DEFAMATION

LIBEL = permanent SLANDER = transitory

1. DEFAMATORY STATEMENT 2. REFERS TO CLAIMANT 3. PUBLISHED TO 3RD PARTY

DEFAMATORY STATEMENT Publication of a statement which reflects on a persons 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 Includes: Doubt ability to do job. Object of ridicule. JUDGE decides whether the ordinary and natural meaning of words are capable of being defamatory and, if they are, then JURY held whether they are defamatory Reasonable person = neither over censorious or easy - Yousoupoff v Metro-Goldwyn-Meyer Pictures Ltd [1934] "Right thinking" The claimant will claim that most offensive meaning can be drawn and the defence that least offensive meaning applies and judge/jury must decide: Marks & Spencer Plc v Granada Television [1988] Implied meanings Kevin Bond v BBC [2009] H/C Lloyd v David Syme & Co Ltd [1986] Lewis v Daily Telegraph [1984] Jameel v Times Newspapers [2004]

Chase v News Group Newspapers Ltd [2002] Hayward v Thompson [1981] Liberace v Daily Mirror Newspapers Product Testing Defamatory if implies dishonesty on manufacturers part: Walker Wingsail Systems v Sheahan Bray & IPC [1994]

PROFESSION Winfield A statement which disparages a person in his reputation in relation to his office, profession, calling, trade or business may be defamatory, for example the imputation of some quality which would be detrimental or the absence of some quality which is essential to the successful carrying out of the officesuch as want of ability, incompetence, conduct which breaches widely recognised cannons of business behaviour or, of course, fraudulent or dishonest conduct.

VULGAR ABUSE Written articles judged as whole Norman v Future Publishing [1998] Court should not strip society and journalism of all humour. Implication of habitual conduct: David & Carol Johnson v Radio City [1988] WHOLE of article must be considered in context: Gillick v BBC [1996]

INNUENDO Apparently innocent words with a hidden meaning but become defamatory due to other facts. Dwek v Macmillan Publishers [2000] 1) Indirectly criticising or defamiling

2) Making a statement, juxtopisitional statement within context. Facts and circumstances of innuendo exists, but people know to contrary Gorrie v Star 1986 Defaming innuendo Tollie v Fry & Sons 1931 Golfer sponser

REFER TO PLAINTIFF Winfield = must be a peg or pointer indicating the plaintiff Would a reasonable person have thought it referred? Hayward v Thompson [1981] 3 WLR 470. Oshea v MGN Ltd [2001] EMLR 40

CLASS PUBLISHED must be communicated to a 3rd person Hudson v America News Media [2006] Mohammed Hussein Al Amoudi v. Jean Charles Brisard & Anor (2006)

THE REPETITION RULE It is defamatory to repeat what someone else has told you, even if qualifies original statement without endorsing it Major v New Statesman [1993] However CAN refer to a rumour to discredit it

EXEMPTIONS: - Deceased cannot sue - Political institutions

DEFENCES

Absolute Privilege Parliament Bill of Rights of 1689 article 9 The freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament. 1. Members statement in either house. 2. Report published by either house 3. Statement by one officer of state to another. Courts 1. All statements in course of judicial proceedings. 2. Fair, accurate and contemporaneous media reports of public judicial proceedings (Defamation Act 1996 s.14). Contemporaneous: (a) Broadcasts = same day. (b) Daily Newspaper = following day. (c) Internet = immediate. Others: All statements between spouses. Official statement by E.U. officials/servants. Communications between solicitor and client

QUALIFIED PRIVILEGE Defeated by malice. STATUTE Defamation Act 1996 s.15 = 2 groups: (a) Group 1 where qualified privilege without explanation or qualification. (1) Fair and accurate reports of the proceedings of legislatures, courts, governmental inquiries and international organisations held in public anywhere in the world Curistan v Times Newspapers Ltd [2008]C/A

(2) Fair and accurate copies of, or extracts from, material published by or on the authority of any government, legislature, international organisation or international conference anywhere in the world. (b) Group 2 subject to explanation or contradiction means that if claimant provides a reasonable explanation requesting defendant to publish it and defendant fails to publish it in a reasonable manner then the privilege is lost. Reasonable means that paper must give same prominence to the explanation refuting the allegation as it did to the original allegation. (1) General meeting of U.K. public companies. (2) Public sittings of tribunals, boards and committees acting under statutory powers. (3) Decisions by associations in the fields of the arts, sciences, religion, charity, trade, industry and sports. (4) Proceedings of public meetings in any E.U. state (Also some others) McCartan Turkington Breen v Times Newspapers [2000] LIMITATION s.15 privilege does not apply to the publication to the public, or a section of the public, of matter which is not of public concern and the publication of which is not for the public benefit. Common Law Legal, moral or social duty to impart and receive Politics Originally held that public interest in politics would not qualify for qualified privilege as this would lift the balance to an unacceptable degree against the individual but change in: Reynolds v Times Newspapers [2001] 2 AC It is in the public interest that the reputation of public figures should not be debated falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. FACTORS court must take into account: 1. Seriousness of allegation. 2. Nature of information and to what extent it is of public concern. 3. Source of information.

4. Steps taken to verify. 5. Status of information. 6. Urgency of matter. 7. Whether claimant asked to comment on it. 8. Whether claimants side of story set out (at least in general terms). 9. Tone of article. 10. Circumstances of publication including timing GKR Karate (U.K.) Ltd v Yorkshire Post Newspapers Ltd [2000] there may be extreme cases where the urgency of communicating a warning is so great or the source of the information so reliable that publication of suspicion or speculation is justified. Armstrong v The Times [2005] C.A Grobbelaar v News Group Ltd [2001] Lord Hobhouse: journalist must behave responsibly if they wish to take advantage of the protection of the law of qualified privilege. Irving v Associated Newspapers [1999] Bonnick v Morris [2002] Loutchansky v Times Newspaper Ltd (No 2)[2001] Lord Phillips Not all journalism can be or should be expected to reach an identical view in every case. Responsible journalism will, in certain circumstances, permit equally of publication or nonpublication. Galloway v Telegraph Group Ltd [2006] the newspaper was not neutral, but embraced the allegations with relish and fervour and went on to embellish them. Marion Henry v BBC [2005] report so heavily laden with editorial comment. James Gilbert Ltd v Mirror Group Newspapers Ltd [2000]the only compelling factor..was the timing of the next edition of the Sunday Mirror.Newspapers should not confuse their own commercial interests with the public interest. Al-Fagih v H.H. Saudi Research and Marketing (U.K.) Ltd [2002] Latham L.J.: It is the fact that the allegation of a particular nature has been made which is in this context important, and not necessarily its truth or falsity. Simon Brown: proper balance between the cardinal importance of freedom of expression by the media on all matters of public concern and the rights of the individual to his good

reputation. Neither is absolute, but the former, particularly in the field of political discussion, is of a higher order, a constitutional right of vital importance to the proper functioning of a democratic society. Reynolds reflected on the one hand the importance of keeping the public informed and on the other the need for responsible journalism to guard against needless information. Presumption in favour of freedom of expression Christopher Roberts & Others v Gerry Gable & Others [2007] Eady J. There is a dutyamong political commentators generally to cover the goings on in political parties, including disputes. Gaddafi v Telegraph Group (No 1) [2000] Jameel (Mohammed) v Wall Street Journal Europe [2006] Lord Hoffman said: In the hands of a judge hostile to the spirit of Reynolds, they can become 10 hurdles at any of which the defence may fail. Lord Bingham: the liberalising intention of the Reynolds privilege exists to protect. Reynolds public interest defence requires: (a) The public interest of material. (b) Necessary to include material. (c) Responsible journalism. Hale: We need more such serious journalism in this country and our defamation law should encourage rather than discourage it. Lord Scott: To insist on a reciprocity of duty and interest between the publisher of a newspaper and the reader of a newspaper, who may be in New York, London, Rome, or anywhere, either makes the requirement of reciprocity meaningless or deprives any defamatory statement in the paper, no matter how important as a matter of public interest the content of the statement may be, of the possibility of qualified privilege. Eady J. It may be necessary or at least admissible for a defendant to allege and prove subjective belief to show responsible journalism under Reynolds rules. One question is whether the issue of malice can ever apply. If a journalist has carefully checked it cannot be said to be reckless. If, objectively, the story should be published in the public interest can it be prevented because the journalist bears the person ill will? This case also established that:

(A) Whilst there is a presumption that any defamatory statement is untrue for liability and damages (onus of proof on defendant) that presumption does not apply where judging whether responsible journalism for qualified privilege. (B) There is an irrebutable presumption that did cause damage. Lord Bingham said the good name of a company, as that of an individual, is a thing of value. MALICE (a) No honest belief in truth OR (b) reckless whether true or not. JUSTIFICATION TRUTH is a defence but onus of proof on Defendant. If substantially true when taken as a whole then defence even if not entirely accurate: STING of allegation Turku v News Group Newspapers [2005] Miller v Associated Newspapers Ltd (No.3) [2005] Defamation Act 1952 s.5 where a statement comprises two or more different charges against the claimant, it is not necessary to prove that each charge is true, so long as the words which are not proved to be true do not materially injure the claimants reputation having regard to the truth of the remaining charges. The media also have duty to be accurate under: (1) Press complaints commission. (2) National Union of Journalists. (3) OFCOM. Rehabilitation of Offenders Act 1974 Does not prevent reporting of spent convictions. Subsequent evidence. Evidence which comes to light after publication cannot be used to prove justification. However it may show that a person has not been lowered in public esteem when already is known for that activity:

Channel 5 program claimed that Kate Moss had taken so much cocaine at charity fashion event in Barcelona that she had fallen into a coma. FAIR COMMENT on a matter of PUBLIC INTEREST Public interest South Hatton Coal Co v N.E. News Association [1894] Comment OPINION not fact, but opinion should be based on true fact Any facts must be true or privileged. Galloway v Telegraph Ltd [2006] Branson v Bower (NO 1) [2001] Kewell v Lineker and other (2005) Sufficient if facts are common knowledge: Lowe v Associated Newspapers Ltd [2006] Kemsley v Foot [1952] AC 345 Telnikoff v Matusevitch [1991] Bladet Tromso v Norway (1999) Comments based on untrue facts will not be protected: Where mixture of true and untrue, untrue facts can be disregarded if true facts justify opinion. Fair Honest and relevant expression of own opinion. Lord Denning An honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations; no matter his opinion was wrong or exaggerated or prejudiced. He would not be liable even if other people read innuendos into it. Branson v Bower (No 2) [2002] 2 WLR 452. Could an honest person on true facts have made the same comments? Albert Cheng v Tse Wai Chun Paul [2004]

Lord Nicholls said that dislike of an artists would not justify an attack upon his morals or manners. But a critic need not be mealy mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism. Telnikoff v Matusevitch [1991] H/L Court said that the onus was not on the defendant to show that he honestly believed it true but on claimant to show objectively unfair in the sense that no man, however prejudiced or obstinate could have made the comment honestly. Lowe v Associated Newspapers Ltd [2006] Eady J. The ultimate test is the objective one of whether someone could have expressed the commentators defamatory opinion (or drawn the inference) upon the facts known to the commentator. However sufficient if facts known in general terms. McQuire v West Morning News Co Ltd Malice (1) No honest belief in truth OR (2) Reckless whether true or not. Tse Wai Chun Paul v Albert Chang [2001] Honest belief in truth suffices even if motivated by spite, animosity, intent to injure, intent to arouse controversy or other motivation. The onus of proving malice is on the claimant. APOLOGY Libel Act 1843 s.1 can reduce damages if Defendant gives notice at time serve defence and can show that apology was offered before action (or as soon as possible after). No need for payment into court. OFFER of AMENDS Defamation Act 1996 ss.2-4 Innocent publication of false and defamatory statement: (a) Defendant must prove that did not know that it referred to claimant (b) Offer suitable correction, apology and compensation. (c) Notify people to whom published (d) Pay compensation and costs If offer accepted action ends. If offer refused then offer is a defence Reasonable care must have been used:

Ross v Hopkinson [1956] Norman Angel v Adrian Stainton & another (2006) Campbell-James v Guardian Media Group [2005] LIMITATION period is 1 year extendable by court under Limitation Act 1980 s.32A. Steedman v BBC [2001]

CAUSATION is repetition a novus actus or is originator of statement also liable for it? Liable for subsequent repetition if: (a) Authorised/intended repetition. (b) Recipient under a duty to repeat it. (c) natural and probable consequence. Slipper v B.B.C. 1 QB 283 Lord Bingham Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs. McManus v Beckham [2002]

REMEDIES

Injunctions Injunctions as legal device for silencing the press Goldsmith v Sperrings Ltd Interim Injunctions Previously applications made ex parte. HRA 1998, s.12 If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied-- that the applicant has taken all practicable steps to notify the respondent; OR: that there are compelling reasons why the respondent should not be notified.

Test for granting an interim injunction: Previously at common law Interim Injunctions only granted in exceptional circumstances. The rule against prior restraint William Blackstone in his commentaries said The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publication but if improper, mischievous or illegal he must take the consequences of his own temerity. Williams Coulson & Sons v James Coulson & Co (1887) an interim injunction should only be used where claimant can show that the statement is clearly untrue. Bonnard v Perryman (1891) Interim injunction will not be granted if defendant relying on defence of justification. Lord Coleridge held that, because of the clear importance of free speech, the court must act most cautiously and warily in granting an injunction until it is clear that the alleged libel is untrue. Holley v Smyth [1998] Same applies if defendant is going to plead fair comment and qualified privilege. The Observer and the Guardian v U.K. [1991] EctHR: the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is especially as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest. HRA 1998 s.1 applies if court considering granting any relief which might affect convention right to freedom of expression. HRA1998, s.12 (3) Interim injunction should not be granted unless court satisfied claimant likely to be able to show that publication will not be allowed In defamation interim injunction usually only granted where statement obviously untrue and no arguable defence which could succeed. H.R.A. 1998 S.4 The court must have particular regard to the importance of the Convention, right to freedom of expression AND:

Journalistic Material under H.R.A. 12(3) and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to:(1) The extent to which: (a) the material has, or is about to become available to the public. (b) It is, or would be, in the public interest for the material to be published; (2) Any relevant privacy code. Douglas v Hello! Ltd (No.1) [2000] Morritt: Particular regard means that court should give it specific and separate consideration. Kashoggi v IPC Magazines [1986] Greene v Associated Newspapers Ltd [2005] No absolute, unquestionable knockout evidence. Conspiracy to defame. Injunction against one newspaper can affect the media generally HUMAN RIGHTS ARTICLE 10(1) Freedom of Expression protects the right to receive and impart information but subject to protection of the rights and freedoms of others. Any exception must be: (a) Prescribed by law (b) Necessary in a democratic society (c) Proportionate Legitimate aim covered by 10(2) exceptions i.e.: (a) National security (b) Information received in confidence (c) Prevention of crime and disorder, (d) The rights of others. (e) Maintaining the authority of the judiciary.

Necessary in a democratic society means pressing social need and proportionate with relevant and sufficient reasons. Observer & Guardian v U.K. Court emphasized need for press freedom: 1. Public watchdog ideas and information on matters of public interest. 2. Freedom of expression = essential foundation of a democratic society. 3. Freedom to express that which offends, shocks or disgusts 4. News is a perishable commodity and delay may deprive it of value and interest Lingens v Austria (1986) Although politicians must be given some protection the requirements of such protection have to be weighed in relation to the interest of open discussion of political issues. (a) Put the burden of proof of falsity on the prosecution. (b) Defence of reasonable grounds for believing in truth of statements. Karhuvaara Itaalehti v Finland (2004) Public have right to be informed, which is an essential right in a democratic society that, in certain circumstances, may even extend to aspects of the private life of public figures, particularly where politicians are concerned. However corresponding duty on journalists to carefully check facts before making personal attacks: Cost of injunctions As a condition for the granting of an interim injunction the person seeking the injunction has to give a cross-undertaking in damages. Disobeying an injunction can result in a fine for contempt of court. The Court has discretion to award damages instead of injunction under Supreme Court Act 1981 s.50. An injunction obtained in an English court does not prevent publication in another country (including Scotland!) DAMAGES Libel is actionable per se Slander = actual damage

EXCEPT allegations of: (a) Imprisonable offence (b) Contagious disease leading to exclusion from society. (c) Unchastity in woman. (d) Unfit for their trade, profession, business or appointment. FACTORS in assessing damages: 1. Was an apology made as soon as possible? 2. Did claimant already have a bad reputation? 3. Was there provocation? 4. Whether claimant had already been paid for same libel? 5. Remoteness of damage Excessive claims Sutcliffe v Pressdram Ltd [1991] Law Commission in 1996 We accept the force of criticism that it is wrong for the law to appear to convey the impression that reputations are valued more highly than lives and limbs. Aldington v Tolstoy John v Mirror Group Newspapers [1996] Juries were like sheep loosed on an unfenced common with no shepherd. Rantzen v Mirror Group Newspapers [1993] Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation? McKenna v Daily Mirror (2006) Eady J: Much energy has been expended to very little purpose. Contemptuous or derisory Damages Technical defamation but judge/jury considers that action should not have been brought: Pamplin v Express Newspapers (No 2) [1988]

Aggravated Damages To reflect exceptional suffering due to defendants bad behaviour: Kiam v M.G.N. [2002] Exemplary Damages Punishment for bad behaviour. John v Mirror Group Newspapers [1996] Appeal against quantum of damages (Courts and Legal Services Act 1990 s.8) Where C/A consider an award excessive it can substitute such sum as appears to the court to be proper or order a retrial. Summary procedure under Defamation Act 1996 where damages limited to 10,000. Heard by Judge alone. Legal aid is not available for defamation or malicious falsehood Access to Justice Act 1999 s.6(8) legal aid may be granted in exceptional circumstances. Conditional fee arrangement under Courts and Legal Services Act 1990 modified by Access to Justice Act 1999.

CRIMINAL DEFAMATION MALICIOUS FALSEHOOD Definition: False statement published maliciously causing special damage: (a) If transient then the actual or likely loss must be direct and natural result of publication. (b) If permanent then sufficient if likely to cause financial loss in any way. This protects claimants economic interests Grapelli v Derek Block (Holdings) Ltd [1981] Untrue statement Kaye v Robertson [1991] Malice means without just cause or excuse and with some indirect, dishonest or improper motive. Joyce v Sengupta [1993]

Death does not prevent action in Malicious Falsehood