#2352 - Requirements For Defamation - Tort Law

Requirements for Defamation

• Is the statement defamatory?

  • May be either express of veiled (innuendo)

    • Express statement = “C works for the Mafia”

    • Innuendo

      • True (legal)

        • One where attack is hidden without knowledge of special terms used

          • Which C must show the receivers of the statement would be able to interpret correctly.

          • E.g. A publishes that “C works for the Family Business”

            • When C’s father has been found guilty of organised crime

              • On its own, would not be an attack

              • With the special knowledge = legal innuendo and potential defamation.

      • Cassidy v Daily Mirror Newspaper Ltd [1929]:

        • X announced his engagement to Z, which was published in a newspaper (D). Unbeknown to D, A was actually married to X, and as such her acquaintances’ estimations of her lowered.

        • Scrutton LJ:

          • If D publishes words reasonably capable of being read as relating directly / indirectly to A

            • And to those who know extraneous facts about A the words are capable of a defamatory meaning,

              • D must take the consequences of the defamatory inferences.

      • False (popular)

        • Where a reasonable person would infer the defamatory statement from what is published

          • E.g. A publishes that “C works for the Family business”

            • Which C then proves is a well known slang term for the mafia

              • Thus, ordinary person would draw inference that C works for mafia without any special knowledge beyond that of well-known slang.

        • Lewis v Daily Telegraph [1964]:

        • D published two reports which alleged the police were inquiring into C’s business. C alleged that people would draw the conclusion that C was being investigated for fraud.

          • Lord Reid:

            • Sometimes the libellous sting is contained in the words themselves

              • On other occasions the sting is not so much in the words themselves

                • But in what the ordinary person will infer from them.

            • General principle =

              • Would ordinary reasonable man understand words of to expose C to hatred/contempt/ridicule?

          • Lord Hodson:

            • There is one cause of action for the ordinary meaning of words

              • And another for “true” innuendo that depends on extraneous facts to give defamatory meanings to words

                • But not another cause of action for “false innuendo”.

  • But must harm C’s reputation

    • Definition of harm to reputation

      • Scrutton LJ in Tournier v National Provincial Bank:

        • Where words in mind of a reasonable man calculated to expose C to hatred, ridicule or contempt.

      • Youssoupoff v. MGM Pictures Ltd:

        • Scrutton LJ

          • C has right to have his reputation unaffected by false discrediting allegations

            • If false allegations made without lawful excuse causing damage

              • he has a right of action

        • Slesser LJ:

          • Defamatory not only for hate and ridicule

            • But also if C thereby becomes shunned and avoided without any moral discredit on C.

      • Lord Atkin in Sim v Stretch:

        • Words that tend to lower the plaintiff in the estimation of right-thinking members of society generally

        • Giliker: Thus, fact your reputation is lowered in the eyes of your mates who might not be held to this same standard is irrelevant

          • E.g. being falsely accused of reporting illegal betting machines to police, who then remove them

            • Might lower your reputation in the eyes of those in the golf club who like to use them

              • But not reasonable people who would consider this accusation to be a compliment.

      • Berkoff v Burchill [1996]:

      • D wrote an article where she humorously expressed the view that Berkoff, a director, was hideously ugly. Berkoff sued.

        • Niell LJ (maj)

          • Reputation = all aspects of C’s standing in the community.

            • Bad manners and comments that cause hurt and annoyance are not the same as attacks on character

              • But you have to look at context as a whole to see if they damage C’s reputation.

        • Millet LJ (dis)

          • A decision that it is an actionable wrong to poke fun would be an unwarranted restriction on free speech.

            • People should be allowed to do this without fear of litigation.

          • Insults may ridicule a man

            • But they don’t expose him to ridicule

              • And only in the latter case should defamation lie.

  • Giliker: Courts will generally take a contextual view when deciding whether a statement is defamatory or not

    • While taking the approach of a reasonable person in that context

      • Thus facts of the case are very important.

• Does the statement refer to C?

  • Is a simple matter where C is named. But where C isn’t named....

  • Morgan v Oldham Press [1971]:

    • Lord Morris

      • Where C is not named,

        • the test which decides whether the words used refer to him

          • is the question whether the words are such as would reasonably lead persons acquainted with C

            • to believe that he was the person referred to

    • Lord Reid

      • CoA wanted an extra requirement – that must be “initials, some asterisk, some reference to him” in article in order to identify C

        • BUT Making a reference to Y

          • Could lead to defamation on Z, even though he’s not actually identified or referenced

            • And it would be unfair in many cases to deny Z an action

    • Lord Guest (dis)

      • Should not be sufficient for the reader to say “I wonder if the article refers to C”

        • Nor that a reasonable person believes that the words refer to the plaintiff.

          • The ordinary reader must have rational grounds for his belief that the words refer to the plaintiff.

  • Cassidy v Daily Mirror Newspapers [1929]:

    • Scrutton LJ

      • One must consider not what the words are

        • But would conclusions could be reasonably drawn from it

      • Alleged libel doesn’t mention H

        • But words published about H may then be defamatory to P

        • E.g. “H has taken to drink, it is hereditary”

          • Although doesn’t mention H’s parents

            • To persons who know H’s parents it is potentially defamatory.

    • Giliker: Thus, although specialists might be able to draw the conclusion that C is not referred to

      • If an ordinary person would only scan the article

        • And this scan would lead them to believe C was referred to

          • This latter approach would be taken by the court when assessing this requirement.

  • Intent is irrelevant

    • Hulton & Co v Jones [1910]:

      • D published article depicting fictional account of Artermus Jones, churchwarden from Peckham, who did number of antics at a motor festival. Unfortunately, was an Artermus Jones who was none of these things, but did actually exist in the area.

        • Held HoL evidence for jury to conclude that reasonable person would think article referred to Jones

          • And as such, was irrelevant that D had no intention to defame him.

    • Cassidy v Daily Mirror Newspapers [1929]:

      • Scrutton LJ:

        • Even if D does not know that the statement will be defamatory

          • Cannot say

            • Either that don’t know A

            • Or don’t intend to injure A

        • If reasonable people believes it relates to A

          • And A is thereby defamed

            • D is liable.

    • Lord Guest (dis) in Morgan v Oldham Press [1971]:

      • The ordinary reader must have rational grounds for his belief that the words refer to the plaintiff.

        • This requirement is necessary for the purpose of preserving the freedom of speech

          • and of preventing newspapers being further liable for torts which they quite unwittingly have committed.

  • Use of Article 10

    • O’Shea v MGN Ltd [2001]:

      • Mirror published advert for glamour model who inadvertently looked like C. C sued.

      • Morland J: liability would be contrary to Article 10 of EConHR

        • Would place an impossible burden on publishers if had to check that model did not resemble anyone else before publishing picture

          • Giliker: question whether distinction is valid – should Article 10 be confined to photos?

            • General rule seems to be Hulton.

• Has the statement been published to a third party?

  • Only when letter seen by a third party (“published”) is a reputation actually damaged.

    • Publication has nothing to do with printing presses

      • Merely that libel/slander has come to the knowledge of the third party.

    • Giliker: is really a matter of common sense

      • Publication must be intelligible

      • Must reach the third party

        • Problems only arise where third party that is not intended to read/hear statement does actually do so.

  • Rules for agents

    • If X dictates to secretary defamatory statement

      • Then if secretary hands document typed up back to X

        • Then secretary not liable for defamation

        • Repeating back a statement made by author to author is not publication

    • BUT repeating the statement of a defamer

      • Even if you express doubt to its veracity

        • May mean you are liable for defamation itself.

  • Rules for Third parties unauthorised publication

    • Slipper v BBC [1991]:

      • Slade LJ:

        • On particular appropriate facts the repetition of the sting of a libel by an unauthorised third party

          • if the ""natural and probable" consequence of the original publication,

            • will expose the original publisher to claim for damages due to repetition

      • Bingham LJ:

        • Law would part company with realities of life

          • if it held that the damage caused by publication of a libel began and ended with original publication

            • Defamatory statements are objectionable because of their propensity to percolate through underground channels and contaminate hidden springs.

    • Waller LJ in McManus v Beckham [2002]

      • Original defamer remains liable

        • Where original defamer has authorised or requested publication.

        • Where original defamer that the statement should be repeated or republished.

        • Where defamer has informed a person who is under a moral duty to repeat or republish the statement.

        • Where reasonable person in D’s position is aware or should have appreciated there is a significant risk that

          • (1) that what she says or does is...