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58 Cards in this Set
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Yeo v Times Newspapers Ltd [2015] EWHC 2132 (QB) => Defamation Act 2013 s.11: Trial by jury |
removal of presumption in favour of trial by jury is one of key provisions in Defamation Act 2013; s.11 provides that trials for both libel and slander are to be without a jury unless court orders otherwise. This case indicates that possibility of a jury trial in any future defamation claim is highly unlikely. Here judge refused to exercise his discretion to order a trial by jury in a claim concerning articles alleged to be defamatory of a member of Parliament. newspaper sought a jury trial on ground that members of public are best placed to decide whether publication was legitimate in these cases. However, judge pointed out that: ‘Parliament no longer regards jury trial as a right of “the highest importance” in defamation cases. It is no longer a right at all.’ |
Right to have trial by jury in defamation cases |
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Derbyshire CC v Times Newspapers Ltd [1993] (HL) =Who can sue: Local authorities/public bodies |
In Derbyshire CC v Times Newspapers Ltd [1993] (HL), defendant had published articles questioning propriety of dealings in claimant council’s pension fund. On preliminary point as to whether claimant council could maintain an action for libel HL, held that a local authority cannot maintain an action for libel on ground that threat of a civil action for defamation would have an inhibiting effect on freedom of speech and it was contrary to public interest that organs of government, whether central or local, should have a right to sue for libel. However, individual councillors or officials may bring proceedings. Lord Keith stated: “If the individual reputation of any of these is wrongly impaired by the publication any of these can himself bring proceedings for defamation.” |
Organs of government, whether central or local, should not have right to sue for defamation |
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Lynch v Knight (1861) (HL) => Slander |
In slander C must prove that slander resulted in special damage, e.g. as a result of slander, their business lost money. Equally, loss must not be too remote. The Court held that a wife can bring an action the slanderous third person if the third person’s words resulted in her losing the consortium of her husband. However, she can only do so if the words were such that the loss of consortium naturally and reasonably followed from them. In this case, the alleged special damage – namely, Mrs Knight being forced out of her marital home – was not shown to be a natural and reasonable consequence of the slander. On the other hand, if the wife lost her maintenance by her husband as a result of the third person’s slander, that lost maintenance may be treated as a special damages warranting monetary compensation. However, such loss could not have been presumed, it should have been separately and distinctly claimed in order to become applicable. |
What must be proved for slander? |
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Youssoupoff v MGM Pictures Ltd (1934) => distinction between libel and slander is sometimes unclear |
a Russian Princess had complained about words used in the film soundtrack to ‘Rasputin, the Mad Monk’, which she claimed had falsely suggested that she had been raped by Rasputin. court took the view that speech, which was synchronised with film, took a permanent form and should be treated as libel. Logically, however, if film broke down but the words continued it would be slander. Yet, this ignores fact that although the words are merely heard, they are permanently recorded which, it is submitted, suggests that they should be considered libel. contrast this with legislation which indicates that performances of a play and broadcasts on television and radio are to be treated as libel: see s.4(1) of Theatres Act 1968 and s.166 of the Broadcasting Act 1990. |
a Russian Princess had complained about words used in the film soundtrack to ‘Rasputin, the Mad Monk’, which she claimed had falsely suggested that she had been raped by Rasputin. |
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Sim v Stretch [1936] =>Cause of action: statement must be ‘defamatory’ |
The term ‘defamatory’ has been defined in a number of cases which identify defamatory statements as those which ‘tend to lower C in estimation of right-thinking members of society generally’ (Sim v Stretch [1936]) or lead to claimant being shunned or avoided (Youssoupoff). In Sim v Stretch a maid named Edith Saville left C’s employment and went to work for D. D sent a telegram (received at village shop) to C saying: Edith has resumed service with us today. Please send her possessions and the money you borrowed also her wages to Old Barton. Sim. C alleged that telegram meant that he was in pecuniary difficulties and had to borrow money from his maid. HL was doubtful that words could carry this meaning but, in any event, Lord Atkin said that such a meaning was not capable of being defamatory. =>This case was authority for existence of a threshold of seriousness about what is defamatory. This threshold has been raised by s.1(1) of Defamation Act 2013 which provides that only cases involving serious harm to claimant’s reputation can be brought in defamation. |
Sim v Stretch a maid named Edith Saville left C’s employment and went to work for D. D sent a telegram (received at village shop) to C |
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Youssoupoff v MGM Pictures Ltd (1934) =>Cause of action: The statement must be ‘defamatory’ |
The term ‘defamatory’ has been defined in a number of cases which identify defamatory statements as those which ‘tend to lower C in estimation of right-thinking members of society generally’ (Sim v Stretch [1936]) or lead to C being shunned or avoided (Youssoupoff). |
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Byrne v Deane [1937] =>Cause of action: statement must be ‘defamatory’ |
In Byrne v Deane [1937] some gambling machines were unlawfully kept in a clubhouse. These were removed by police after somebody had informed of their illegal presence. Soon after this a verse appeared on notice board of club which ended with the lines: ‘But he who gave the game away, may he byrnn in hell and rue the day.’ C brought an action for libel alleging that by these words D meant, and were understood to mean, that he was guilty of underhand disloyalty to his fellow club members. However, it was held not to be defamatory to say of a member that he had informed police of an illicit gambling machine on club premises, because right-thinking persons would not think less well of such a man, since right-thinking persons believe that law should be enforced, and that there is an obligation to assist forces of law and order. |
Gambling machine in a clubhouse |
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Cooke v MGN Ltd [2014] EWHC 2831 (QB) =>Cause of action: statement must be ‘defamatory’ – Threshold for serious harm |
In Cooke v MGN Ltd [2014] the new s.1 ‘serious harm’ threshold was considered in context of a newspaper article about exploitation of residents by unscrupulous landlords. statement in article would have been defamatory under old common law but, on Sunday following publication, newspaper published an apology. prompt apology was found sufficient to eradicate or at least minimise any unfavourable impression created by original article. Because claimants accepted that there was no specific evidence that article had caused serious harm to their reputations they failed to meet threshold requirement under s.1(1). => Cooke signalled that threshold for serious harm had been raised significantly by s.1(1) but more recent guidance by CA in Lachaux v Independent Print Ltd [2017] states that threshold had merely been raised from one of ‘substantiality’ to one of ‘seriousness’. requirement that statement ‘is likely to cause’ should be taken as connoting a tendency to cause serious harm. |
newspaper article about exploitation of residents by unscrupulous landlords |
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Monroe v Hopkins [2017] EWHC (QB) =>Cause of action: statement must be ‘defamatory’ – Threshold for serious harm |
serious harm threshold in context of tweets was considered in Monroe v Hopkins [2017] EWHC (QB). claimant, who comes from a family with military connections, alleged that D’s tweets accused her of vandalising a war memorial and desecrating memory of those who fought for her freedom and that she approved or condoned that conduct. D claimed that tweets did not bear meanings complained of and, because tweets are transient in nature, C had not shown tweets to have caused serious harm to her reputation. court found that, although abuse C had received in respect of tweets from other Twitter users caused her distress and injury to feelings (which does not amount to serious harm to reputation), serious harm test was satisfied because tweets ‘…not only caused Ms Monroe real and substantial distress, but also harm to her reputation which was serious’. =>D’s argument that tweets are an accepted part of social media activity and intended to be provocative and should therefore be treated with less credibility than ‘serious’ media publications was rejected. Although there is some evidence that statements made on Twitter are not taken seriously, tweets may extend beyond D to followers of other Twitter users. |
D’s tweets accused C of vandalising a war memorial |
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Berkoff v Burchill [1996] =>Cause of action: statement must be ‘defamatory’ – Abuse |
It is no excuse that words were not intended to be defamatory, although this may help support a defence of unintentional defamation. courts will ignore mere abuse but in Berkoff v Burchill [1996] a published description of an actor as ‘hideously ugly’ was capable of being defamatory. Although as a general rule mere abuse does not constitute a defamatory statement, in this case, statement potentially did more than merely injure feelings but was relevant to C’s acting career. Do you think this statement would meet ‘serious harm’ threshold to Mr Berkoff’s reputation as now required by s.1(1) of Defamation Act 2013? => Mr Berkoff would have had to produce evidence to show that statement seriously harmed his career |
published description of an actor as ‘hideously ugly’ |
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Tolley v JS Fry & Sons Ltd [1931] (HL) =>Cause of action: The statement must be ‘defamatory’ – True (or legal) innuendo |
Here, a famous amateur golfer alleged that a caricature of him had appeared without his knowledge or consent in an advertisement for Fry’s Chocolate. This, in itself, was not defamatory. However, Tolley claimed that for people who knew of his amateur status it would imply that, contrary to acceptable amateur conduct, he had accepted money. HL held advertisement to be capable of bearing the meaning alleged. People knowing of Tolley’s amateur status might think less of him and therefore his reputation would be diminished. |
caricature of a famous amateur golfer appeared without his knowledge or consent in an advertisement for Fry’s Chocolate |
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Cassidy v Daily Mirror Newspapers Ltd [1929] =>Cause of action: statement must be ‘defamatory’ – True (or legal) innuendo |
in Cassidy v Daily Mirror Newspapers Ltd [1929] there was nothing defamatory in publishing a photograph depicting Cassidy and a young woman announcing that they were engaged. However, the fact that Mr Cassidy was still married led majority of CA to recognise that words were defamatory of existing Mrs Cassidy, on basis that a reasonable person knowing of their relationship might assume that she had cohabited with Cassidy outside marriage. This, in 1928, would be regarded in a negative light. It was no excuse that newspaper did not know that Cassidy was already married, and had in fact been told by Cassidy that he was engaged to woman with whom he had been photographed. |
newspaper published a photograph of Cassidy and a young woman announcing that they were engaged. |
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Lewis v Daily Telegraph Ltd [1964] (HL) =>Cause of action: statement must be ‘defamatory’ – False (or popular) innuendo |
A false innuendo is one which a reasonable person guided by general knowledge would infer from natural and ordinary meaning of the words: Lewis v Daily Telegraph Ltd [1964]. In Lewis, a paragraph in a newspaper had stated that Fraud Squad were investigating affairs of a company and its chairman, Mr Lewis. This was in fact true, but it was claimed that paragraph contained an innuendo: that company was being operated in a fraudulent and dishonest way. majority of HL rejected this interpretation. A reasonable person might infer from paragraph that company and Lewis were suspected of fraud, but would not assume that Lewis and company were guilty of such conduct. =>The general test is therefore: would reasonable person view statement as defamatory on the particular facts of case? |
paragraph in a newspaper had stated that Fraud Squad were investigating affairs of a company and its chairman, Mr Lewis |
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Chase v News Group Newspapers Ltd [2002] EWCA => Cause of action: statement must be ‘defamatory’ – False (or popular) innuendo |
In Chase v News Group Newspapers Ltd [2002] EWCA, HL identified three possible defamatory meanings that might be derived from a publication alleging police investigations into conduct of a claimant. Chase level one meaning is that claimant was guilty. Chase level two meaning is that there were reasonable grounds to suspect that claimant was guilty. Chase level three meaning is that there were grounds for investigating whether claimant guilty. =>It is important to identify which level words used can and do mean, as this is meaning which must be shown to be true. |
three possible defamatory meanings that might be derived from a publication alleging police investigations into conduct of a claimant. |
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Charleston v News Group Newspapers Ltd [1995] (HL) =>Cause of action: statement must be ‘defamatory’ – Considering the statement in context |
In Charleston v News Group Newspapers Ltd [1995], News of the World had run a story about a computer game, which featured near-naked bodies of models in pornographic poses, on which heads of two characters from Australian soap ‘Neighbours’ had been superimposed. headline accompanied by photographs of characters as depicted in the game. actors complained that photographs suggested that they had participated in some way in making the game. Although accompanying article made it clear that actors had not participated in any way, it was argued that a significant proportion of readers skimming through newspaper would only read headlines and look at photographs, and would come to wrong conclusions. court refused to approach the case in this way. ‘Defamatory’ was judged by standard of ordinary reasonable person, who would have taken trouble to discover what article was about. It was therefore irrelevant that News of the World may have some readers who only read headlines. |
computer game, which featured near-naked bodies of models in pornographic poses, on which heads of two characters from Australian soap ‘Neighbours’ |
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Morgan v Odhams Press [1971] =>Cause of action: Does statement refer to claimant? |
In leading case of Morgan v Odhams Press [1971], Sun newspaper alleged that a girl had been kidnapped by a dog-doping gang because she was threatening to inform police of their activities. At relevant time the girl had been staying at C’s flat and C produced six witnesses who swore that they understood from article that he was connected with gang. story was held to be capable of a defamatory meaning. majority of HL found that it was not necessary to find a specific ‘pointer’ in article, or a ‘peg’ on which to hang such a reference. It was enough that ordinary reasonable person would, on the facts, have drawn inference that article referred to Morgan. |
a girl had been kidnapped by a dog-doping gang because she was threatening to inform police of their activities. At relevant time the girl had been staying at C’s flat. |
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Hulton & Co v Jones [1910] (HL) =>Cause of action: Does statement refer to the claimant? |
It is irrelevant that D did not intend to defame C. In classic example of Hulton & Co v Jones [1910], newspaper had published a humorous article describing activities of a fictional churchwarden from Peckham called Artemus Jones. C, Thomas Artemus Jones, was not a churchwarden and did not live in Peckham, but was a barrister practising on North Wales Circuit. HL nevertheless held that there was evidence upon which jury could conclude that reasonable people would believe Mr Jones was referred to and it was irrelevant that D had no intention to defame him. The onus is thus on newspaper to identify clearly who they wish to discuss – real Mr Jones or a fictional character. |
newspaper had published a humorous article describing activities of a fictional churchwarden from Peckham called Artemus Jones. |
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Knupffer v London Express Newspaper Ltd [1944] (HL) =>Cause of action: Does statement refer to the claimant? - Group defamation |
Generally, criticism of a group of individuals will not support an action for defamation unless group is so small that C can establish that statement must apply to every member of the class, or C can identify some particular reference in statement which singles him out. in leading case of Knupffer v London Express Newspaper Ltd [1944], Knupffer was unable to succeed in his claim for defamation. article in question had criticised Young Russian political party Mlado Russ, which had a small British branch of 24 members of which Knupffer was the head. He claimed that his position as head was enough to single him out from group. HL disagreed. There was not even a reference to British branch in article, which concerned the party generally. A reasonable person would therefore not have found Knupffer to be singled out in article. |
article in question had criticised Young Russian political party Mlado Russ, which had a small British branch of 24 members of which Knupffer was the head |
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Theaker v Richardson [1962] =>Cause of action: Publication |
In Theaker v Richardson [1962], D was liable for sending a defamatory letter to a married woman, which had been opened by her husband. letter, which had been addressed to the wife, had been sealed in a brown envelope which looked like an election circular. court upheld view of jury that it was foreseeable that husband would open letter. |
D sent a defamatory letter to a married woman, which had been opened by her husband |
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Huth v Huth [1915] (CA) =>Cause of action: Publication |
In Huth v Huth [1915] D, in an unsealed envelope, sent a letter to C’ mother which C alleged to be defamatory of them. letter was opened and read by an inquisitive butler in an admitted breach of his duty. C argued that since there was a presumption that postmen read postcards, even though they have no business doing so, same presumption ought to apply to unsealed envelopes. However, here CA held there was no publication even though envelope was unsealed; it was not part of butler’s duty to open letter and his conduct was not a direct consequence of sending it. |
D, in an unsealed envelope, sent a letter to C’ mother which C alleged to be defamatory of them |
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Huth v Huth [1915] (CA) =>Cause of action: Publication |
In Huth v Huth [1915] D, in an unsealed envelope, sent a letter to C’ mother which C alleged to be defamatory of them. letter was opened and read by an inquisitive butler in an admitted breach of his duty. C argued that since there was a presumption that postmen read postcards, even though they have no business doing so, same presumption ought to apply to unsealed envelopes. However, here CA held there was no publication even though envelope was unsealed; it was not part of butler’s duty to open letter and his conduct was not a direct consequence of sending it. |
D, in an unsealed envelope, sent a letter to C’ mother which C alleged to be defamatory of them |
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Slipper v BBC [1991] (CA) =>Cause of action: Publication - Repetition of a defamatory statement |
In Slipper v BBC [1991], C, a senior police officer, claimed that he was defamed in a film about his unsuccessful attempts to secure extradition of one of Great Train Robbers and that BBC had caused widespread repetition of libel through reviews in television columns of newspapers. CA held that, in certain circumstances original defamer will remain liable if republication is, on facts, the natural and probable result of the original publication. Note that CA in McManus v Beckham [2002] doubted whether Slipper test was fair to D. |
A senior police officer, claimed that he was defamed in a film about his unsuccessful attempts to secure extradition of one of Great Train Robbers |
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Godfrey v Demon Internet [2001] (QB) =>Cause of action: Publication - Publication on the internet |
Publication by omission (failing to remove defamatory statement) as in Byrne v Deane, applies where an internet service provider who has been informed of a libel on its internet server fails to remove it. The ISP will be unable to show that they had exercised reasonable care in relation to publication in question. In Godfrey v Demon Internet [2001] QB 201, statements defamatory of C were posted by an unknown person on an internet newsgroup hosted on D’s server. C notified D about defamatory material which could be accessed on its server but D did not remove the material from internet for about two weeks. D claimed that they were not responsible for postings by users on their internet sites. Although D successfully showed that they were not author, editor or publisher of defamatory statement within meaning of Defamation Act 1996, they could not show that they had taken reasonable care in relation to its publication. s.1(b) of 1996 Act provides a defence of innocent dissemination but this was not available to D in instant case because of their failure to take reasonable care in relation to publication. |
, statements defamatory of C were posted by an unknown person on an internet newsgroup hosted on D’s server |
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Metropolitan International Schools Ltd v Designtechnica Corporation, Google UK and Google Inc [2011] =>Cause of action: Publication - Search engine liability |
Defamation in respect of search engine liability for publication of statements
claimed to be defamatory was considered in Metropolitan International Schools Ltd v
Designtechnica Corporation, Google UK and Google Inc [2011] 1 WLR 1743, where it was
claimed that Google was responsible for defamatory comments on a website which
appeared on its search results page. The question was whether Google should be
regarded as a ‘publisher’ of the words complained of (whether before or after Google
had been notified of their defamatory comments) or whether it was a mere facilitator.
Mr Justice Eady found that Google was not liable for publication of the statements
because it had no control over the search terms entered by users of the search engine
or of the material which is placed on the web by its users. He confirmed that mere
facilitators, like telephone carriers, are generally not liable for defamatory content
and pointed out that a search engine is different from a website host; merely pressing
a button will not ensure that the offending words will never reappear on a Google
search snippet and there is no control over the search terms typed in by future users.
He further said that if someone feels they have been defamed by material on a website
then they should address their complaint to the person who actually wrote and
published the material. The operator of a search engine simply compiles an index of
pages from the web and it is this index which is examined during the search process.
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Godfrey v Demon Internet [2001] (QB) =>Cause of action: Publication - Publication on the internet |
Publication by omission (failing to remove defamatory statement) as in Byrne v Deane, applies where an internet service provider who has been informed of a libel on its internet server fails to remove it. The ISP will be unable to show that they had exercised reasonable care in relation to publication in question. In Godfrey v Demon Internet [2001] QB 201, statements defamatory of C were posted by an unknown person on an internet newsgroup hosted on D’s server. C notified D about defamatory material which could be accessed on its server but D did not remove the material from internet for about two weeks. D claimed that they were not responsible for postings by users on their internet sites. Although D successfully showed that they were not author, editor or publisher of defamatory statement within meaning of Defamation Act 1996, they could not show that they had taken reasonable care in relation to its publication. s.1(b) of 1996 Act provides a defence of innocent dissemination but this was not available to D in instant case because of their failure to take reasonable care in relation to publication. |
statements defamatory of C were posted by an unknown person on an internet newsgroup hosted on D’s server |
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Metropolitan International Schools Ltd v Designtechnica Corporation, Google UK and Google Inc [2011] =>Cause of action: Publication - Search engine liability |
Defamation in respect of search engine liability for publication of statements claimed to be defamatory was considered in Metropolitan International Schools Ltd v Designtechnical Corporation, Google UK and Google Inc [2011], where it was claimed that Google was responsible for defamatory comments on a website which appeared on its search results page. question was whether Google should be regarded as a ‘publisher’ of words complained of (whether before or after Google had been notified of their defamatory comments) or whether it was a mere facilitator. Mr Justice Eady found that Google was not liable for publication of statements because it had no control over search terms entered by users of search engine or of material which is placed on web by its users. He confirmed that mere facilitators, like telephone carriers, are generally not liable for defamatory content and pointed out that a search engine is different from a website host; merely pressing button will not ensure that offending words will never reappear on a Google search snippet and there is no control over search terms typed in by future users. He further said that if someone feels they have been defamed by material on a website then they should address their complaint to person who actually wrote and published the material. operator of a search engine simply compiles an index of pages from web and it is this index which is examined during the search process. |
Google showed defamatory comments on a website which appeared on its search results page. |
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Tamiz v Google Inc [2013] EWCA =>Cause of action: Publication - Search engine liability |
In Tamiz v Google Inc [2013], CA examined law on liability of providers of internet platforms such as Google as potential publishers of defamatory comments posted on a ‘London Muslim’ blog operated by Google. After C had complained to Google about defamatory content of blog, Google failed to promptly remove it from website. CA agreed that Google could not be said to be either a primary or a secondary publisher but after being notified of words complained of, there was an arguable case that Google was a publisher. facts were found to come within scope of Byrne v Deane. (However, liability was denied on other grounds.) |
comments posted on a ‘London Muslim’ blog operated by Google |
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Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002] (QB) =>Cause of action: Publication - Single publication rule |
In context of internet, one of most significant changes is contained in s.8 of Defamation Act 2013, which abolishes longstanding common law principle that each publication of defamatory material gives rise to a new cause of action. particular difficulties this posed for internet publication and for those operating online archives can be seen in Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002], where a Russian businessman brought a libel action in respect of statements in a printed newspaper and also in The Times newspaper’s website article. A settlement between parties was reached in respect of printed newspaper article but C brought a second claim in respect of same story which had been placed in newspaper’s online archive. |
a Russian businessman brought a libel action in respect of statements in a printed newspaper and also in The Times newspaper’s website article. |
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Godfrey v Demon Internet Ltd [1999] => Defences: Innocent dissemination |
Innocent dissemination is found in s.1 of Defamation Act 1996. It is now a defence to show that: 1. D is not author, editor or commercial publisher of statement 2. D took reasonable care in relation to publication 3. D did not know, or had no reason to believe, that what they did caused or contributed to publication of a defamatory statement. It thus serves to protect parties involved in distribution process, who inadvertently become involved in publication of defamatory material, provided that they undertake reasonable care. Further, s.1(3)(a)–(e) provide a non-comprehensive list of individuals who do not qualify as ‘authors’, ‘editors’ or ‘publishers’ -> Godfrey v Demon Internet Ltd [1999]. |
Innocent dissemination is found in s.1 of Defamation Act 1996. It is now a defence to show 3 elements. |
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Alexander v North Eastern Railway (1865) => Defences to defamation: Truth |
In Alexander v North Eastern Railway (1865), C was charged before magistrates for travelling on a train from Leeds for which his ticket was not valid and for his refusal to pay the proper fare. He was convicted and sentenced to 14 days’ imprisonment in default of payment of fine and costs. The statement published by D said that C was sentenced to three weeks’ imprisonment for the offence. Nevertheless, defence of justification succeeded because statement was not sufficiently inaccurate to defeat defence. D had shown statement to be substantially true and to prove the sting of the libel. |
C was charged before magistrates for travelling on a train from Leeds for which his ticket was not valid and for his refusal to pay the proper fare. |
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Wakley v Cooke (1849) => Defences to defamation: Truth |
defendant must justify every innuendo and not simply main allegation. burden is therefore on D to justify substantial truth or ‘sting’ of allegations. Section 2(1) of 2013 Act confirms this approach: if D can establish the ‘essential’ or ‘substantial’ truth of sting of libel there is no need to prove that every word of statement was true. |
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Telnikoff v Matusevitch [1992] => Defences to defamation: Honest opinion |
statement must be a comment on a true set of facts. This can be inferred from a headline as in Kemsley v Foot [1952], although HL seemed to adopt a stricter line in more recent case of Telnikoff v Matusevitch [1992]. Here, a letter was written in response to a previously published article in Daily Telegraph. In deciding whether allegation of racism was a statement of fact or comment, Court examined letter without reference to article it criticised. Their Lordships reasoned that many readers of the letter would not have read the article or have limited recollection of its contents. It should therefore be judged in isolation. Section 3 of Defamation Act 2013 gives protection in situations such as this, where D is not author of statement but is publishing statements made by others. In these circumstances defence of honest opinion will succeed unless C can show that D ought to have known that opinion stated was not held by author. => 3 Honest opinion (6) Subsection (5) does not apply in a case where the statement complained of was published by D but made by another person (“the author”); and in such a case the defence is defeated if C shows that the defendant knew or ought to have known that author did not hold the opinion.) |
letter was written in response to a previously published article in Daily Telegraph. In deciding whether allegation of racism was a statement of fact or comment, Court examined letter without reference to article it criticised. |
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Reynolds v Times Newspapers Ltd [2001] (HL) => Defences to defamation: Honest opinion |
The comment must also be fair and honest. courts use an objective test: was the opinion, however exaggerated, obstinate or prejudiced, honestly held by person expressing it? => This case lead to new defence introduced by s.4 of Defamation Act 2013 intended to reflect principles established in Reynolds v Times Newspapers Ltd [2001] (HL) and subsequent case law: Publication on a matter of public interest. |
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Watt v Longsdon [1930] => Defences: Privilege - Qualified privilege at common law |
In Watt v Longsdon [1930], D, a company director, received a letter from foreign manager of the organisation. letter alleged that C, who was managing director of company abroad, was immoral and dishonest. D informed company chairman of his suspicion that C was misbehaving with women. He also communicated statements, which were false, to C’s wife. CA held that communication to chairman was privileged because both publisher and receiver had a common interest in affairs of the company. However, publication to C’s wife was not privileged because D had no social or moral duty to inform her about unsubstantiated allegations even though she might have an interest in hearing them. |
D, a company director, received a letter from foreign manager of the organisation. letter alleged that C, who was managing director of company abroad, was immoral and dishonest. |
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Spring v Guardian Assurance [1995] (HL) => Defences: Privilege - Qualified privilege at common law |
if my old employer writes a reference for me and sends it to my new employer, that reference will be protected by qualified privilege. My former employer is under a social duty to provide such a reference. My new employer has a keen interest in receiving the reference. Both requirements are thus satisfied, and my former employer will be protected against a claim for defamation unless reference is written with malice: Spring v Guardian Assurance [1995]. -> negligent misstatement at common law? |
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Reynolds v Times Newspapers Ltd [2001] (HL) => Defences: Privilege - Qualified privilege at common law: Reynolds Test |
In view of importance given to freedom of expression, it has been questioned whether media should always be able to claim qualified privilege for any story they publish, especially when they concern political figures. In Reynolds, HL firmly rejected any general head of qualified privilege. courts would instead look at each case individually. Reynolds concerned a prominent public figure in Ireland, who claimed that a newspaper article implied that he had lied to his political colleagues. Although HL rejected any general head of qualified privilege, Lord Nicholls did give some guidance. In future, courts should consider a number of factors (which are not exhaustive) in deciding whether a duty to publish political discussion could be established, namely: 1. seriousness of allegation – more serious the charge, more the public is misinformed, and individual harmed, if allegation is not true 2. nature of information – is it a matter of public concern? 3. source of information 4. what steps have been taken to verify the information? 5. status of information, that is, how reliable is the report? 6. urgency of the matter 7. whether comment is sought from claimant 8. tone of the article 9. whether gist of claimant’s side of story has been told 10. general circumstances and timing of publication. |
courts should consider a number of factors (which are not exhaustive) in deciding whether a duty to publish political discussion could be established |
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Flood v Times Newspapers Ltd [2012] (HL) => Defences: Privilege - Qualified privilege at common law: Reynolds Test |
In Flood v Times Newspapers Ltd [2012], SC provided guidance on what is required to meet test. Note that although 2013 Act abolished Reynolds defence and courts will be required to apply the words used in statute, it does not define what is meant by ‘the public interest’. current case law would constitute a helpful (albeit not binding) guide to interpreting how new statutory defence should be applied. It is expected that courts would take existing case law into consideration where appropriate. There is no express requirement in new s.4 defence for publisher to prove that it acted both fairly and responsibly in gathering and publishing information. However, in considering whether D’s belief that publishing information was in public interest was reasonable, court must make such allowance for editorial judgement as it considers appropriate. This expressly recognises discretion given to editors in judgments such as that of Flood, but is not limited to editors in media context. |
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McCartan Turkington Breen v Times Newspapers Ltd [2001] (HL) => Defences: Privilege - Qualified privilege under statute |
Part II deals with reports which are privileged ‘subject to explanation or contradiction’, that is, that qualified privilege may be lost if it is proved that D has been requested, by C, to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so: s.15(2). |
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Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002] (QB) =>Cause of action: Publication - Single publication rule |
In context of internet, one of most significant changes is contained in s.8 of Defamation Act 2013, which abolishes longstanding common law principle that each publication of defamatory material gives rise to a new cause of action. particular difficulties this posed for internet publication and for those operating online archives can be seen in Loutchansky v Times Newspapers Ltd (Nos 2–5) [2002], where a Russian businessman brought a libel action in respect of statements in a printed newspaper and also in The Times newspaper’s website article. A settlement between parties was reached in respect of printed newspaper article but C brought a second claim in respect of same story which had been placed in newspaper’s online archive. |
a Russian businessman brought a libel action in respect of statements in a printed newspaper and also in The Times newspaper’s website article. |
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Godfrey v Demon Internet Ltd [1999] => Defences: Innocent dissemination |
Innocent dissemination is found in s.1 of Defamation Act 1996. It is now a defence to show that: 1. D is not author, editor or commercial publisher of statement 2. D took reasonable care in relation to publication 3. D did not know, or had no reason to believe, that what they did caused or contributed to publication of a defamatory statement. It thus serves to protect parties involved in distribution process, who inadvertently become involved in publication of defamatory material, provided that they undertake reasonable care. Further, s.1(3)(a)–(e) provide a non-comprehensive list of individuals who do not qualify as ‘authors’, ‘editors’ or ‘publishers’ -> Godfrey v Demon Internet Ltd [1999]. |
Innocent dissemination is found in s.1 of Defamation Act 1996. It is now a defence to show 3 elements. |
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British Chiropractic Association v Singh [2010] EWCA => Defences: Protection for statements in scientific or academic journals |
case of British Chiropractic Association v Singh [2010] EWCA highlighted attempts by large corporations to stifle scientific and academic debate with threat of libel proceedings. Section 6 of Defamation Act 2013 responds to public concerns about defamation laws being used to frustrate robust scientific and academic debate, or to impede responsible investigative journalism. Act creates a new defence of qualified privilege relating to material in scientific or academic journals, whether published in electronic form or otherwise, which has undergone a responsible peer-review process. |
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Alexander v North Eastern Railway (1865) => Defences to defamation: Truth |
In Alexander v North Eastern Railway (1865), C was charged before magistrates for travelling on a train from Leeds for which his ticket was not valid and for his refusal to pay the proper fare. He was convicted and sentenced to 14 days’ imprisonment in default of payment of fine and costs. The statement published by D said that C was sentenced to three weeks’ imprisonment for the offence. Nevertheless, defence of justification succeeded because statement was not sufficiently inaccurate to defeat defence. D had shown statement to be substantially true and to prove the sting of the libel. |
C was charged before magistrates for travelling on a train from Leeds for which his ticket was not valid and for his refusal to pay the proper fare. |
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Wakley v Cooke (1849) => Defences to defamation: Truth |
defendant must justify every innuendo and not simply main allegation. burden is therefore on D to justify substantial truth or ‘sting’ of allegations. Section 2(1) of 2013 Act confirms this approach: if D can establish the ‘essential’ or ‘substantial’ truth of sting of libel there is no need to prove that every word of statement was true. |
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Telnikoff v Matusevitch [1992] => Defences to defamation: Honest opinion |
statement must be a comment on a true set of facts. This can be inferred from a headline as in Kemsley v Foot [1952], although HL seemed to adopt a stricter line in more recent case of Telnikoff v Matusevitch [1992]. Here, a letter was written in response to a previously published article in Daily Telegraph. In deciding whether allegation of racism was a statement of fact or comment, Court examined letter without reference to article it criticised. Their Lordships reasoned that many readers of the letter would not have read the article or have limited recollection of its contents. It should therefore be judged in isolation. Section 3 of Defamation Act 2013 gives protection in situations such as this, where D is not author of statement but is publishing statements made by others. In these circumstances defence of honest opinion will succeed unless C can show that D ought to have known that opinion stated was not held by author. => 3 Honest opinion (6) Subsection (5) does not apply in a case where the statement complained of was published by D but made by another person (“the author”); and in such a case the defence is defeated if C shows that the defendant knew or ought to have known that author did not hold the opinion.) |
letter was written in response to a previously published article in Daily Telegraph. In deciding whether allegation of racism was a statement of fact or comment, Court examined letter without reference to article it criticised. |
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Reynolds v Times Newspapers Ltd [2001] (HL) => Defences to defamation: Honest opinion |
The comment must also be fair and honest. courts use an objective test: was the opinion, however exaggerated, obstinate or prejudiced, honestly held by person expressing it? => This case lead to new defence introduced by s.4 of Defamation Act 2013 intended to reflect principles established in Reynolds v Times Newspapers Ltd [2001] (HL) and subsequent case law: Publication on a matter of public interest. |
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Watt v Longsdon [1930] => Defences: Privilege - Qualified privilege at common law |
In Watt v Longsdon [1930], D, a company director, received a letter from foreign manager of the organisation. letter alleged that C, who was managing director of company abroad, was immoral and dishonest. D informed company chairman of his suspicion that C was misbehaving with women. He also communicated statements, which were false, to C’s wife. CA held that communication to chairman was privileged because both publisher and receiver had a common interest in affairs of the company. However, publication to C’s wife was not privileged because D had no social or moral duty to inform her about unsubstantiated allegations even though she might have an interest in hearing them. |
D, a company director, received a letter from foreign manager of the organisation. letter alleged that C, who was managing director of company abroad, was immoral and dishonest. |
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Spring v Guardian Assurance [1995] (HL) => Defences: Privilege - Qualified privilege at common law |
if my old employer writes a reference for me and sends it to my new employer, that reference will be protected by qualified privilege. My former employer is under a social duty to provide such a reference. My new employer has a keen interest in receiving the reference. Both requirements are thus satisfied, and my former employer will be protected against a claim for defamation unless reference is written with malice: Spring v Guardian Assurance [1995]. -> negligent misstatement at common law? |
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Reynolds v Times Newspapers Ltd [2001] (HL) => Defences: Privilege - Qualified privilege at common law: Reynolds Test |
In view of importance given to freedom of expression, it has been questioned whether media should always be able to claim qualified privilege for any story they publish, especially when they concern political figures. In Reynolds, HL firmly rejected any general head of qualified privilege. courts would instead look at each case individually. Reynolds concerned a prominent public figure in Ireland, who claimed that a newspaper article implied that he had lied to his political colleagues. Although HL rejected any general head of qualified privilege, Lord Nicholls did give some guidance. In future, courts should consider a number of factors (which are not exhaustive) in deciding whether a duty to publish political discussion could be established, namely: 1. seriousness of allegation – more serious the charge, more the public is misinformed, and individual harmed, if allegation is not true 2. nature of information – is it a matter of public concern? 3. source of information 4. what steps have been taken to verify the information? 5. status of information, that is, how reliable is the report? 6. urgency of the matter 7. whether comment is sought from claimant 8. tone of the article 9. whether gist of claimant’s side of story has been told 10. general circumstances and timing of publication. |
courts should consider a number of factors (which are not exhaustive) in deciding whether a duty to publish political discussion could be established |
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Flood v Times Newspapers Ltd [2012] (HL) => Defences: Privilege - Qualified privilege at common law: Reynolds Test |
In Flood v Times Newspapers Ltd [2012], SC provided guidance on what is required to meet test. Note that although 2013 Act abolished Reynolds defence and courts will be required to apply the words used in statute, it does not define what is meant by ‘the public interest’. current case law would constitute a helpful (albeit not binding) guide to interpreting how new statutory defence should be applied. It is expected that courts would take existing case law into consideration where appropriate. There is no express requirement in new s.4 defence for publisher to prove that it acted both fairly and responsibly in gathering and publishing information. However, in considering whether D’s belief that publishing information was in public interest was reasonable, court must make such allowance for editorial judgement as it considers appropriate. This expressly recognises discretion given to editors in judgments such as that of Flood, but is not limited to editors in media context. |
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McCartan Turkington Breen v Times Newspapers Ltd [2001] (HL) => Defences: Privilege - Qualified privilege under statute |
Part II deals with reports which are privileged ‘subject to explanation or contradiction’, that is, that qualified privilege may be lost if it is proved that D has been requested, by C, to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so: s.15(2). |
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Cookson v Harewood [1932] Chapman v Ellesmere [1932] => Defences: Consent |
It is a defence if C has expressly or impliedly consented to publication of defamatory matter. |
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Cookson v Harewood [1932] Chapman v Ellesmere [1932] => Defences: Consent |
It is a defence if C has expressly or impliedly consented to publication of defamatory matter. |
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Rantzen v Mirror Group Newspapers (1986) Ltd [1994] (QB) John v Mirror Group Newspapers Ltd [1997] (QB) => Remedies: Damages |
In past, a significant issue in law of defamation was that level of damages was set by the jury. Concern had been expressed that jury, despite judicial direction, was not best body to assess damages. After a series of notoriously high awards, there have been a number of reforms: 1. s.8 of Courts and Legal Services Act 1990 empowered CA to substitute its own figure of damages for that of jury without the need for a retrial 2. cases of Rantzen v Mirror Group Newspapers (1986) Ltd [1994] and John v Mirror Group Newspapers Ltd [1997] seek to increase judicial guidance. Although future trials in defamation will take place without a jury unless the court orders otherwise, a jury will now be directed to seek guidance from previous CA decisions under s.8, and to consider purchasing power of award and whether it was proportionate to damage suffered. |
in past, a significant issue in law of defamation was that level of damages was set by the jury. Concern had been expressed that jury, despite judicial direction, was not best body to assess damages. After a series of notoriously high awards, there have been a number of reforms. |
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Kiam v MGN Ltd [2003] QB Grobbelaar v News Group Newspapers Ltd [2002] => Remedies: Damages |
Reference may also now be made to level of damages awarded in personal injury cases. |
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Cairns v Modi [2013] => Remedies: Damages |
In Cairns v Modi [2013] CA held that reference to pain and suffering in personal injury cases could be made when considering damages in libel cases. remedies given by court are obviously important. They seek to re-establish reputation of claimant. Although a large award may express the jury’s indignation as to how newspaper has treated the claimant, courts have been careful to emphasise that damages should be compensatory and any larger award must be justified as exemplary damages. |
reference to pain and suffering in personal injury cases could be made when considering damages in libel cases. |
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Bonnard v Perryman [1891] (CA) => Remedies: Interlocutory injunctions |
court has jurisdiction to restrain by injunction the publication of a libel, but exercise of this jurisdiction is discretionary. An interlocutory injunction should therefore not be granted except in clearest cases, and should not be granted when D swears that they will be able to justify the libel, and court is not satisfied that they may not be able to do so. -> double negative, burden of proof is on D? |
court has jurisdiction to restrain by injunction the publication of a libel, but exercise of this jurisdiction is discretionary. |
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Holley v Smyth [1998] (QB) => Remedies: Interlocutory injunctions |
court’s discretion to grant interlocutory relief would not ordinarily be exercised to restrain a libel where D had a defence or claimed justification, unless C had proved that libel was plainly untrue. |
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Milne v Express Newspapers (No 1) [2004] Horrocks v Lowe => Defamation Act 1996, s.4(4) and s.4(5): Failure to accept offer to make amends |
If an offer to make amends under s.2 is made, but not accepted (s.3), it is a defence unless the defendant knew or had reason to believe that the statement referred to the claimant and was false and defamatory of the claimant (s.4). |
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