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Defamation

Defamation is an exciting area of law which is frequently in the media because of actions by celebrities and politicians. It is also an area which is inherently concerned with freedom of expression, encapsulated in Article 10 of the 1998 Human Rights Act. The idea behind defamation is the protection of reputation of a person or business from injury due to unjustified insults. Clearly, if people were permitted to say whatever they want about each other, regardless of the consequences, society would be a much less friendly place to live or effective place to run a business.

There are two types of defamation:

•  Libel - something which is in a permanent form e.g. in writing, images, film or recording. It also includes anything said on stage or in a broadcast.

•  Slander - spoken words usually said in a conversation.

An important term which is used repeatedly in the case law is 'publication'. In order to be actionable, a defamatory statement must be 'published' to a third party. In defamation, 'publish' does not have its ordinary definition meaning the printing of words in a book or leaflet. Publishing, here, means communicating the defamatory statement to a third party, whether that is in a conversation or the people at home who are watching a television show in which a defamatory comment is made.

 

The difference between libel and slander

As mentioned above, libel is tends to be in permanent form whereas slander is spoken words. Legislation has made clear that tv broadcasts or theatre plays are to be treated as libel (s166 Broadcasting Act 1990 and s4(1) Theatres Act 1968, respectively). For other methods of communication it is necessary to consult the common law which applies a test of permanence or transience of the statement. In Monson v Tussauds [1894] 1 QB 671, the court had to decide whether a wax statue was capable of being libel. In hold that it was, the court said that anything which has a permanent of lasting form can be libel including an effigy or chalk marks on a wall.

Another important distinction is that libel is actionable per se , which means without any proof of damage. Whereas slander, like most areas of law, requires proof of some injury before a lawsuit can be brought. What kind of injury can be shown? Mere damage to reputation is insufficient, so is the loss of friends (though losing out on the hospitality of friends may be sufficient: Moore v Meagher (1807) 1 Taunt 39). Something like loss of a job or reduced business profits would be sufficient. As an aside, the requirement of damage has often been criticised. It is not clear why libel should be more easily actionable. It is true that words in permanent form, such as book, have more potential to reach large numbers of people than simply spoken words, but this may not necessarily be the case where someone is making a speech to large groups of people. For a floodgates argument against slander being actionable per se , see the report of the Committee on the Law of Defamation 1948 Cmd 7536 paras 38, the Porter Committee.

There are, however, some types of slander actionable per se :

•  Imputation of criminal conduct - where a Defendant accuses the Claimant of criminal conduct which is punishable by imprisonment (probably not a traffic offence: Groom v Crocker [1939] 1 KB 194), there is no need for proof of damage: Gray v Jones [1939] 1 ALL ER 795. However, words which express suspicion will not be actionable per se.

•  Imputation of a contagious disease - this rule is largely outdated but would have had significance during the periods where serious diseases were rampant (i.e. the black plague). Clearly an imputation that someone has a disease can lead to job loss or social exclusion. This exception would be applicable today for something like HIV/AIDS.

•  Imputation of unchastity - Slander of Women Act 1891, s1. This applies to the imputation of adultery or unchastity. There is no version for men.

•  Imputation in unfitness to run a business - s2 Defamation Act 1952: "words calculated to disparage the claimant in any office, profession, calling, trade or business". It used to be the case that the exception only applied to comments directed at specific professional tasks, thus accusing the boss of an affair with the caretaker would not be under this exception. It would have been if they were accused of an affair with an employee as that affects how they do their job. Now, however, the exception is much broader and apply to the whole job generally.

 

1. The Statement must be Defamatory

The first requirement for a defamation action is that the statement is defamatory.

 

Basic Definition

A defamatory comment is one that injures a person's reputation. The basic test is from Partimer v Coupland (1840) 6 M&W 105,

"[Was the statement] calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule."

Thus was expanded on in Sim v Stretch (1936) 52 TLR 669,

"The conventional phrase exposing the plaintiff to hatred, ridicule, contempt' is probably too narrow ... after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally ?" (emphasis added)

It does not matter if the statement is not believed in fact by the people they are published to, but it does matter if no reasonable person would believe them , in which case they are not actionable: Loukas v Young [1968] 2 NSWR 549 (concerned allegations of witchcraft). The statement must be assessed in its context and regard must be had to the characteristics of the Claimant; a statement which is defamatory of practising lawyer may not be of a law student. In Monson v Tussuads, mentioned above, a wax statue of the Claimant had been placed in the same room as some murders next to the Chamber of Horrors. The Claimant had been tried for murder but a verdict of 'not proven' was entered and he was successful in his claim.

A defamation must go beyond mere insults and strike at the claimant's reputation. Insults and jokes may hurt people and even be the cause of a civil action in employment law i.e. between employees), but discourtesy and insults are not on the same level as defamation. Defamation is one of the only areas of civil law to retain a jury, and it would be for the jury to decide whether the words were defamatory.

In Berkoff v Burchill [1996] 4 ALL ER 1008, a well-known journalist twice made remarks about Stephen Berkoff, an actor and director. She said that "film directors from Hitchcock to Berkoff are notoriously hideous-looking people" then in another review about Frankenstein she compared the monster's appearance to Berkoff, saying the monster was marginally better looking. Were the words 'hideously ugly' capable of being defamatory? The Court of Appeal said that words can be defamatory if they hold the claimant up to contempt, scorn or ridicule or tend to exclude him from society. The court emphasised that the statement was to be judged from the perspective of the reader and not according to the intention of the maker. In finding for the Claimant, the court said that the comments by the Defendant didn't just make the Claimant sound ugly but extremely repulsive and that this could be defamatory to a person who made part of his living as an actor. They said that most right-minded individuals wouldn't shun a person simply because of their looks, as opposed to if that person had a disease or was a criminal, but because of the profession of the Claimant the statement amounted to defamation. In a dissenting judgment Millet LJ said that words cannot be defamatory if the readers understood them to be a joke, even if it was a true joke.

In Charleston v News Group Newspapers [1995] 2 AC 65, two popular characters from the tv show Neighbours were portrayed on the front cover of a newspaper naked except for black leather engaged in sexual intercourse. The title read "Strewth! What's Harold up to with out Madge? Porn shocker for Neighbours stars" however the captions on the pictures made clear that the images were false. The image was taken from a sordid computer game which had computer-generated the images. The rest of the article condemned the game in a tone which can be contrasted with the prominence given to the image. The House of Lords accepted that the image must have deeply offensive but said that it was not defamatory since a publication has to be read as a whole. Even though the image and headline were libellous the remainder of the article had a neutralising effect.

Other examples of defamation

In the past there were several cases where accusing someone of being homosexual was a defamation. However, as society has changed so too has the 'right-thinking man' and it is likely that nowadays such an accusation would not be defamatory. In respect of money, to say that someone is insolvent will be actionable as it will almost certainly stop people from trading with them, but to say simply that they owe money will not usually, as many people owe money quite frequently: Wolfenden v Giles (1982) 2 Br Col R 284.

 

The Standard of Opinion

Tolley v Fry [1930] 1 KB 467,

"To write or say of a man something that will disparage him in the eyes of a particular section of society but will not affect his reputation in the eyes of the average right-thinking man is not actionable within the law of defamation"

When considering whether words are defamatory the court inquires into what people should think and not into what the recipients of the statement actually thought. The standard is thus objective.

Byrne v Deane [1937] 1 KB 818, the Defendants owned a golf club where illegal gambling machines were kept. Someone told the police and they were removed. Shortly after a piece of paper appeared on one of the walls saying but 'he who gave the game away, may he byrnn in hell and rue the day'. Did these words defame the claimant in the sense that he was guilty of underhand disloyalty to his fellow club members by telling the police about the machines. The Court of Appeal held that even though some people may consider that the fruit machines were so trivial that they weren't really criminal, the right-thinking man cannot ever view the reporting of crime as defamation. To report crime, however trivial, cannot be a source of scorn or ridicule in the eyes of the law.

This case can be compared with Mycroft v Sleight (1921) 90 LJKB 883 where it was said that it could be defamatory for one worker on a strike to say that another worker (who had voted in favour of striking) had now changed his mind and started to work. This accusation exposes the Claimant to the suggestion of disloyalty and hypocrisy even though (one would assume) going to work is a good thing to do. The difference between the judgments probably lies in the fact that criminal acts can never be sanctioned whereas strikes can be sanctioned.

 

Meaning and the Question of Innuendo

When deciding whether words are defamatory, the jury is asked to consider them in their 'natural and ordinary' meaning. In some cases, however, the Claimant may allege that the words are defamatory in their innuendo meaning. There are two types of innuendo. The first is a popular or false innuendo where the words don't have their literal meaning (as with many jokes). The question here is whether the right-thinking person would 'read between the lines'.

Lewis v Daily Telegraph [1964] AC 234. A police investigation into a company that produced plastics were leaked to a newspaper. The front page of the newspaper copied the document which said that an investigation was going on by the fraud squad after criticisms of the chairman's accounts by a shareholder. The company was later absolved of any wrongdoing and they sued for defamation alleging that the newspaper had intended that readers assume the company was fraudulent. The action wasn't based on what the words said themselves, but on a secondary meaning which may have been inferred by the reader: the innuendo meaning. The House of Lords held that the right-minded person would not infer guilt just from the article and the case was dismissed.

The second is a true or legal innuendo where something more than reading between the lines is needed. This is where the ordinary reader wouldn't understand the innuendo; only those who have some extra knowledge will understand. So for example, if A says that he saw B enter a certain house, there is no derogatory implication unless B knows that the house is a brothel.

In Cassidy v Daily Mirror [1929] 2 KB 331, the Defendants took a photograph of Mr Cassidy (a racehorse owner) with a woman who was not his wife. Mr Cassidy, who often used a different name, told a reporter that he was going to marry her and the image had a caption saying they were engaged, using his alternative name. Mrs Cassidy, the lawful wife, brought an action for defamation. Although they lived separately, Mr Cassidy sometimes came to visit her. She alleged that people would see him arriving at her house thinking he is the man from the photo (where his alternative name was used) and assume that they were living together immorally and only pretending to be his wife. The Court of Appeal said that words published about one person can sometimes defame another person and that Mrs Cassidy had in fact been defamed. By people seeing this man coming to her house who is supposed to be marrying another woman, she looks like she was simply pretending to be his wife. The blame here was on the newspaper but arguably, the fact that a lawful wife existed may have been difficult to discover.

 

2. The Statement Must Refer to the Claimant

How Can we Identify the Claimant

The Claimant doesn't have to be identified by name but as long as a reasonable inference can be made this criteria is satisfied (i.e. in Byrne v Deane the proem said 'byrnn'; this was obvious enough to identify the Claimant as the target of the comment). Also, as we have just seen in Cassidy, words published about one person can sometimes defame another.

However, it is important to remember that the question is not who the publisher intended to hit, but who they actually hit. Thus in Hulton v Jones [1910] AC 20, Artemus Jones was a barrister who brought an action against the defendants in respect of a newspaper article which allegedly referred to him. The article referred to a man called Artemus Jones who worked as a warden and alleged that he had behaved immorally during a motor festival. The Claimant had contributed pieces to the newspaper before. The Defendants argued that they had never intended the 'real' Artemus Jones but instead had created a fictional character and given it a fancy name. The Defendants lost at trial, in the Court of Appeal and in the House of Lords. This case has been called 'the most famous case in the law of libel' and has been heavily criticised. Arguably it is quite unfair to the newspaper. At the same time, however, it is not open to anyone with the same name to sue. Rather the jury must reasonably believe that the person in the statement is the Claimant. It will be hard to convince them when the Claimant has no connection at all with any of the facts.

However, in Morgan v Odhams Press [1971] 1 WLR 1239, the court said that ordinary members of the public do not read a newspaper article surgically, as a lawyer would, but simply skim over it. Thus if a person would think the article was referring to the Claimant after a brief skim then that will be sufficient, even if upon a close reading it is clear that it did not refer to the Claimant. However, what often happen in cases where the evidence against the Defendant isn't strong, is that the jury will find the Defendant liable but only give nominal damages, such as £1.

In cases where there the article accidentally refers to an unintended person, the publisher can make an offer of amends under s2 Defamation Act 1996. This is situations where the Defendant neither knew nor had reason to suspect that the statement referred to the claimant or was likely to be understood as referring to the claimant. The offer of amends requires the Defendant to publish an apology and offer to pay compensation.

 

Group Defamation

Where a statement is about a group of people it is difficult to prove that the statement refers to an individual member e.g. all lawyers are thieves. However, there is no special rule preventing liability in cases of group defamation.

In Knupffer v London Express Newspapers [1944] AC 116, some articles published during the second world war referred to a political group of Russian exiles as people who wanted to work with Hitler to make Russia facist. The Claimant was the head of the group in the UK and claimed that the words could reasonably be understood as imputing him. The global membership was 2000 but the UK membership was only 24. The House of Lords said that there could be no general rule preventing a lawsuit as long as the statement can be understood as referring to individual members in the party, which they did not do in the present case.

 

3. The Statement must be Published

The words must be published to a third person, in other words to a person other than the Claimant. A statement can be published in many ways including by omission, such as where you have a duty to clear graffiti from the walls: Byrne v Deane , above. The one exception is that communication to the Defendant's spouse is not publication but communication to the Claimant's spouse may be.

Who can you publish a statement to? In Huth v Huth [1915] 3 KB 32, a man sent a letter to his wife which defamed her and their children. It was opened and read by the butler. An action was brought by the children (as a wife could not sue her husband at the time). The Court of Appeal dismissed the case saying that it was not the butler's job to open letters and he only did so out of curiosity. There cannot, therefore, be a publication to a third party where it is not natural and probable that that third party would hear the information. Thus in Theaker v Richardson [1962] 1 WLR 151, a husband opened a letter which defamed his wife. It was held that the defamation had been published to the husband as it natural and probable that the husband would open it.

A particular problem for the courts is not the first communication by the Defendant himself but any subsequent communication. What happens if the Defendant tells A who tells B who tells C and so on? Every repetition of a defamatory statement gives rise to a new cause of action against the Defendant provided it was foreseeable the document would be passed on.

In Slipper v British Broadcasting Corporation [1991] 1 QB 283, the Claimant was a retired police officer was the subject of a film about trying to capture some men who had committed the Great Train Robbery. The Claimant alleged that the film showed him as a complete idiot. The film had been shown to some journalists before its release to the public and those journalists had published reviews contained the defamatory sting of the film i.e. that he was an incompetent police officer. The Claimant sued not only for the release to the public but the repetitions in the journalists' reviews. The defendants argued that the repetitions are only actionable where the defendant has authorised them. The court rejected this argument and said that the Defendant can be liable for any re-publication of the defamatory material as long as it was reasonably foreseeable.

The rule of re-publications is stricter in respect of publication on the internet. Every time an internet user accesses an article on a website there is a fresh publication. In Loutchanksy v Times Newspapers [2002] QB 783, the defendant argued that the court should adopt a single publication rule as in some US states where an article put online is published once regarding of many times it is accessed. The court rejected this though accepted that the rule may be disproportionate and was somewhat at odds with the 12 limitation period for defamation.

 

4. Defences

Some general defences available in tort apply also to defamation, such as consent (see Monson v Tussauds ). There are some defences which are specific to defamation, these are justification, fair comment, privilege, offer of amends and innocent dissemination.

 

Justification

The Defendant can justify the defamatory comment by proving its truth. According to Sutherland v Stopes [1925] AC 47, the statement must be "true in substance and fact", so as long as the statement is substantially true (but not completely true) the defence will succeed.

In Grobbelaar v News Group Newspapers [2002] UKHL 40, Grobbelaar was a well known footballer and was accused in an article of receiving money to fix the results of matches in which he was playing. The Sun covertly recorded some meetings between Grobbelaar and the undercover reporter where Grobbelaar admitted taking money to lose matches in the past and took £2000 to cheat in matches in the future. The Sun then printed several articles over a period of time on the subject. Grobbelaar was arrested and tried twice in respect of bribe taking. The first time the (criminal) jury could not agree and the second time they acquitted him of one charge but not the other. The footballer then sued alleging defamation in respect of the charge he was not convicted of. The House of Lords held in his favour but only gave damages of £1. The reasoning was that the sting of the defamation lay in his having conceded actually goals, and professional footballers gave evidence on tapes of his games saying that he did not appear to be doing so. If the sting of the defamation lay in the fact that he had taken bribes in the past and was prepared to concede goals in the future then he justification defence would have succeeded. The case emphasises the importance of identifying the sting of the defamation and ensuring that the justification covers that fully, not partially as in this case.

In Alexander v North Eastern Railway (1865) 6 B&S 340, the Defendants published a notice at their train station saying the Claimant had been caught riding on a train without a ticket and was sentenced to £1 fine or three weeks imprisonment. In actual fact it was 14 days imprisonment if he failed to pay the fine. The Claimant complained that the overstatement made it appear as if the offence he had committed was worse than it was. The jury found for the Defendants.

The rumour doctrine - Where the defendant uses another person's beliefs or suspicions as the foundation of his defence, he can only rely on justification if he knew the underlying facts were true. It is no defence to say that he was merely repeating what he had heard: Stern v Piper [1997] QB 123. However, it has been accepted that there may be circumstances which permit a person to repeat a rumour without knowing whether it is true. Where a defendant says that the claimant is under suspicion of having done something, this does not necessarily mean the claimant has in fact done it but the Defendant will be able to defend himself if he can prove that a reasonable person would also have been suspicious.

Criminal convictions - if the Claimant has been convicted of a criminal offence the defendant only needs to get the certificate of conviction and this will be enough proof. However, in the public interest, if anyone 'maliciously' publishes details about a 'spent' conviction they cannot rely on justification: Rehabilitation of Offenders Act 1974, s8, a conviction is spent after a period of time which depends on the gravity of the offence.

 

Fair Comment on a Matter in the Public Interest

Fair comment on a matter in the public interest is a full defence like justification. This is a particularly useful defence to the media. However, this defence only applies to expressions of opinion ('I think ...') and not expressions of fact ('The truth is ...'). The difference between these can sometimes be hard to determine.

In London Artists v Littler [1962] 2 QB 375, the Defendant wrote a letter to some actors in a play who had all given notice to quit at the same time accusing them of a plot to force the end of a successful play. So many actors giving notice at the same time was apparently an almost unheard of event. They sued him. He pleaded justification and then withdrew it as it became clear that the actors had withdrawn for different reasons and not in order to end the play. The Defendant also argued fair comment on a matter in the public interest. The Court laid down this test:

•  Was the comment made on a matter of public interest,

•  Was the statement an expression of fact or opinion,

•  If opinion, are the underlying facts true and contained in the article,

•  Would a fair man make the same comment.

Regarding (1), they held that whenever a matter affects people at large it can be held to be in the public interest.

Regarding (2) they asked whether the Defendant saying that there was a conspiracy to end the play was an expression of opinion or fact. The fair comment defence only applies when the statement was an opinion. In order to answer this it was necessary to look at the manner in which the statement was said, were the words like 'it seems' or 'it may be' used. If the Defendant says "X is happening", this would be a statement of fact as in the present case.

If the statement is an opinion rather than a statement of fact, another requirement ( which was treated as part of (2) in London Artists but is better treated separately) is the basis of truth for the comment. Are the facts that the opinion is based on true? If the court didn't ask this question then Defendants could get away with calling an obvious lie an opinion. Following s6 of the Defamation Act 1996, the Defendant need not prove the truth of every allegation as long as the allegations proved to be true form a substantial part of the basis for his opinion. It is important that the article contains some of the facts on which the opinion is based: Kemsley v Foot [1952] AC 345.

Even though he failed at (2) he would have failed at (3) as well as a fair man would not have jumped to such a conclusion.

 

Privilege

In certain situations the right to free speech becomes more important than the right not to be defamed. There are two types of privilege: absolute privilege when complete freedom of information is needed and qualified privilege when the need for freedom is slightly lower.

 

Absolute Privilege

The main examples of absolute privilege are:

•  Statements in Parliament

•  Documents ordered to be published by Parliament

•  Statements made in the course of judicial proceedings e.g. witness' evidence

•  Fair and accurate reports of judicial proceedings

•  Communications by a minister of other officer of the state to another in the course of his duty.

 

Qualified Privilege

Qualified privilege applies to a broader range of situations though it offers less protection. At common law there is qualified privilege where,

"where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive" ( Adam v Ward [1917] AC 309)

So there has to be an interest or duty in both the maker of the communication and the recipient. So the question is who has such a duty or interest? In Reynolds v Times Newspapers [2001] 2 AC 217, the Claimant was a former Irish politician who sued over an article which alleged he had deliberately misled his cabinet. The Defendants argued that qualified privilege should apply in all cases where a political subject is concerned. In rejecting this the House of Lords laid down the following as general non-exhaustive considerations:

•  The seriousness of the allegation, the more serious it is the greater the potential harm to the Claimant if untrue,

•  Is the subject of the information of interest to the public,

•  Do the sources have direct knowledge,

•  Have steps been taken to verify the information,

•  Has a formal investigation taken place,

•  Urgency,

•  Was the Claimant allowed to respond,

•  Did the article contain the gist of the Claimant's version of events,

•  Tone of the article,

•  Circumstances of the publication, including timing.

In addition, a defendant cannot keep defamatory articles on their website without giving any indication that its veracity is disputed. If malice can be shown by the Claimant then the defence will fail.

Qualified privilege is also a defence under statute. Section 15 of the Defamation Act 1996 provides that the publication of any report or statement mentioned in Schedule 1 (unless there is malice) is privileged. The exception to this privilege is in relation to Part II of the schedule which prevents the defence where the Claimant asked the Defendant to publish a reasonable explanation or contradiction and he refused. A suitable method of publishing the correction would be the same manner the defamation was published. The defence doesn't apply where the information was not of public concern.

Schedule 1 Part I lists reports by judicial bodies, international organisations or international conferences. Schedule 1 Part II requires the Defendant to publish a correction. Reports under this heading are fair and accurate reports from public meetings in the EU, general meetings of any UK company or in the fields of sciences, arts, sports, religion and trade and industry, to name some.

 

Offers of Amends

It is no defence at common law that the Defendant didn't intend the defamation. The harshness of this rule has been mitigated by statute which can help those who innocently defame others.

Section 2 of the Defamation Act 1996 provides that a Defendant can make an offer of amends must make an apology and correction, publish the correction and apology in a reasonable and practicable manner, and pay compensation and legal costs. The Claimant can go to court if unsatisfied with the execution of the promises in the letter.

 

Innocent Dissemination

Every person responsible for the publication of a defamatory statement is at risk of liability. An action can be brought not only against the author of the article but also editor and owner of the newspaper and even the printer and distributor. Section 1 of the Defamation Act 1996 provides a defence to those who:

•  Are not the author, editor or publisher

•  Took reasonable care in relation to its publication

•  Did not know, and had no reason to believe, that what they did caused or contributed to the publication of defamatory materials.

This defence does not apply where the individual knows the material is defamatory but reasonably believes that it is true.

 

Remedies

If an individual discovers that some defamatory comment will be published in the future they can apply to the court for an injunction to stop the comment being published.

If the comment has already been published the claimant can seek a permanent injunction to prevent any re-publications as well as damages.

In some cases exemplary damages have been awarded.

 

 

 

This is a special verdict in Scottish law which is neither innocent nor guilty.

There has been much criticism over retaining juries as they make trials slower and thus more expensive.