#14678 - Defamation - GDL Tort Law

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Key principles:

• Law on defamation protects against injury to reputation- it doesn’t focus on the thing itself

• Human rights in play – Art 10 ECHR (freedom of expression); Art 8 ECHR (right to private home life)

• Distinction between libel (generally written, and therefore seen as permanent) and slander (generally spoken, and therefore seen as temporary, which requires actual damage to have occurred before damages can be sought)

  • Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd

Defamation in relation to a statement in a film

Held: libel, as it was a permanent form of expression

• Certain parties cannot sue in defamation: i.e. governmental bodies, political parties, and the estates of the dead.

The Defamation Act

This area of the law was recently reformed by the Defamation Act 2013 (in force since 1 January 2014):

• The Defamation Act 2013 removes the presumption of jury trial for defamation cases with the theory that trials would be quicker and therefore cheaper.

  • However, there weren’t that many cases that went to trial under the old law because a judge would view the case before submitting it to a jury

• Upholds the distinction between libel & slander

Slander

Requirement of special damage

Proof of actual injury required as a control limit – slander is temporary unlike published defamatory statements which are permanent

Exceptional cases of slander actionable without proof of injury:

• Imputation of criminal conduct: specifically of a crime that is punishable by imprisonment

Gray v Jones

The phrase “you are a convicted person; I won’t have you here” overheard by another.

Held: no need to prove actual damage with an allegation like that if the defamatory statement was of criminal conduct punishable by imprisonment

• Imputation of unfitness in business – most frequently invoked exception

Defamation Act 1952, s.2 “In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

• Imputation of certain contagious diseases (abolished)

  • Bloodworth v Gray

Allegation “he’s got that damn pox”

Held: gave compensation for defamation despite the fact there was no proof of special damage

• Imputation of infidelity against women (abolished)

Slander of Women Act 1891 This section provides that in an action for slander ("words spoken and published"), brought by a female plaintiff in respect of words that impute unchastity or adultery to her, it is not necessary for her to allege or prove that she has suffered special damage.

Defamation

Defamation involves:

1. A defamatory statement

2. Identification of the claimant

3. Publication

If C shows each of these limbs, then the burden shifts to D to establish a defence e.g. that the statement was true

Establishing a defamatory statement

When is a statement defamatory?

Defamation is concerned with defending people’s reputations; so a defamatory statement is one which lowers the claimant’s reputation. It is not concerned with upsetting the claimant.

• “tends to lower the claimant’s reputation in the estimation of right-minded people in society” Sim v Stretch

Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd

Film depicting a russian princess who had been raped/seduced by Rasputin

Held: found to be libellous

• A defamatory statement is one which “causes him to be shunned or avoided by people”

Monson v Tussauds Ltd

Monson was infamous for a while; having been tried in Scotland for murder he was found that the charge hadn’t been proven. Madame Tussauds put him in one of their wax museums, in amidst a figure of Napoleon & someone who had committed suicide to avoid arrest & a murderer & a missing murderer. He felt guilty by association

Held: found to be libellous

Berkoff v Burchill

Burchill said Berkoff was ‘hideously ugly’

Held: (CA) capable of being interpreted as defamatory. A word may be defamatory if it causes right minded members of society to ridicule the claimant

Charleston v News Group Newspapers Ltd

Two actors who portrayed Madge & Harold in Neighbours were transposed onto a pornographic computer game. A newspaper ran this with the headline ‘what’s Harold up to with our Madge?’ but didn’t explain the game until the main body

Held: (HL) the story as a whole must be construed – the question is how an ordinary reasonable fair-minded reader would interpret the story & the average person would read the whole thing

• Lord Bridge; the claimant may be right that not everyone would read the whole story, but that they had to judge the writing/images as a whole, and judge by an objective standard

Byrne v Deane

Allegation that a defamatory statement had been posted to a golf club – stating that C had informed the police that the club were illegally using gambling machines

Held: it must be asked whether a right-minded member of society would think less of C, or shun or ridicule. Applying this, though his friends may have thought badly of him for grassing up the club, a right-minded member of society wouldn’t think badly of him for informing the police of illegal activity

Now, however, as we no longer have a presumption of jury trial, judges decide how like-minded members of society would interpret the allegation.

Threshold requirement of seriousness

Thornton v Telegraph Media Group Ltd

Held: claims must pass a threshold of seriousness

S.1 Defamation Act 2013:

(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2)For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

Cooke v MGN Ltd

Article about C that they objected to. A week after the article there was an apology by the newspaper.

Held: (HC) when a court is looking at whether a statement is likely to cause serious harm, it can take into account any apology or correction made by D prior to the case coming to court. Bearing this in mind on the facts, the article was not likely to cause serious harm as it had become hard to find & the apology was readily available. Ordinary sense of the term serious harm should be used.

Ames v The Spamhaus Project Ltd

Held: S.1 2013 Act doesn’t abolish the existing principles to do with process (one of these being that a claim can be struck out if C has taken too long in bringing the claim)

Lachaux v Independent Print Ltd

Held: C has to show that they have already suffered serious harm or probably will suffer serious harm to their reputation

Innuendo

• False (or popular) innuendo: where there is a hidden meaning that can be understood by anyone without further knowledge

Lewis v Daily Telegraph Ltd

C alleged that he was the V of false innuendo - a newspaper article said ‘the fraud squad were investigating a company’. The argument from the company was that was representing them as fraudulent

Held: a reasonable reader would not assume that this was a statement saying the company were fraudulent

• True (or legal) innuendo: where there is a hidden meaning which is only obvious to people with special knowledge or other evidence

Cassidy v Daily Mirror Newspapers Ltd

Cassidy was married to Mr MC. The newspaper printed a photo of C’s husband & Miss X with the caption - ‘Mr MC the racehorse owner and Miss X whose engagement has been announced’. C challenged this as defamatory because people would assume that they weren’t really married & living in sin with her

Held: defamatory, because people with special knowledge would think that she and Mr MC were not really married, and therefore living in sin

Tolley v J.S. Fry & Sons Ltd

Tolley sued the company for putting him in an ad

Held: capable of being defamatory, because people could assume he had been paid for the ad and that this was a breach of the amateur golfing rules

Baturina v Times Newspapers

Held: D can be liable for an innuendo even if they were not aware they were making such i.e. if special knowledge is required for an innuendo to have occurred

Identification of the claimant

Byrne v Deane

Statement concerning C with ‘clever’ pun “he who gave the game away, should byrnn in hell…”

Held: reasonable person would assume this referred to C

The defamer need not intend to refer to the claimant, it is judged by an objective standard:

E. Hulton & Co v Jones

Newspaper published some stories about a known character Artemis Jones (a name they alleged was a random choice). As it happened there was a barrister of the same name who alleged that this referred to him. The barrister had actually worked for them previously.

Held: if a reasonable reader could assume that it was about C, then it refers to him

Newstead v London Express Newspaper Ltd

Newspaper posted a report of a trial for bigamy under the heading ‘Newstead, 30 yo, Camberwell man’. C was also a 30yo man named Newstead in Camberwell, and alleged that the statement referred to him

Held: the evidence would justify a jury finding that reasonable people would have understood the newspaper’s words as referring to C

Has this gone too far - a disproportionate restriction on freedom of information?

O’Shea v MGN Ltd [2001] EMLR 40

An ad for a porn website used a model which looked like C.

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