defamation

• Statutory reform: Defamation Act 2013


  -limits who can sue

  -codifies common law defences

  -extends available defences

  -reduces 'libel tourism'

  -trial by jury restricted

  BUT does not replace previous common law entirely
• Who can sue for defamation/libel?

  -Companies (only if statement causes serious financial loss)

  -Non-UK domiciled (only if most appropriate place to bring a claim)
• Who cannot sue for defamation/libel?

  -Dead people

  -Government bodies

  -Political parties
• Definition of defamation


  Publication of a statement by the defendant which is defamatory of the claimant
• Definition of slander


  Defamation in temporary (transient) form
• Definition of libel:


  Defamation in a permanent form
• Byrne v Deane (1937)

  -objective test

  -right thinking people meaning ordinary 'reasonable' people
• Berkoff v Burchill


  Hurt feelings doesn't amount to defamation
• Defences to defamation: 


  -truth

  -honest opinion

  -privilege

  -publication on a matter of public interest

  -reportage

  -offer of amends

  -innocent dissemination
• Defamation Act 2013:

  • s1(1) states serious harm is necessary for a claim
  • s1(2) defines that in company cases, it must be serious financial loss (South Hetton Coal Co v North-Eastern News Association)
• False/popular innuendo:

  • reader merely needs to read between the lines to discover the meaning of the statement
  • Lewis v Daily Telegraph (the reasonable person)
• True/legal innuendo:

  • not defamatory on face value but can be on the facts and circumstances known to readers/listeners
  • Fullam v Newcastle Chronicle & Journal Ltd
• Monson v Tussauds Ltd

  • d acquitted of murder yet his wax figure was placed in the 'chamber of horrors' holding a gun
  • held to be a defamatory innuendo
• Sim v Stretch

  • in order for a statement to be defamatory it must cause 'right-thinking members of society' to think less of c
• Koutsogiannis v The Random House Group Ltd

  • statement must be read as a whole in context to determine if it is defamatory
• Webb v Jones

  • a statement must be 'substantially published' and cause 'serious harm' to be defamatory
• publication includes:

  • websites (Godfrey v Demon Internet)
  • tweets (Monroe v Hopkins)
  • blogs (Cruddas v Adams)
  • Facebook posts (Stocker v Stocker)
• Theaker v Richardson

  • test of reasonable foreseeability
  • is it reasonably foreseeable that someone else would read it?
• Osborn v Thomas Boulter & Son

  • d communicated a defamatory matter to a typist, held to not be defamation as privilege was not lost
• Derbyshire County Council v Times Newspaper Ltd

  • democratically elected governmental bodies cannot sue others for defamation to protect freedom of expression
• McAlpine v Bercow

  • politicians and parliamentarians can still bring defamation claims, just not government bodies
• Duke of Brunswick v Harmer

  • held that a new cause of action arises every time a defamatory statement is republished
• Stocker v Stocker

  • held that the dictionary definition of a statement is how someone on social media would interpret it
• Spicer v MPC

  • held that readers are aware that headlines are inconsistent with articles
• Morgan v Odhams Press Ltd

  • would a reasonable person believe that statement is referring to c? whilst having knowledge of the circumstances
• Hulton & Co v Jones

  • d can also be liable when they intended their statement as fiction
  • reaffirmed in Newstead v London Express Newspaper Ltd
  • BUT not every unintentional reference will be grounds for a claim; O'Shea v MGN Ltd
• Knupffer v London Express Newspaper Ltd

  • 'a class cannot be defamed as a class'
• Hijazi v Yaxley-Lennon

  • demonstrated that compensatory award may be supplemented by aggravated or exemplary damages
• truth defence to defamation:

  • s2(1)
  • applies to statements of fact, not opinion
  • must be 'substantially true', Chase v News Group Newspapers Ltd
• Depp II v News Group Newspapers Ltd

  • d published articles detailing that c assaulted his ex-wife, it was proven that 12/14 alleged assault occurred, thus it was 'substantially true'
• privilege defence to defamation:

  • allows people to speak and publish in circumstance where it is important people should be able to speak freely
• absolute privilege:

  • covers situations where it is crucial people speak with complete freedom, even if it is outrageous or malicious
  • e.g parliamentary and court proceedings
• qualified privilege:

  • only protects when statements are made honestly and without malice
  • reciprocity is essential (Adam v Ward)
  • e.g a reference from a prospective employee to a potential employer (Spring v Guardian Assurance)
• public interest defence:

  • found in Reynolds v Times Newspapers and affirmed in Flood v Times Newspapers
• Economou v de Freitas

  • 'contributor immunity'; not held to the same standard as professional journalists
  • reaffirmed the importance of Reynolds when assessing the reasonableness of d's beliefs
• Banks v Cadwalladr

  • d had reasonable belief that publishing the statement was in the publics interest
• Butt v SoS

  • relevant test for honest opinion is 'how the statement would strike the ordinary reader'
• British Chiropractic Association v Singh

  • highlights the difficulties of distinguishing fact and opinion
• Cairns v Modi

  • offer of amends must be made before the service of a defence to the claim
• Monroe v Hopkins

  • example of a failure to take up an offer of amends