Defamation

• Types:

  • Libel and slander suitably cover all methods of communicating statements about a person
  • Protects A8 and their reputation - does not exclude any form of communication from amounting to defamation
• Defamatory statement:

  • Sim v stretch provides a broad definition of what amounts to defamation
  • If statement has potential to lower the claimant in the eyes of others
  • Explicit or innuendo (Monson v Tussauds)
  • Suitable allowances for Cs article 8 as there are multiple ways their reputation can be discrediteed
  • Objective test is applied. C cannot claim defamation soley based on how it makes them feel - must be negative impression on others (Breadth of A10 - Byrne)
• Defamatory statement:

  • S.11 defamation act 2013 only in exceptional triable by jury only in exception circumstances depending on what a judge believes would be the reaction of ordinary citizens, in tandem with views of society
  • Judges attempt to be objective, inevitably their subjective view of what 'right-minded' people would think will influence the decision (unconscious bias) - unclear whether A8/A10 promoted
• Refer to the claimant:

  • Satisfied if one ordinary reasonable person would conclude that it references to C
  • Public at large need not make this connection, emphasis protection of A8 as sets a low threshold - relatively easy to satisfy
  • Further reinforced that accidental references are actionable (Hulton v Jones)
• Refer to the claimant:

  • Some balance found when it comes to referring to a group
  • Breadth given to A10 when potentially defamatory statement is made by references a class of people that make it impossible single out any individuals (Knuptter)
• Statement must be published:

  • To publish, must be communicated to someone other than C - otherwise no affect
  • D free to make statement to C (A10)
  • Favour A8 where third party is involved
  • Exception where spouse (Wennhak - full freedom of expression)
  • Where publication cannot be foreseen (Huth) Ds A10 will not be restricted, where predictable, D can be sued (Theaker)
• Statement must be published:

  • Single publication rule now means that only one action can be perused against the same D within 1 year, even if comments are repeated - must be maritally different
  • Actionable if by a different D
  • Therefore Ds article 10 ECHR will be limited even if repeating comments
  • 'passive' does not count (Google)
• Serious harm:

  • To prevent vexatious claims and to protect Ds A10, action under defamation will only succeed where S.1 defamation act 2013 threshold of seriousness has been satisfied
  • Statement must be capable of causing or being likely to cause serious harm to the reputation (Monroe)
• Statement must be false:

  • Final requirement that the statement must be false means that even if a statement is hugely detrimental to C and would restrict A8 and not have the information be known publicly
  • If substantial/truth to Ds statement, A10 prioritised over embarrassment
• Truth:

  • Ds article 10 will be protected by S.2 Defamation Act 2013 if they can establish the accuracy of their statement
  • Further breadth conferred as provided the central thrust of their statement is true, peripheral inaccuracies will be overlooked (Vardy v Rooney)
  • D can still assert A10 in situations when information is false, but D has made this clear (Charleston & smith)
• Honest opinion:

  • Ds A10 will be protected by S.3 Defamation Act 2013 if they can establish that the statement consisted of an honest opinion
  • Defeated if the facts that existed at the time the statement was expressed would not provide the basis of such an opinion
  • Regulates usage of this defence to ensure that Cs A8 is only limited in certain circumstances
• Public opinion:

  • Ds A10 will be protected by S.4 defamation act 2013 if they can establish that the statement was in the public interest
  • Judge determine whether the issue will affect people at large so that they will be legitimately interested in (London artists)
  • Judge will consider all circumstances of the case including the severity of the allegation, source, verification, claimant (Reynolds)
• Absolute privilege:

  • Ds A10 will be protected by the common law if covered by absolute privilege
  • Huge scope to A10 - impossible to sue if a statement is made in parliament
  • Cs A8 is not forgotten as this defence cannot be relied upon by a person repeating such comments outside of the permitted circumstances
  • Ds A10 can be denied if they exceed boundaries, otherwise defence would be too generous
• Qualified privilege:

  • Ds A10 protected by the common law if covered by qualified privilege
  • Limits in place here as there needs ot be someone between the maker and recipient of the statement, therefore some duty or interest they have in sharing the information (Adam V ward)
  • Ds A10 has been given an additional boost by S.6 defamation act 2013 as to offer protection to statements made for the purpose of peer reviewed scientific journals
  • Prevent stifling of legitimate scientifc debate
• Volenti:

  • Ds A10 protected by common law if D can show that C consented to the publication
  • Therefore a claimant cannot secretly agree with a newspaper to the printing of a story and then be publicly outraged by it and try and sue to protect their A8
• Innocent publication:

  • Ds A10 protected by S.1 Defamation act 1996 if they had no editorial control over the material
  • Printers, sellers, distributors will be protected from unfair actions against them
• Offer of amends:

  • Not a defence, S.2 Defamation act 1996 allows D to pre-empt legal proceedings and to offer an apology and pay compensation
  • Must be Ds first action, rather than a backup after a failed defence
  • Cannot continue to trial in order to publicly protect A8
  • C rejects, mitigation on part of D
• Trial without a jury:

  • S.11 Defamation act 2013 confirms defamation trials are conducted without a jury
  • Removed due to awarding excessive damages
  • Removal of juries is understandable from the 'damages' perspective, argued loss to both A8 and A10
  • Sure to be best judge of if Cs rep has been tarnished
  • Now judges subjective view (Laurence fox)