Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
36 Cards in this Set
- Front
- Back
|
Innocent dissemination |
The law takes a more lenient attitude towards those who are not the authors,printers or first or main publishers of a libel but who take only a subordinate partin its dissemination Defamation Act 1996 (Barbados), s 20 extends the defence of innocentdissemination to the printer of defamatory matter. |
|
|
Such disseminators have a defence to an action for libel if they can show: |
(a)that,at the time that they disseminated the newspaper or book, they did notknow that it contained libellousmatter; and (b)that it was not due to any negligence in conducting their business that theydid not discover the libel.(Vizetellyv Mudie’sSelect Library Ltd [1900] 2 QB 170, hen |
|
|
Liability of internet service providers |
It will often be futile for a person who has been defamed on the internet tocontemplate legal proceedings against the original defamer, who may beanonymous, untraceable, located in a foreign jurisdiction which does not recognizecommon law libel principles, or without resources. It will often be futile for a person who has been defamed on the internet tocontemplate legal proceedings against the original defamer, who may beanonymous, untraceable, located in a foreign jurisdiction which does not recognizecommon law libel principles, or without resources. Clearly, unlike in the case of a newspaper or magazine, it would be completelyimpracticable for ISP officials to inspect all material transmitted on the internet bythe ISP for potentially defamatory statements; and whereas software filteringtechnologies can assist in blocking access to criminal content, such as childpornography, they would be incapable of identifying merely libellous material. |
|
|
prima facie
|
based on the first impression; accepted as correct until proved otherwise.
|
|
|
CompuServe and Prodigy |
decisions isthat an ISP which takes a laissez-faire (relaxed, distant) approach and refrainsfrom exercising control and monitoring the content of messages posted on theinternet will escape liability for defamation, while an ISP which conscientiouslyexercises such control will be penalised in damages. |
|
|
s 1(3)(e) Defamation act of 1996 (UK) |
an ‘operator or provider of access to a communications system by means of whichthe statement is transmitted, or made available, by a person over whom he has noeffective control’, is not to be considered the publisher of a defamatory statement;and provided he shows that he took reasonable care over the publication and didnot know, and had no reason to believe, that he had caused publication of adefamatory statement, he will have a defence to liability. See Godfrey v Demon Internet [1999] 4 All ER 343 |
|
|
Section 15(5)(e) of the Defamation Act 1996 (Barbados) |
‘the operator of a communication system by means of which a defamatorystatement is transmitted, or made available, by a person for whose acts theoperator is not responsible’ is not to be regarded as primarily responsible for thepublication of a defamatory statement.Moreover, the Barbados Act differs from the UK Act in that it puts the onus of proofon the plaintiff to show that the defendant knew or had reason to believe that thestatement was defamatory, and on the defendant to show that he had reasonablegrounds for believing the statement could be justified or otherwise excused. |
|
|
Defences |
In addition to the defences of unintentional defamation and innocentdissemination already considered, there are four major defences which can berelied upon in actions for defamation: justification; fair comment; absoluteprivilege; and qualified privilege. Each of these must now be considered in turn. |
|
|
There are THREE specialized defences to the Tort of Defamation: |
Truth Fair Comment Privilege – absolute and qualified |
|
|
Truth (justification) |
Truth (justification), is a complete defence to an action for defamation.In an action for Defamation, the Plaintiff is not required to prove that the statementmade by the Defendant is false in order to succeed because the law presumesthis. However if the plaintiff can show that the statement is true, then even if he wasactuated by ill-will or spite, he can plead the defence of truth. |
|
|
Alexander v North Eastern Rly Co. (1865) 122 All E.R. 1221 |
In order to succeed the plaintiff need not prove that the statement was true in itsentirety just that the statement was true in substance. Thus minor inaccuracies will notvitiate the defence, however this is a matter for the jury: NB: However, arguably where the allegation imputes the commission of a criminaloffence, the D may be required to prove the commission of the offence asstrictly as if putting forward a case for the prosecution of P. |
|
|
Section 20, Defamation Act 2013 |
Truth (Justification) |
|
|
Balance of Probabilities Definition: |
Burden of proof in civil trials. Also known as preponderance of evidence.The common distinction is made with the burden of truth in a criminal trial, which is beyond a reasonable doubt. In a civil trial, one party's case need only be more probable than the other. This is the kind of decision represented by the scales of justice. The courtweighs up the evidence and decides which version is most probably true.Thus, the actual truth may never be known. |
|
|
The standard of proof of truth is on a balance of probabilities |
The standard of proof of truth is on a balance of probabilities and D should notplead truth defence unless he/she has a good reason to believe the defencewill succeed, since if the Court finds that the statement is in fact NOT true andthus the defence fails, this will usually aggravate the damages against theDefendant. See Ramkhelawan v Motilal |
|
|
FAIR COMMENT |
The defence of fair comment is premised on the fundamental right to freedomof expression and the fact that in a modern society, honest criticism is arecognized corollary to the efficient working of any public institution or anexpected part of the life of private entities or individuals who make themselvesor their work, the object of public interest. As such the defence is available to allwho comment fairly on matters which may be said to be of legitimate concernto the public. Section 21, Defamation Act 2013 |
|
|
Requirements of Fair Comment |
*Matter commented on must be of public interest * Statement must be a comment or opinion based on observation orinference from facts *assertion of fact must be true and relevant *Statement must be based on true facts *Statement must be honestly made *Statement must not be acutated by malice |
|
|
Matter commented on must be of public interest |
The defence is wide in scope. Public interest has never been defined, but, inLondon Artists Ltd v. Littler [1969] 2 All ER 193 at 198 Lord Denning MR saidthat it is not to be confined within narrow limits. He continued: “ Whenever a matter is such as to affect people at large, so that they may belegitimately interested in , or concerned at, what is going o;, or what mayhappen to them or others; then it is a matter of public interest on whicheveryone is entitled to make fair comment.” |
|
|
Examples of public interest include: |
*affairs of the government, *the management or affairs of public institutions, * the administration of justice, * the conduct of public officials etc; *the presentation of a new play or * the sudden closure of a movie enjoying a successful run The justice system * The affairs of parliament *The management of public institutions such as hospitals, prisons, schools,universities, the Bank of Jamaica, ministries of government * The public conduct of those who hold office or seek office or positions ofpublic trust ie Ministers of Government, the Governor of the Bank ofJamaica, the Prime Minister, persons nominated to represent constituenciesin general elections |
|
|
Statement must be a comment or opinion based on observation or inferencefrom facts and not an assertion of facts |
For this reason the statement must appear on its face to be acomment or opinion or an inference/deduction/conclusion based onfacts and not a statement of fact itself. Christie vRobertson (1889) 19 N.S.W.L.R. 157 |
|
|
In determining whether a statement is a comment or assertion of fact |
theCourt is not allowed to look at extrinsic evidence outside of the wordsexpressly used by D or the implication that flows naturally therefrom If the statement is an assertion of fact, then D will have to rely on thedefence of truth. |
|
|
Statement must be based on true facts however |
A statement or comment not based on true facts shall not fail only because thedefendant fail to prove the truth of all relevant assertion, provided that suchassertion as are proved to be true are relevant. Forde v Shah [1990] 1TTLR 73 |
|
|
Statement must be honestly made |
“Honest” means “genuinely held”. Provided the D is expressing his genuineopinion or his “honest expression of the opinion which he held on the facts trulystated” then D will have a defence.It does not matter if the opinion may have been biased, prejudiced, irrational orexaggerated as stated in McQuire v Western Morning News Co. Ltd. |
|
|
Statement must not be acutated by malice |
Malice means some indirect, improper or evil motive. If P can show that D does notin fact hold the opinion which he has expressed then this is normally the strongestevidence of malice. Thomas v Bradbury Agnew & Co. Ltd. |
|
|
PRIVILEGE |
This defence recognizes that there are instances where freedom of expressionand communication without fear, is more important than the protection of aperson’s personal reputation. The privilege can be absolute or qualified. |
|
|
The common law provisions of absolute privilege |
Absolute privilege covers cases in which complete freedom ofcommunication is regarded of such paramount importance that no action fordefamation can be entertained at all. It is a complete defence and a persondefamed on an occasion of absolute privilege has no legal redress. |
|
|
Absolute Privilege |
absolute privilege protects persons from tort claims alleging defamation where the alleged defamatory statements were made by members of legislative assemblies while on the floor of the assembly or communications made in the context of judicial proceedings, as part of a trial. See the Schedule of the Defamation Act 2013 – Statutory Privilege |
|
|
Absolute privilege covers: |
1.Statements in Parliament including Reports, Papers and Proceedingsordered to be published by the Parliament 2.Statements made in the course of Judicial Proceedings and Reports ofJudicial proceedings 3.Communications between Officers of the State
|
|
|
Statements in Parliament including Reports, Papers and Proceedingsordered to be published by the Parliament |
Senate and House of Representatives (Powers and Privileges) Act S.3 No civil or criminal proceedings may be instituted against any member for words spoken before or written in any report to the House of which he is a member or to a committee thereof or any joint committee… |
|
|
Statements made in the course of Judicial Proceedings and Reports ofJudicial proceedings |
Whatever is stated, whether orally or in documentary form in judicialproceedings is absolutely privileged. The privilege is wide and its does notmatter who makes the statement, whether the judge, jury, the parties, theAttorneys or the witnesses and provided the statement by the witness ismade with reference to the subject matter of the proceedings, it matters nothow false or malicious the statement may be it will be protected. Bodden v Brandon However, the protection only covers statements relevant to the proceedings. |
|
|
Communications between Officers of the State |
communication between Officers of the State in the course of their official duty is absolutely privileged, since allowing “judicial inquiry into such matters tend to deprive officers of the state of their freedom of action in matters concerning the public weal.”
Chatterton v Secretary of State for India |
|
|
Qualified privilege |
for acts committed in the performance of a legal or moral duty and acts properly exercised and free from malice. Qualified privilege applies to situations where it is in the public interest thatpersons should be able to state what they honestly believe to be true withoutfear of incurring legal liability. |
|
|
some of the more popularoccasions of qualified privilege include: |
*Statements made in the performance of a legal, moral or social duty * Statements made to the proper authorities in order to obtain redress forgrievances *Statements made in self defence *Fair and accurate report of legislative or court proceedings |
|
|
Statements made in the performance of a legal, moral or social duty |
To qualify for this protection D must show that he is under a legal, moraland social duty to communicate the defamatory matter about P to a thirdparty AND that the third party has an interest in receiving the information. Employer/employee type relationships, or the reporting of a criminaloffence to the police or appropriate authorities are examples of situationswhere such a duty exists. Watt v Longsdon [1930] 1 K.B. 130 |
|
|
Statements made to the proper authorities in order to obtain redress forgrievances |
The grievance referred to here could be private – ie affecting only oneindividual or public ie affecting the general public and as such any memberof the public has an interest in bringing it to the attention of the authorities.For example: a complaint to the Minister of Health regarding specificbreaches at a public health facility. |
|
|
Statements made in self defence |
If in order to repel an attack on his character or reputation D makes adefamatory statement about P then this will be protected by qualifiedprivilege. |
|
|
Fair and accurate report of legislative or court proceedings |
In order to be protected the report must be fair and accurate. If the reportmakes statements which are not true then the defence is not available. |
