. We're giving truth the priority here when really we should be giving true information with a public interest in publishing the priority.

Might be an idea to read misuse of private information into s2(1) (by way of s3 or s6 HRA) in order to ensure that there is sufficient protection.

Spent convictions are an exception to s2.

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Honest Comment

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This was a common law defence for reviews: had to be on a matter of public interest, got to be an opinion, must be based on facts that are true, must explicitly or implicitly refer to the facts, must be one that could be made by an honest person.

Joseph v Spiller [2011] - people fell out about a booking of a band and a review was left on their website. Problem with this defence was the requirement that it was on a matter of public interest as it left out a whole raft of comments which could be seen as honest and based on true facts but couldn't have been said to be on a matter of public interest.

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Honest Opinion (s3)

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Under the 2013 Act, honest comment is renamed honest comment: statement must be an opinion, must state the basis of opinion and an honest person could hold the opinion on the basis of fact or on the basis of a privileged statement.

With truth (s2) you can be as malicious as you want to but under s3 your motivation matters as you have to show that an honest person could have held the opinion.

Does the removal of public interest requirement affect the balance? Does it push it further towards expression than protection of reputation?

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Honest Opinion (2)

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The honest person may still be prejudiced, exaggerated or obstinate in his views (Lord Phillips in Joseph) and this is incorporated into s3.

Why doesn't honest opinion apply to false information from non-privileged statements where you didn't know that the information from the original statements wasn't true?

Think about whether a better balance has been reached, whether it is the right balance or whether we should have a different balance and where it fits overall in the search for a better expression/reputation balance.

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Honest Opinion (3): Reynolds v Times Newspaper [2001]

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- Previous to this case, in order to claim privilege either you had to fall in an area of absolute privilege or you had to have a corresponding duty/interest e.g. a person writing a reference.

- R developed qualifying privilege and created a new defence - basically says if you're publishing a set of info in the public interest, provided you have acted responsibly as a journalist you should publish and be protected.

- "Any lingering doubts should be resolved in favour of publication". This push for responsible journalism is coming from the HRA.

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Lord Nicholl's considerations for qualified privilege:

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1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation 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.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have already been the 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 plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

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

9. The tone of the article.

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Qualified privilege

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Jameel v Wall Street Journal - should interpret Reynolds broadly and provided you are acting responsible you would have a defence. Don't have to show that requirements 7 and 8 are satisfied every time.

Flood v Times Newspapers - Lord Mance says that what responsible journalism is is in the hands of editors and journalists.

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Publication on Matters of Public Interest (s4)

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Rather than Reynolds, we now have s4 which creates a defence of publication on matter of public interest - objective test that the statement was in the public interest; subjective test that the defendant believed the publishing of the statement was in the public interest. Must have regard to all the circumstances.

s4(4) codifies Lord Mance's statement in Flood that we've got to give allowance to editorial judgement. It is almost asking if the reasonable editor believed that publishing the statement was in the public interest and they may have a broader than average perception of the public interest.

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Publication on Matters of Public Interest (2)

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The other thing that is expansive about s4 is that it applies to anyone where Reynolds seemed to apply merely to traditional media journalists.

s4 is meant to bring Reynolds privilege into an arena where it can be used by anyone which is one reason why we don't have a long list of requirements and merely leave it at considering all the circumstances.

The emphasis demonstrates that we care more about expression now than we previously did.

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Publication on Matters of Public Interest (3)

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Is it a good idea to have a public interest defence in defamation? It is still damaging to someone's reputation - is that an appropriate balance for the law to reach? Originally prior to the 2013 Act it was thought that we were too protective of reputation and not protective enough of speech but this seems to be pushing it the other way.

s4(3) reproduces the common law reportage defence - if you report a dispute in the public interest in a fair and accurate manner you'll be entitled to a defence. No need to verify the information.

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s4(3) - reproduction of the reportage defence:

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Al Fagih: essence of the judgement is that the Reynolds' rules apply but that where there has been full attribution, but not adoption, of a political dispute then verification is not essential. But the ambit of the reportage defence is not clearly defined or confined by this case.

Roberts v Gable, per Ward LJ:

- Best description of reportage is "the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possible some other kind of dispute'".

- "the underlying rationale justifying the defence is the public policy demand for there to be a duty to impart the information and an interest in receiving it"

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s4(3) - reproduction of the reportage defence (2):

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In Roberts v Gable, Eady J accepted that the article was protected by reportage because it reported both sides of the political dispute in a "disinterested way" - it did not matter that the journalist responsible for the publication did not take steps to verify the information nor seek comment from either claimant. What was important was the way in which the dispute was reported.

The Reynolds factors apply to the reportage defence except the need to verify the truth and accuracy of what is published as in a true case of reportage there is no need to do that.

This is due to the nature of reportage, in that "to qualify as reportage, the report...must have the effect of reporting, not the truth of the statements, but the fact that they were made" (Ward LJ at para 61).

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s4(3) - reproduction of the reportage defence (3):

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On the public interest element, Lord Hoffman in Jameel (para 51): "the fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article".

Recent CA case of Charman v Orion said that "the reportage doctrine...cannot be logically confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected".

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Criticisms of Reportage:

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- It may not require as high a level of public interest as other aspects of s4

- It may be used even when the publisher knows that claims are false, particularly if the very facts of the statement is of interest

- It is aimed at different goals than the rest of s4, so should be separate and not a public interest defence

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Defences and Defamation on the Internet

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It was felt that the web hosts were getting a raw deal because they were being held liable for postings they never made.

Real push to not deter people from creating things like Trip Advisor because of a fear of defamation claims. They don't want to have to pay damages but may be quite happy to take offending posts down.

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Defamation Act 1996 s1 ("the booksellers defence")

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Innocent publication defence - kind of works well if you are simply a sales person as you wouldn't be liable for defamatory statements as you're not the author, editor or publisher. But the problem for Trip Advisor type sites is because they are essentially the publisher and the reasonable care standard is quite high to reach.

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Electronic Commerce Regulations 2002, regulation 17:

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Internet Service Provider (ISP) is shielded from liability "in damages or for any other pecuniary remedy" arising out of information transmitted by a third party where they act as a mere conduit. The transmission must not involve storage of data for longer than is necessary.

This defence does not prevent the court issuing an injunction (but the court will consider whether this serves a purpose).

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Defamation Act 2013 s5

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As a result of the two defences above we have this section which provides a defence for website operators where they didn't post the comment and can identify the person who did to the claimant and once they've done that they are free of liability.

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Defamation Defences in the US

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NY Times v Sullivan - "heed their rising voices" articles about civil liberties in the South, particularly in Montgomery, Alabama. Article was partly about the corruption of the police and their racist behaviour and the Chief of Police, Mr Sullivan, sued the NY Times and the author of the article and he won.

Ny Times says this is a breach of the First Amendment and the SC said it is only defamatory if you published it knowing it was false or being reckless as to the possibility of it being false. NY Times win and are not liable.

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Defamation Defences in the US (2)

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Actual malice is very speech protective as you have to show at the time of publishing you believed it was false or were reckless as to falsity and that's a very high standard to prove. Tried to get this standard into the Defamation Act 2013, would it infringe Article 8 if we did? (As the US Bill of Rights doesn't have an Article 8 equivalent).

There's an argument that perhaps we should split the interest in vindication of your reputation from the interest in compensation. Argument that defamation might be better done if we could create a way to vindicate a reputation if something false is published without having to drag it through court.

Perhaps the possibility for compensation preventing people from publishing is not the way to balance the competing protection of expression and reputation.