DEFAMATION

The tort with a BAD reputation!

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WHY SO BAD?

Too much burden on Defendant Complexity of law The ‘Chilling Effect’ on debate. See

recent scientific research cases e.g. Singh - addressed in 2013 Act?

Libel Tourism- will new Act make a difference?

‘A Town called Sue’

WORTH REMEMBERING..

Defamation actions are brought to protect reputations so…

People will sue even IF the information is TRUE

See – e.g. Lance Armstrong, Jeffrey Archer, Jonathan Aitken, Liberace.

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DEFAMATION ACT 2013

Is this the ‘cure’ for all the ‘faults’ in the law prior to 1st January 2014?

Read the various views and opinions Act is now in force and applies to all

material published after 1st Jan 2014. Read the Act online plus consultation

and reviews

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What IS Defamation?

‘…the publication of a statement which reflects on a person’s reputation and tends to lower him in the eyes of right-thinking members of society generally

Or Tends to make them shun or avoid

him’

SOME RECENT CASES

Cairns v Modi - a tweet McAlpine v Bercow tweet + emoticon

Cruddas v Calvert & Others

Thornton v Telegraph Media

Flood v Times Newspapers 6

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Elements of Defamation The statement must be defamatory

and

It must refer to the claimant (i.e. identify him in some way) and

It must be published i.e. communicated to at least one other person apart from the claimant

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WHO CAN SUE?

Any living individual – an action dies with the claimant/subject of the material

Companies in respect of their business reputation and also directors of companies if comments reflect on them personally

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And those who can’t….

BUT NOT local authorities, political parties, state corporations, trade unions or unincorporated associations

See Derbyshire County Council v Times Newspapers 1993 & see comments of Lord Keith

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DISTINCTION BETWEEN LIBEL & SLANDER

Libel is the permanent form Slander is the non-permanent

(normally spoken) form What is permanent? – books, anything

printed, film, radio, TV, theatre performance, sculpture or artwork therefore

ANYTHING we deal with as media organisations is LIBEL

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DEFAMATION AND MALICIOUS FALSEHOOD

Closely related but NOT the same BUT something defamatory may also

come under heading of Malicious Falsehood. However, there must be an intention to cause loss for MF

NO Intention required for defamation

Cases to look at

Joyce v Sengupta 1993

Thornton v Telegraph Media Group 2010

Cruddas v Calvert & others 2013

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WHAT IS DEFAMATORY?

Many things – words/phrases change meaning over time

Even the definition is difficult Who are the right thinking members of

society? Who is the reasonable reader/watcher/hearer?

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Roles of Judge and Jury

Note there have only been one or two jury trials in last few years (e.g.Frankie Boyle).

New Act states that juries will only be used on rare occasions.

So Judge will now hear and decide case. Judge has to give reasons for decision – juries did not!

WHY the reduction in jury trials?

Their use made trials longer and more costly e.g. See comments of SC in Spiller v Joseph 2010

Trials and issues very complex

BUT could a jury serve a useful purpose? What do YOU think?

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REQUIREMENT OF SERIOUS HARM

This is an important new requirement for the claimant.

Must show material has or is likely to cause serious harm to reputation of claimant

For trading bodies this means serious financial loss

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Construction of words used

2 issues to consider a. what is the ‘ordinary & natural

meaning’? May be the literal meaning or something obvious – reading between the lines

‘Bane & Antidote’ - take material as a whole – Charleston v News Group Newspapers

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Construction continued… B. Innuendo or implication Must be some hidden meaning –

Tolley v Fry & Sons Ltd 1930 Baturina v Times Newspapers Ltd

[2011] 1 WLR 1526 Juxtaposition – Monson v Tussauds

[1894] 1 QB 671

INNUENDO CONTINUED

If statement is capable of more than one meaning the claimant MUST be able to show that people would take the defamatory meaning as the true one – Important!

Is the material’ mere vulgar abuse’?

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The advert for ‘Tolley’

The Caddy to Tolley said ‘Oh Sir,Good Shot Sir! That ball see it go, Sir.My Word how it fliesLike a cartet of FrysThey’re handy, They’re good and priced low, sir.’

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What is the claimant accused of?

‘Chase’ levels 1 – 3Level 1 – the claimant is guilty of a serious offenceLevel 2 – there were grounds to suspect him of something seriousLevel 3 – there were grounds to investigate the matter – See Flood 2012

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CLAIMANTS Must be identifiable – may be

tricky Care must be taken in reports-

enough material to identify the correct person!

King v Dog World (2003) Can you defame a group? Possibly

but it all depends on the size of the group

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PROBLEMS WITH THE INTERNET

Responsibilities of ISPs – new rules under s.5 of Act

Mumsnet case Applause Store Productions & Firsht v

Raphael (2008) - Facebook case Taking material down and the

‘publication rule’ ‘John Doe’ & ‘Spartacus’ orders