Defamation
- Elliot Tierney
- Jul 27, 2023
- 6 min read
Updated: Jul 31, 2023
Defamation protects the claimants' reputation (how the claimants is perceived in society) from being damaged by what the defendant has said.
Reputation vs Free Speech:
Defamation law creates a conflict between freedom of speech and the law imposing limits on what we can say that might harm another’s reputation. The law seeks to balance these.
Types of Defamation:
Libel:
Statements made in permanent form. EG: in writing
Capable of causing ongoing harm.
Slander:
Statements made in impermanent form. EG: spoken (non-recorded)
Unlike libel, slander often requires proof of financial loss. However, slanderous allegations of serious criminality or that the claimant is unfit for their job does not require them to prove they have suffered a financial loss.
Requirements for Defamation:
Defamatory Statement:
A defamatory statement is one which is potentially harmful to the claimants' reputation. If the statement made by the defendant would lower the estimations of the claimant in the minds of right-thinking members of society, the statement is defamatory.
In Sim v Stretch, C had a housemaid for a limited time. When C left, they entered service to D. D sent a telegram to C. C claimed that the telegram included defamatory allegations (implied financial difficulties of C). The court dismissed C’s claim.
The statement must cause ‘serious harm’ to the claimant. [1] This is essentially an arbitrary decision left to the judge.
The context in which the statement is made, and to whom it was made to, must be accounted for too, since there may be an implied meaning behind the defendant's explicit language.
In Lewis v Daily Telegraph, DT reported (truthfully) that L was being investigated for fraud. L alleged that DT had suggested that there was not only suspicion, but also guilt.
Defamation sometimes extends beyond reputational harm where the statement causes the claimant other harm / has a negative effect on their perception or treatment. [2]
Referring to C:
While the defendant may refer to the claimant explicitly, they could also refer to them without their name. So long as the claimant can be identified from what has been said by the defendant, the claimant can bring a claim. [3]
It is not important how the defendant intended the statement to be understood, but how reasonable people would understand what has been said. [4]
In Newstead v LEN, LEN referred to the accused in a bigamy trial as ‘Harold Newstead, thirty-year-old Camberwell man’ in their publication. N (another man fitting the description) brought an action against LEN, claiming for libel. CA held LEN liable as a reasonable person may think they were referring to N.
Where D’s statement is aimed towards a group, each individual may be able to bring a claim. However, the bigger the group, the less likely the statement was referring to the claimant(s), meaning their claim would be more likely to fail.
Communication:
The defendant's statement must be communicated to another person. If the statement is not communicated, there cannot be any damage to the claimants' reputation.
Communication between matrimonial partners cannot be defamatory.
Unintended communication is actionable only if it was reasonably foreseeable that it would be heard by another person.
Some statements, such as newspaper articles, may have multiple publishers. For example, for newspaper articles, the Author, Editor, Newspaper Corporation, Printer etc. are all involved in communication. Anyone involved in the dissemination / distribution of information may be liable too. [5]
Ability to Sue:
(Live) Human people.
Corporations, only if they have suffered / likely suffer serious financial harm. [6]
Public bodies and political parties cannot sue (individual politicians may).
Defences to Defamation Claims:
Truth: [7]
A statement doesn’t need to be false to be defamatory. If a statement is defamatory but true, it is justified.
The burden of proof is on the defendant: it is not for the claimant to prove the statement is untrue, but for the defendant to show it is substantially true.
The general meaning / content of the defamatory statement must be true. The defendant cannot show that the statement is true on an alternative reading.
In Newstead v LEN, (see facts above) an ordinary reading of the headline in LEN’s newspaper would have intensified N, not the other person. The defence could not be raised as LEN could not show that they meant of the other Harold Newstead on an alternative reading of the headline.
In Lewis v Daily Telegraph, (see facts above) the headline written by DT about L being investigated implied he was acting in a suspicious / guilty manner. An ordinary person would have gotten the same impression of L regardless of whether DT had written that he was guilty or suspected of being guilty.
Privilege: [8]
Privilege covers situations where free speech should be protected. Based on the fear that the threat of defamation would impede people from speaking freely where they ought to.
Those speaking from a privileged position have immunity from liability.
Absolute Privilege:
The defendant will always be immune if they have absolute immunity.
Situations / Examples:
Parliamentary proceedings
Reports published or ordered to be published by Parliament
Judicial proceedings
Contemporaneous reports of judicial proceedings
Statements made by or to an investigator during a criminal investigation
Qualified Privilege:
Qualified privilege grants immunity only if the defendant was not acting maliciously (not believing or being careless as to the truthfulness of their statement).
Duty-interest Test:
If the defendant was under a duty to communicate the information and the recipient had an interest in receiving it, the defendant is not liable.
In Watt v Longsdon, W’s boss wrote to L (company director), stating that W was a drunk, dishonest and immoral. L showed the letter to the chairman of the board of directors and W’s wife.
As L had a duty to pass on the information and the chairman had an interest in reading the letter, there was qualified privilege. However, there was no privilege in relation to the wife as L had no duty to disclose the letter to her.
Other Situations / Examples:
Public Interest: [11]
Where a statement was on a matter of public interest and the defendant reasonably believed that publishing the statement was in the public interest, they will not be liable.
In determining the defendant's reasonable belief, considerations are to be made as to what other options the defendant had at the time. EG: not publishing, waiting for evidence, contacting the claimant etc.
This defence is often used by journalists who cannot prove truth without compromising their source.
Honest Opinion: [12]
D made a statement of opinion (anything that is not fact, including predictions).
In BCA v Singh, S stated that there was ‘not a jot of evidence’ for the effectiveness of treatments supported by BCA. The court held that S made a statement of honest opinion as there was not a jot of worthwhile or credible evidence supporting BCA.
Elements:
The defendant truly held that opinion.
The defendant's statement indicated the basis of their opinion.
An honest person could have held this opinion on the basis of the facts in existence too.
Innocent Dissemination: [13]
Available where the defendant isn’t an author, editor or commercial publisher of a defamatory statement, provided that they took reasonable care and didn’t know and had no reason to believe that they were contributing to the publication of defamatory statement.
Usually used by printing presses and TV channels showing live broadcasts.
Operators of websites on which defamatory material is published by someone else are not liable, unless the claimant complained to the defendant about the statement and the defendant failed to respond property. [14]
Offer of Amends: [15]
An offer of amends is an offer to:
Make a suitable correction of the statement and an apology to the claimant.
To publish the correction and apology in a reasonable and practicable manner.
To pay such compensation and costs as agreed or as may be determined.
If the claimant accepts an offer of amends, they cannot claim under defamation. If the claimant does not accept the offer, the defendant has a defence, unless the defendant knew or had reason to believe the statement was false and defamatory and referred to the claimant.
If an amount of compensation cannot be decided between the parties, the courts may do this the same was as in defamation proceedings.
Relation to Other Wrongs:
Negligence:
Negligence is focused on the quality of the defendants' conduct, not any particular interest / harm suffered by the claimant.
Traditional torts, such as defamation, are aimed at protecting against particular harms.
Resources:
References:
[1] Defamation Act 2013 s1 [2] EG: allegations of illness, exposing C to ridicule, but not mere insulting / hurtful language. [3] EG: referring to ‘Elizabeth Windsor’ as ‘The Queen’ [4] EG: D may be referring to ‘Elizabeth I’ by calling her ‘The Queen’, however reasonable people would take this to mean ‘Elizabeth Windsor’ / ‘Elizabeth II’ [5] Note: Defence of ‘Innocent Dissemination’, Defamation Act 1996 s1 [6] Defamation Act 2013 s1 [7] Defamation Act 2013 s2 [8] Defamation Act 1996 s15 [9] Defamation Act 1996 s15 [10] Defamation Act 2013 s6 [11] Defamation Act 2013 s4; note Reynolds v Times Newspapers [2001] 2 AC 127 [12] Defamation Act 2013 s3 [13] Defamation Act 1996 s1 [14] Defamation Act 2013 s5 [15] Defamation Act 1996 s2-4
Cases Mentioned:
Sim v Stretch [1936] 2 All ER 1237
Lewis v Daily Telegraph Ltd [1964] AC 234
Newstead v London Express Newspaper Ltd [1940] 1 KB 377
Watt v Longsdon [1930] 1 KB 130
British Chiropractic Association v Singh [2010] EWCA Civ 350
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