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DEFAMATION

Rationale The tort of defamation is aimed at the protection of reputation The Debate The balance to be struck between the protection of reputation and the infringement of the freedom of speech. The Problem The involvement of judges and jury results in unpredictable decision making and massive damages being awarded. Types: Libel Slander

Issues Problem-Type Question 1. To determine whether a statement is libel or slander Libel: Defamatory in a permanent form Monson v. Tussauds 1!"#$ 1 %& '(1 )ctionable per se Slander: Defamatory in a transient form *nly actionable upon proof of actual damage Difficulty in deciding whether statement is libel or slander Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd. +1",#- ./ TL0 .!1 1. 2ho can sue3 Law Reform (Miscellaneous Provisions) Act !"# 0ight to sue does not survive for the benefit of the estate )ny individual member of an organ of government can sue

Local authority cannot sue $er%ys&ire '' v. Times (ewspaper Ltd. 1"",$ )4 .,# +Lord 5eith*verruled )oc*ner Re+is v. ,$'

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The case for the plaintiff 6 7 must prove , things +a+b+cthe words 8 statement were defamatory they referred to the 7 they were published by the defendant

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Defences Damages

Identifying a defamatory statement 1. +a9n determining whether a statement is defamatory: 2hether the statement is about a person:s reputation; so as to lower the claimant in the estimation of right thinking members of society in general +objective test-im v. -tretc& +1",'- .1 TL0 ''" +b*r that which would tend to cause the claimant to be shunned or avoided +need not be one which normally discredits the 7+c9f it e<poses the 7 to ridicule or contempt in the absence of an imputation of conduct )er*off v. )urc&ill 1""'$ # )ll =0 1//! The need therefore is to look at the meaning of the statement and not the intention of the maker of the statement 'assidy v. $aily Mirror (ewspapers Ltd. 1"1"$ 1 5& ,,1 Thus; the law on defamation focuses on what the majority of the people actually think of the claimant which has a direct bearing on his reputation Tolley v. .ry 1",/$ 1 5& #'( Gillic* v. ))' 2ords therefore must be interpreted in their conte<t which is the natural and ordinary meaning and words may be defamatory when combined with e<trinsic facts known to those to whom the words were published. 9t is important at this stage; when assessing whether a statement is defamatory to distinguish defamatory words from an innuendo +=ssentially an innuendo means that the words or statement have a hidden meaning which is defamatoryTrue Innuendo

> ?eed for additional evidence Tolley v. .ry 1",/$ 1 5& #'( 'assidy v. $aily Mirror (ewspapers Ltd. 1"1"$ 1 5& ,,1 False Innuendo > ?o need for additional evidence to be adduced Lewis v. $aily Tele+rap& 1"'#$ )4 1,# Allsop v. '&urc& of /n+land (ewspapers '&arleston v. (ews Group (ewspapers Ltd 1"".$ 1 )4 '. +@*L1. 9t is immaterial whether one believed the words to be true nor is it relevant that the defendant intended to refer to the 7; i.e. if the words are true of someone else it does not prevent it from being defamatory of the claimant if the statement is understood to be referring to the 7. Mor+an v. 0d&ams Press 1"(1$ 1 2L0 11," +@*L1art v. (ewspaper Pu%lis&in+ +a2hat is the position where the D uses a name for a character who is supposed to be fictitious and a real person with the same name claims to have been defamed3 1ulton 2 'o. v. 3ones 1"1/$ )4 1/ s.4 of t&e $efamation Act !!5: provides an Aoffer to make amendsB. +b1 people with the same name (ewstead v. London /6press (ewspapers Ltd. 1"#/$ 1 5& ,(( s.4 of t&e $efamation Act !!5 +c ,. +a4lass defamation 7nuppfer v. London /6press (ewspapers Ltd. 1"##$ )4 11'+@*LCeneral 0ule: no individual entitled to sue if defamation referable to class

*nly actionable is the words referred to a particular 7 2here reference is in respect to a small group; then the group is entitled to sue 7ublication 9nvolves the element that the defamatory matter must have been communicated to some other person other than the 7 T&ea*er v. Ric&ardson 1"'1$ 1 2L0 1.1 )yrne v. $eane 1",($ 1 5& !1!

+b-

0epetition

*riginal publisher 8 maker of the statement may be liable irrespective of repetition by a third party. 8i9etelly v. Mudie:s -elect Li%rary Ltd. 1"//$ 1 %& 1(/ =very repetition of defamatory words is a fresh publication and therefore creates a fresh cause of action against each successive publisher. Secondary publishers +distributors- would ?*T be liable is they could show the following: +i+ii+iiithey were innocent of any knowledge of the libel contained in the work there was no reason for them to be aware that the work contained such libel they were not negligent in failing to know that the work contained such libellous material Defences 1. Distributor:s Defence s. of t&e $efamation Act !!5 Godfrey v. $emon ;nternet Ltd. 1//1$ %& 1/1 1. ?ovus )ctus 9nterveniens -lipper v. ))' 1""1$ 1 %& 1!, ,. Dustification s. 4 < # of t&e $efamation Act !!5 Definition: *nce claimant establishes defamation they are presumed to be untrue. The D has a complete defence to prove that the statement is true 6 this defence applies even where D acted with malice. The D:s honest and reasonable belief that the statement was true is not sufficient is he cannot prove that it was true. $er%ys&ire '&ief 'onsta%le v. Times (ewspapers Ltd. 1""1$ %& ((/ 9t is not necessary to prove the literal truth of a statement if the material facts are proved to be true in substance. s. = of t&e $efamation Act !!5 2here a statement contains 1 or more distinct charges against the claimant. ) defence of justification will not fail by reason only that the truth of every charge is not proved is the words not proved to be true do not materially injure the claimant:s reputation having regard to the truth of the remaining charges. 9f the statement carries an innuendo; the D must prove the truth of the innuendo Gro%%elaar v. (ews Group (ewspapers Ltd. 1//1$ =24) 4iv ,,

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7rivilege Absolute Privilege 7rovides that the D is protected no matter how dishonest or malicious his motive. Qualified Privilege Defence will be defeated if the claimant can prove that the D acted with malice or that he misused the occasion for an improper purpose Reynolds v. Times (ewspaper Ltd. 1//1$ 1 )4 11( -prin+ v. Guardian Assurance plc 1"".$ 1 )4 1"' Loutc&ans*y v. Times (ewspapers Ltd. ((o.4) 1//1$ 1 )ll =0 '.1 Reynolds

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The rejection of the @*Ls of any special defence for political speech The elasticity of the common law The circumstances to be taken into account in deciding whether privilege applied The relationship between the common law and the reEuirements of human rights Post Reynolds ases

Tolstoy Miloslavs*y v. ,7 >ainwri+&t v. 1ome 0ffice 1//1$ =24) 4iv 1/!1 +Fummery LDA v. ) plc and anot&er +Lord 2oolf$ou+las v. 1ello? Ltd 1//1$ 1 2L0 ""1 T&ea*ston v. Mirror Group (ewspapers (aomi 'amp%ell v. MG( Statements in pursuance of a duty Reynolds v. Times (ewspaper Ltd. 1//1$ 1 )4 11( -prin+ v. Guardian Assurance plc 1"".$ 1 )4 1"' , elements must be proved:

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+a-

There must be a legal 8 moral 8 social duty to the general public to publish the material in Euestion. This is the duty test.

+b-

9t must also be established that the general public had a corresponding interest in receiving the information. This is the interest test.

+c-

The D will have to show that the nature; status and source of the material and circumstances of its publication were such as to warrant the protection of privilege without malice. This is the circumstantial test.

?ote the attitude of the courts in practice in relation to other professional immunities after the coming into force of the 1uman Ri+&ts Act !!@. +Art. @ and Art. A of the /'1R-

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Hair 4omment =lements: )pply in relation to opinions The defamatory imputation must take the form of a comment and be based on facts which are true if the comment amounts to a statement of facts; then it must be proven to be true or privileged. The distinction between fact and comment is not always easy to draw. Telni*off v. Matusevitc& 1""1$ 1 )4 ,#, *n matters of public interest London Artists Ltd. v. Littler 1"'"$ 1 %& ,(. 9t must be fair

Damages -utcliffe v. Pressdram 1""1$ 1 %& 1., s.@ of t&e 'L-A !!A Rant9en v. Mirror Group (ewspapers 1""#$ %& '(/ 3o&n v. Mirror Group (ewspapers 1""($ %& .!'