#3073 - Defamation Liability - GDL Tort Law

Introduction + General Principles

- Defamation: to protect c. from untrue statements that harm his reputation.

• (cf. malicious falsehood: untrue statement that does not damage reputation but does harm).

• balance between 2 interests:

  • 1. public interest: freedom of expression.

    • large variety of defences: to protect d’s freedom of expression.

  • 2. private interest: maintaining reputation.

• + Human Rights Act 1998: Art 10 ECHR – guarantees freedom of expression vs. Art 8 ECHR – right to private + family life.

- Definitions:

• [Winfield]: publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him.

• Sim v Stretch [1936]: [Ld Atkin]: statement which tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular to cause him to be regarded with feelings hatred, contempt, ridicule, fear and disesteem.

2 Torts: Libel + Slander

- Libel: statement in some permanent form – e.g. pictures, printed words etc. actionable per se.

• radio + TV – s166 + s201 Broadcasting Act 1990.

• public plays – s4 Theatres Act 1968.

• waxworks – Monson v Madame Tussaud’s Ltd [1894]: waxwork of c. placed in chamber of horrors; c. had been tried for murder but acquitted [Ropes LJ]: statues, caricatures, effigies, chalk marks, signs, pictures also.

• films – Youssoupoff v MGM Pictures Ltd [1934]: film suggested c. had been raped by Rasputin

• internet – Godfrey v Demon Internet [1994].

  • inc. social networking (even if semi-private) – Applause Stores Productions Ltd v Raphael [2008].

- Slander: statement in temporary/transitory form actionable only with proof of special damages (but 4 exceptions).

• transient forms: e.g. spoken word, gestures, mimes, impressions, noises.

  • debate: audio stored on CD, tape, DVD [Winfield]: libel; vs. [Street]: slander (libel inherently visual).

• 4 exceptions – slander actionable per se if:

  • 1. imputation of imprisonable offence: Gray v Jones [1939]; Webb v Beavan [1883].

  • 2. imputation of having contagious/unsociable disease: Bloodworth v Gray [1844].

  • 3. imputation of unchasity of adultery in female: s1 Slander of Women Act 1891.

    • Kerr v Kennedy [1942]: inc. suggestion that c. is (sexually active) lesbian.

  • 4. imputation of unfitness for trade, profession or appointment: s2 Defamation Act 1952.

    • e.g. Jones v Jones [1916]; Hopwood v Muirson [1945]; McManus v Beckham [2002]: Victoria Beckham told customers in shop that David Beckham’s autograph for sale fake.

Locus Standi: Who Can Sue?

- Natural + legal persons can sue.

• natural persons: but not dead – if c. dies before trial, action dies with him.

• corporate bodies: where statement defames corporate reputation.

  • McDonalds Corporation v Steel [1999]: McDonalds succeeded in libel suit vs. environmentalists.

    • (N.B. Steel v UK [2005]: ECHR – UK infringed ECHR by not providing ds. with legal aid, but confirmed that corporation had locus standi).

      - Public authorities may NOT sue – Derbyshire CC v Times Newspapers [1993; HoL].

• rationale: protect political speech – threat of civil action would inhibit freedom of speech.

• inc. political parties – Goldsmith v Bhoyrul [1997].

• inc. trade unions: unincorporated bodies.

• N.B. individuals within govt. can sue in own right – for remarks about personal, not professional lives.

  • BUT: ECtHR: politicians must expect greater criticism + scrutiny – Lingens v Austria [1986].

  • public interest defence usually prevails: e.g. Reynolds [1999].

    Elements of Defamation

    - Claimant must establish 3 elements on balance of probabilities:

• 1. statement was defamatory: a. capable of being defamatory; b. actually defamatory.

• 2. statement referred to the claimant.

• 3. statement was published (communicated) to 3^rd party.

  - Other considerations:

• 4. slander not actionable per se: special damage must be proved.

• 5. defences.

1. Defamatory Statement

- Test: do words in ordinary + natural meaning defame the claimant? – 2 questions:

• 1. what is meaning of words used?

  • ‘sting’/bane: defamatory meaning c. wishes to rely upon.

  • antidote: some fact that counters the ‘sting’.

• 2. is that meaning defamatory?

- Who decides?

• judge: det. whether statement capable of bearing suggested meaning + defaming claimant – s7 Defamation Act.

• jury: det. actual meaning of words + whether it is defamatory.

  • must establish standard: right thinking members of society – Byrne v Deane [1937].

Meaning of the Words

- 1. Ordinary + natural meaning.

• Harvey v French [1832]: [Ld Tenterden CJ]: ‘in the sense in which ordinary persons … would understand them’.

• Lewis v Daily Telegraph [1963]: [Devlin LJ]: what is the meaning the words convey to the ordinary man?

- 2. Innuendo: ordinary + natural meaning not defamatory but statement defamatory because of secondary meaning.

• a. false (popular) innuendo: extended meaning, e.g. sarcasm, puns, colloquialisms, slang.

  • Allsop v Church of England Newspaper Ltd [1972]: d. referred to c. (BBC host) as having ‘preoccupation with the bent’; c. claimed this meant ‘sexually perverted’, d. claimed it meant ‘bizzare’.

  • Plumb v Jeyes Sanitary Compounds [1937]: policeman sued d. for using photograph of him to advertise foot bath defamatory: implied feet so disgusting that ordinary soap not enough.

• b. true (legal) innuendo: defamatory meaning understood by persons with additional extrinsic knowledge.

  • c. must prove at least 1 of audience actually possessed required extrinsic knowledge.

  • Tolley v JS Fry & Sons Ltd [1931]: d. published cartoon of c. (amateur golfer) to advertise chocolate defamatory: suggested c. had compromised amateur status by accepting payment to appear in advert (meaning only derived by those who knew c. was amateur golfer).

  • Cassidy v Daily Mirror [1929]: d. printed picture of c’s husband with young woman described as engaged defamatory: implied c. mistress, not wife.

- Must consider meaning in context.

• Charleston v News Group Newspapers Ltd [1995]: [Ld Bridge]: must consider context in which words used + mode of publication – c. cannot rely on isolated passage taken out of context.

  • facts: d. published CG image of 2 actors engaged in sexual intercourse; captions + text made clear that images fake not defamatory.

• Norman v Future Publishing Ltd [1998]: article attributing ungrammatical joke to operatic diva; but article generally sympathetic + favourable not defamatory.

Whether the Words Are Defamatory

- 3 definitions: not mutually exclusive.

• 1. Sim v Stretch: material that tends to lower c. in estimation of right-thinking members of society – objective.

  • Byrne v Deane [1937]: accusation that c. informed police about illegal gambling not defamatory: right-thinking people would not think less of law-abiding citizen.

  • Williams v MGN [2009]: [Eady J]: c. with serious criminal record no defamation: no remaining reputation capable of protection.

• 2. Youssoupoff v MGM: material that would tend to lead to c. being shunned or avoided.

• 3. Berkoff v Burchill [1996]: material that would tend to expose c. to hatred, ridicule or contempt.

- Degree of seriousness required? – Thornton v Telegraph Media Group [2010]: [Tugendhat J].

- Examples of defamatory statements.

• Youssoupoff v MGM Pictures Ltd [1934]: allegation that c. had been raped.

• Liberace v Daily Mirror [1959]: allegation of homosexuality.

  • cf. today: poss. not defamatory – homosexuals not lowered in estimation of ‘right-thinking people’.

• Cornwell v Myskow [1989]: c. described as having ‘big bum’ + bad stage presence by Daily Mail journalist.

• Roach v Newsgroup Newspapers Ltd [1992]: c. described as ‘boring’.

• Berkhoff v Burchill [1996]: allegation that actor/director hideously ugly.

• Cruise & Kidman v Express Newspapers [1999]: allegation of deceiving public as to sexuality.

• Hudson v American News Media [2006]: allegation of having eating disorder.

- Vulgar abuse NOT defamatory statement – Parkins v Scott [1862].

• circs. relevant: abuse in course of quarrelling not defamatory – listeners understand not intended factually.

• but: fine line between vulgar abuse + defamation – Berkhoff v Burchill.

2. Statement Refers to Claimant

- C. must prove statement identified them – publisher’s intent irrelevant (need precision):

• initials, fictitious names etc. – Hulton v Jones [1910]: newspaper said fictitious ‘Artemus Jones’ conducting affair; real Artemus Jones (not from Peckham or a churchwarden) sued defamatory: because several people thought statement about him.

• even if statement true about another – Newstead v London Express Newspaper Ltd [1940]: newspaper reported Harold Newstead of Camberwell bigamist; another Harold Newstead from same town sued.

• but: d. may make offer of amends if unintentional – ss2-4 Defamation Act 1996.

- Identification: by ordinary/natural meaning or innuendo.

• statement need not contain c’s name if refers to c. – Cassidy v Daily Mirror: statement that c’s husband engaged defamatory because c. assumed to be mistress.

• false innuendo: highly unusual for reference to c.

• true innuendo: quite common.

- Reference to class or group – usually NOT actionable by group or members.

• general rule: member of defamed class/group cannot sue.

  • Eastwood v Holmes [1858]: [Willes J]; ‘all lawyers of thieves’ no particular lawyer can sue unless identified.

  • Knupffer v London Express Newspaper [1944]: statement defaming a pro-German Russian émigré group leader of group of 24 in Britain unable to sue.

• exception: if c. identifiable as member of class + words ordinarily...