THE CAUSE OF ACTION

1. There must be a defamatory statement
2. Made to the claimant
3. And it must be published to a third person

A.    Defamatory meaning

A statement that causes or is likely to cause serious harm to a person’s reputation.

• Ask yourself- did the words complained of seem ‘calculated to injure the reputation of another person by exposing him to hatred, contempt or ridicule.
• It has to be a defamatory imputation which destroys the claimant’s reputation, and it is made to a third person- once this has happened elements of tort satisfied

Berkoff v Burchill 1996

• Actor could hideously ugly by a journalist in a newspaper review
• Established what amounts to a defamatory statement
• It identifies various tests which are acceptable to use todetermine whether a statement is defamatory
  1. Did the words expose C to hatred, ridicule or contempt
  2. The statement was made about the C to his/her discredit

• The statement makes people shun C

1. The most important test: the court asks whether the words were intended to lower C in the estimation of right minded people.

• Neill LJ- the meaning of words in a libel action are determined by the reaction of the ordinary reader and NOT the intention of the publisher, although the perceived intention of the publisher may colour the meaning.
• The law looks at the tendency of the words= liability can arise even if the words aren’t believed. The words must always be considered in the precise context of their publication.
  • Statement need not be in words- a visual image acquires its meaning from its context
  • A defamatory statement must strike at the C’s reputation
  • Whether particular words are defamatory is a question of fact not law, hence previous decisions aren’t binding and cannot act as anything more than a guide to the case at hand.

Defamation Act 2013, s.11 – no longer a right to trial by jury. As this act abolished this. No longer applies to defamation.  Although pre-2013 cases have doctrine used to deal with juries

Byrne v Dean 1937

• Facts: golf club had some gambling machines which members could use. Under the legislation which was in force at the time it was illegal to have such machines on one’s premises. Police came and took the machines away and all the members were sad. It was suspected that the c was the one who had reported to the police, a notice appeared on the noticeboard which accused the C of having reported to the police the presence of the illegal machines. C sues for defamation alleging that the words had made fellow golf club members shun and avoid him.
• Held: he couldn’t claim for defamation because right thinking people report criminal offences to the police, right thinking people would have alerted the police to this criminal activity
  • Generally the right thinking person is imbued with certain characteristic e.g. law abiding, acts proper= informs the courts in the way in which they apply the tests.

B.    Interpretation

Meaning and question of innuendo

• Consider the meaning of the word sin their natural and ordinary sense
• There are two kinds of meaning thatcan be considered indefamation-
  • the normal meaning, which includes all the alternative, figurative and connotative meanings that can be derived from the word or imagery,
  • the innuendo meaning whichcan be false or true
    • False innuendo= the meaning suggested through innuendo is generally available to most people and doesn’trequire any other knowledge
      • Lewis v Daily Telegraph
    • True innuendo= when the innuendo intended requires special knowledge to understand and make it defamatory. It involves something more than just reading between the lines. Wherever the C argues that facts or circumstances in which are notapparent from the words themselves (intrinsic evidence) gives those words meaning they ordinarily wouldn’t
      • Cassidy v Daily Mirror Newspapers

Lewis v Daily Telegraph 1964

• Facts: imputation about the C and a company he was in charge of, it said that the company was being investigated by the fraud squad. C sued saying people reading that report would understand it to impute that he or his company had committed fraud. Court said no, the reasonable ordinary reader would understand it as he was being INVESTIGATED and not actually GUILTY of fraud.
• Basic proposition: the court will ask itself what a reasonable ordinary reader would have understood the words to mean. How would they interpret this defamatory language. They also added that the ordinary reasonable reader isn’t avid for scandale. reading into things too much
  • Not necessary that a person is named in the statement as long as a reasonable person would understand the words as referring to the C
  • Intention of D in making the statement is wholly irrelevant, lack of any intention to defame is no defence if the words wold be understood as defamatory by those to whom they are communicated. This applies even in the case of a true innuendo where the D doesn’t know the fact which made in an apparently innocent defamatory statement (Cassidy).

Two important applications/interpretations of this test:

1)    Charleston v News Group Newspapers ltd 1995

• Facts: newspaper published an articleconcerning a computer programme which allows you to Photoshop pictures. In the photo concerned, a man and a womanwere engaged in sexual activity and superimposed on the heads of the bodies were the faces of two actors from the show Neighbours. The text explained that the imagehad been manipulated by this computer programme.
  • C sued, reasonable readers of the NOTW would think she had posed for porno pictures with her co-star, and there is a chance readers may only look at the picture and not read the accompanying text and from that they would draw a defamatory conclusion
• HoL: said nope jam your hype, a reasonable reader would read the text accompanying the photo which explains the photo isn’t what it first appearsto be. Also said for any one defamatory publication there is only one meaning/interpretation that a person could put upon it.
  • Basically you can’t adapt the reasonable reader.
  • The publication had to be read as a whole and the headline and pictures considered in isolation couldn’t give rise to liability.
  • It’s necessary to always consider whether the text of the article was sufficient to neutralize the libellous implication of the headline, even though many readers might take note of the latter only.

2)    Cassidy v Daily Mirror Newspapers 1929

• Facts: Photo showed a picture of a man and woman posing at a horse race. Caption said: Mr Corrigan (who also confusingly went by the name Mr Cassidy also but of a playboy) and Miss Muriel Howard, whose engagement has been announced. Mr Corrigan had told the photographer that he was getting married but the woman had denied it was to her. The real Mrs Corrigan(also Mrs Cassidy) sued for defamation as friends and family of the newspaper and some concluded that she couldn’t be really married to him and they were living in sin, and he was in fact going to marry the woman pictured instead.
• CoA: her claim succeeded because reasonable people, knowing Mrs Corrigan’s domestic situation ( they lived apart) would interpret the picture and caption as meaning that they truly weren’t married in the first place.
  • An ordinary reasonable person wouldn’t have known about Mrs Corrigan but that didn’t matter because the people who did have knowledge of Mrs C came to that conclusion= an example of innuendo.
• What we are concerned with, with an innuendo in defamation refers to a technique in the C’s claim that because certain people had special knowledge= defamatory statement as that special knowledge allowed them to come to a certain conclusion, in this case that she wasn’t truly married to Mr C.
• Daily Mail had no idea about Mrs C but that didn’t matter as liability in defamation is strict, it doesn’t matter whether or not you didn’t intend it or took reasonable care.

C.    Serious harm

This requirement brought in by: Defamation Act 2013 s1

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

• This is a new requirement there haven’t been any cases yet on the act
• It isn’t necessary under s1 for C to show that they have actually suffered harm.

Libel and Slander

• Slander generally requires proof of actual injury. Mere loss of reputation is insufficient so too is the loss of society of friends.

Distinction of libel and slander set out in this case:

Thorley v Lord Kerry 1812

• Permanent vs transient form e.g. writing vs speech
• Court held: Libel, where publication is in permanent form, there is norequirement for C to prove that they suffered. Slander by contrast i.e. publication in temporary form= no presumption of damagewill be made,in order to have a successful claim you have to prove that you sufferedactual damage e.g. financial damage, social exclusion etc.
  • Court made it clear they weren’t happy with this distinction or think it made sense but they felt that it was too well established and therefore couldn’t be removed from the common law.

Slander actionable per se

Two exceptions to the rule that slander requires actual injury to be proved:

1. Imputation of an indictable criminal offence
2. Imputation of professional incompetence

Defamation Act 2013, s14

14.— Special damage

• The Slander of Women Act 1891 is repealed.
• The publication of a statement that conveys the imputation that a person has a contagious or infectious disease does not give rise to a cause of action for slander unless the publication causes the person special damage.

Statutory reclassification of speech as libel

i.e. made it not necessary to prove actual damage

Theatres Act 1968 s 4:

4. Amendment of law of defamation.

• For the purposes of the law of libel and slander […] the publication of words in the course of a performance of a play shall, subject to section 7 of this Act, be treated as publication in permanent form.
• In this section “words” includes pictures, visual images, gestures and other methods of signifying

7. Exceptions for performances given in certain circumstances

• S1- any performance of a play given on domestic occasion in a private dwelling
• S2- it won’t count if it’s a performance given solely or primarily for one of these purposes:
  • Rehearsal; or
  • Or to enable a record or cinematograph film to be made from or by means of the performance
  • Or the performance to be broadcast
  • Or the performance to be included in a programme service other than a sound or television broadcasting service.

Broadcasting Act 1990 s166(1)

• For the purposes of the law of libel and slander […] the publication of words in the course of any programme included in a programme service shall be treated as publication in permanent form.

Person defamed doesn’t need to show they suffered any actual damage as a result of that defamation.

D.   Who can sue for defamation

• The words complained of should be published of the plaintiff (Knuppfer)
• The Cmust be identified as the person defamed
  • The C may be identified by name, description, pun or any reasonable inference and that reasonable people might understand the words as referring to the c.

Companies:

• Can companies sue? Controversial issue, hoped Act would address this. Common law position set out in:

Jameel v Wall Street Journal 2007, [11]-[27] (Bingham), [90]-[91] (Hoffmann), [93]-[104] (Hope), [119]-[126] (Scott), [152]-[159] (Hale).

• Companies can sue for defamation and they don’t need to show they actually suffered. Bing, Hope,Scott: any reward for damages should be small. Worries about the extent to which the law impacts on freedom of expression
• Hoffman: idea of company suing for defamation at odds with what this law protects, sees defamation as protecting someone’s personal dignity, a company doesn’t have a soul or feelings of dignity or feeling for respect which for a company is purely commercial
• Hale: chose to emphasize point of freedom of expression, people ought to be free to criticise corporate behaviour, as corporations have taken an increasingly dominating view in our lives, so they have to prove financial loss before they could sue for defamation.
• Issue dealt ins1(1)
  • For companies special provision made, have to prove that they have suffered or will likely suffer financial loss. So not that people will find it less trustworthy etc.

Defamation Act 2013, s.1(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”.

Groups:

Knupffer v London Express Newspaper 1944

• Facts: story published about the young Russia party and the article alleged that the party was collaborating with Hitler. Mr Knupffer was the leader of the party in England, he claimed that because he was the leader of the party he had been defamed as people who knew him would understand the article to be about him
• HOL: the statement hasto be such that the statement is abouteach and every one of the members of the group. The group was a bit too big in this case; reasonable people wouldn’t read the words as referring to every single member of this political party. When people are generalizing they are not understoodto be referring toeach and every member of a class.
  • The house made it clear that it’s not only a question of numbers. Lord Porter said you have to look closely in the way in which the allegation is meant.
  • Broad generalizations are not actionable.

Government:

Derbyshire County Council v Times Newspapers 1993

• Facts: Council brought a claim of defamation against the Times who had published that they were involved in some dodgy money dealings.
• Court: held that they couldn’t sue and neither could any other governmental department or government agency bring a claim of defamation. Because it is important that citizens should be free to criticise and evaluate the performance of public bodies. Principle inherent in the common law, it protects freedom of expression in political matters.
• Scope: the decision itself doesn’t prevent individuals or ministers from suing. So if an attack is made on a public official then this case doesn’t apply in this situation.

Political Parties:

Goldsmith v Bhoyrul 1998

• Case concerning a criticism of a political party run by Sir James Goldsmith. The party’s key policy was should Britain remain a member of the EU?
• The high court held, in just the same way that government entities can’t sue for defamation, political parties aren’t entitled to sue for defamation. The High court accepted the restriction, that Mr Goldsmith himself could bring a claim for defamation.

E.    Strict Liability (the fault element of defamation)

• Liability in defamation is strict i.e. a D is liable irrespective of his/her fault.
  • So whether or not they aimed to defame a particular person, didn’t realize that a person had a similar name or believe the statement to be true= still liable.

Key leading case:

E Hulton & Co v Jones 1910

• Facts: a short fictional story published in newspaper, in the short story the main character was called Artimus Jones, it made fun of this character this respectable character did lurid and improper things when on holiday away from home. There was a real person with the same name, and he was a barrister, he decided to sue because he thought the story was really about him. Publishers sought to raise the defence that they had never heard of the barrister before.
• HoL: rejected this and said liability in defamation is all about who is hit and how reasonable people would interpret this language. If you’re going to make money publishing this rubbish then you have to pay the legal costs that might arise from this.
  • The question isn’t who was meant but who was hit. Therefore defamation is a tort of strict liability.

Newstead v London Express 1940

• Facts: a report of a court case against Mr Newstead and in the report the newspaper accurately described he was convicted for bigamy and Mr N had been criminally convicted in court. It also happened that in the same city there lived a man who was also called Harold Newstead, he was a hairdresser and was reasonably well known.
• Court: held that it doesn’t matter that the facts were true of another person. What matters was that reasonable people who knew Mr Newstead the hairdresser would’ve understood the article to be about him.

O’Shea v MGN 2001

• Small modification of the rule
• Facts: an advert for a porn website was in the newspaper, the C happened to look like the model in the picture and some of her relatives were shocked and distressed thinking it was her. She brought a claim against The Mirror newspaper and tried to bring a claim of strict liability
• Court: said that liability for look-alike pictures isn’t strict because:
  • It isn’t possible to eliminate coincidences of appearances, there’s no way of checking a picture in the same way you can check a name
  • Human rights – the court wasn’t convinced there was a pressing social need to apply the strict liability principle to pictures, there hadn’t been any cases in previous law reports of people suing for incidences of look-alikes. Therefore no problem of people suing for look alike pictures.

Baturina v Times Newspaper 2011

• Case an attempt to build on O’shea esp in light of art 10 of freedom of expression
• Facts: wife of former mayor of Moscow, an article saying she owned the most expensive house in London. Problematic because under Moscow law, public officials required to declare all assets. Because she didn’t own it, the house wasn’t declared in their public assets. She argued that people who knew who she was would believe that she had fraudulently failed to declare all her assets as required by Russian law.
  • Strict liability still remains intact.
  • Another case of innuendo- strict liability at work.
  • Landscape different due to HR Art 10- freedom of speech
  • Defamation is about the balance between two protected rights art10 and art8
  • Strict liability is still ok.

F.    Publication

Final element for defamation- Publication

• If publication is only made to the claimant himself it doesn’t count because defamation is about protecting reputation and opinion so if its only made to you then it can’t affect that.
• Publication requires some activity from d himself but this isn’t always necessary.
  • publication here means no more than communication, even to a single person, a publisher is any person who communicates a defamatory meaning to a third party
  • a person may by conduct impliedly associate himself with words which cannot be shown to have been written or uttered by him- Hird v Wood= man sitting near a placard and pointing at it with his finger was held to be a publication
  • Traditionally every repetition of a defamatory statement is a new publication and creates a fresh cause of action in the person defamed (the multiple publication rule)
  • the publication must be made to a person capable of understanding the defamatory meaning. so if the defamatory statement is made in a foreign language the recipient must be able to understand it.
  • not necessary for c to prove that the publication was intentionally made, but only that it was the natural and probable consequence of his actions

Byrne v Dean 1937

• Imputation made through a piece of poetry posted on a noticeboard.
• D was secretary of golf club as he was the one who had control over the golf clubs’ noticeboard and what went up there and simply omitting to remove a defamatory statement may count as publication depending on the context.

• These general principles of publication modified by:

Defamation Act 2013 s.8.

8- Single Publication Rule

• This section applies if a person—
  1. publishes a statement to the public (“the first publication”), and
  2. subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.
• In subsection (1) “publication to the public “includes publication to a section of the public.
• For the purposes of section 4A of the Limitation Act 1980 (time limit for actions for defamation etc) any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication.
• This section does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.
• In determining whether themanner of a subsequent publication is materially different from themanner of the first publication, the matters to which the court may have regard include (amongst other matters)—
  1. the level of prominence that a statement is given;
  2. the extent of the subsequent publication.
• Where this section applies—
  1. it does not affect the court’s discretion under section 32A of the Limitation Act 1980 (discretionary exclusion of time limit for actions for defamation etc)…

Point of this act

• Every time a defamatory statement was made every publication was another publication e.g. if a newspaper sold 10,000 newspapers = 10,000 publications.
• Concern that a claimant by being crafty could effectively sue for defamation many years after the original defamation had taken place. This concern was addressed by s8. This says the first moment of publication is when there is publication and there’s a limitation period.