Defamation: Timon Hughes-Davies
· Common law tort relating to a person’s good name – their reputation and how other’s publicly use them
· Considered to have value in the eyes of the law, not about emotional distress however. Fact you are upset may be taken into account when deciding a remedy, but the law doesn’t recognised emotional upset in itself.
· Does recognise everyone has the right to a good name which is something of value, and if this is damaged you’re entitled to a legal remedy.
· Any ‘statement’ about a person which is capable of damaging their reputation is, prima facie, defamatory and may give rise to a claim. Truth is a defence, and the onus is on the maker of the statement to prove the truth of the statement, not upon the claimant to prove that it is false.
· E.g. saying Jimmy Saville is a predatory paedophile this damages his good name – it is true but this is only a defence and the onus is one the maker of the statement to prove the truth of the claim, not on the claimant to show it is false.
· Claimant wins if you can’t prove the truth of your defamation – burden of proof on the defendant.
· Claims in defamation are not confined to statements made in verbal form. Any representation is capable of founding a claim, if it could be understood as defamatory to the claimant – drawings and photographs are included.
· Two forms: Libel and Slander
o Difference between statements made in permanent or transitory form
o Statements are usually slander as words after spoken only exist in one’s memories.
o But libel focuses on words in their permanent form e.g. published articles, recordings – transforms the tort from slander to libel.
The Defamation Act 2013
· In 2013, the Defamation Act 2013 was passed; most of the provisions came into force on 1st January 2014.
· The Defamation Act did not fundamentally change the law relating to defamation: it does not change the nature of what is a defamatory statement or the legal rules relating to the true meaning of words and whether they would lower the claimant in the eyes of ordinary persons.
· What the Defamation Act did address were some of the criticisms that have been made of the English law of defamation and the perception that English law was ‘claimant friendly’: that litigants were using English courts to stifle free speech, both within England and Wales and internationally.
· A major change, but not to the fundamental basics to the law – common law defences abolished in favour of statutory defences – didn’t change the nature of a defamatory statement
· The Defamation Act also changed the defences available to the defendant. In particular, the common law defences of justification, fair comment and the Reynolds defence have now been put on a statutory footing and the common law rules abolished. However, as the explanatory notes to the Act make clear, these new defences of truth, honest opinion and public interest are based on, and intended to reflect, the previous common law defences.
· What does defamation mean? Statement oral written or otherwise which is defamatory:
· Meaning of Defamation
§ A statement, whether oral, written or otherwise, is defamatory if it has the effect of exposing another to ‘hatred, ridicule or contempt’; or lowering the claimant in the estimation of right thinking members of society.
§ The law is, that a publication without lawful excuse, which tends to hold an individual up to hatred, ridicule, or contempt, is a libel. Whether the publication held up the plaintiff to hatred, ridicule, or contempt, is a question for the jury.
§ Whether there is an excuse or not is, in the first instance, a question of law. There is, indeed, a rule which I may state to the jury, that it is allowable to discuss matters of public interest in the columns of the newspapers, but it must be done bona fide and without malice, or anything beyond what is necessary for public discussion.
§ Wilson v Reed 175 Eng. Rep. 1001; (1860) 2 F & F 149, 150 (Hill J).
§ Hatred, ridicule and contempt – old definition but a more modern comes from Lord Atkin in Simm v Stretch
§ I do not intend to ask your Lordships to lay down a formal definition, but 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? Sim v Stretch [1936] 2 All ER 1237, 1240 (Lord Atkin).
In order to make out the tort the claimant has to show:
§ Elements of the Tort
· A statement, by way of printed or spoken words or otherwise;
· Which causes or is likely to cause serious harm to the reputation or good name of the claimant OR serious financial loss to a commercial organisation (special damages are financial).
· Published to a third party; can say whatever you want to someone without defaming them, but if someone else is in the room it would be published with a third party and capable of being slander
· Serious harm – Thornton v Telegraph Media Group held there must be a ‘threshold of seriousness, to as to exclude trivial claims’, ‘interpreted consistently with article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms’. This is now enshrined in the Defamation Act 2013 s1 which states there must be serious harm to the reputation of a body that trades for profit which must cause the body ‘serious financial loss’.
· Without justification, privilege or other defence
· The requirement that the statement causes ‘serious harm’ or ‘serious financial loss’ has been introduced by the 2013 Act. Formerly, harm was presumed in the case of libel. Serious financial loss must be assessed in the context of the business – protective of free speech especially over corporations, who protect their brand to the full extent of the law.
· E.g. Mcdonalds suing the couple handing out defamatory leaflets – this would now be thrown out of court as Mcdonald’s could not prove serious financial loss.
The Statement
· Statements may be verbal or non-verbal; and transitory or permanent. As a general rule, written words will found a claim in libel; while spoken words will found a claim in slander. As a rule, a claim in slander is more difficult for the claimant to make out.
· Film:
· Youssoupoff v Metro-Goldwyn-Mayer (1934) 78 Sol Jo 617
· One of the characters in a film about Rasputin found defamatory to an actual Russian princess.
· Waxworks: Monson v Tussauds Ltd (1894) 1 QB 691
· Photographs: Plumb v Jeyes Sanitary Compound Co. Ltd (The Times, 11/4/1937);
· Capable of being defamatory (brings in concept truth is only a defence)
· Music: Cosmos v BBC (unreported)
· Drawings: Tolley v Fry & Sons [1931] AC 333
o Libel refers to publication in a permanent form, as printed or written words; also:
Film: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 78 Sol Jo 617
o Rasputin film – killed by Youssoupoff in 1917. Y’s wife brought the claim, over the film’s depiction of Rasputin seducing a Russian Princess (for the film called Princess Natasha) which was argued to be a representation of her.
o Held for it to be claimed a woman was seduced when she hadn’t been was capable of being defamatory as she would be ‘shunned and avoided’.
o LJ Slesser ‘In my view, this action…was properly framed in libel. There can be no doubt that, so far as the photographic part of the exhibition is concerned, that is a permanent matter to be seen, by the eye and is the proper subject of an action for libel, if defamatory’.
Waxworks: Monson v Tussauds Ltd (1894) 1 QB 691
o Everyone believed the claimant to be a murderer and Madame Tussauds placed his waxwork next to the House of Horrors where murderers were kept. Sued as placement suggested his guilt which was not proved beyond reasonable doubt.
o Made the test of libel one that looks to the permanence or transience of a ‘statement’
o LJ Lopes: ‘Libels are generally in writing or printing, but this is not necessary; the defamatory matter may be conveyed in some other permanent form. For instance a statute, a caricature, an effigy, chalk-marks on a wall, signs or pictures may constitute a libel’
Photographs: Plumb v Jeyes (unreported)
o Policeman sued claiming the photograph and caption advertising a foot bath – argued people would believe he had smelly feet and won!
o Cosmos v BBC – over Music
o Film about holiday camp run by Cosmos, tone of which was that it was not a good place to stay, over the segment they played the music of TV show Colditz (about a prisoner of war camp). Cosmos argued this suggested their establishment was equal to a prisoner of war camp. Won claim – music can be defamatory.
Drawings: Tolley v Fry & Sons [1931] AC 333
o Amateur golfer – had to not receive any money for playing golf, couldn’t be in adverts, etc
o But as he appeared in advert and held to not taken any payment for this.
o Held right thinking people would assume he was being payed for this and as an amateur had taken money for this. Would lower an amateur sportsperson if they believed he’d taken money for the game. Won claim.
o Cosmos etc showed words aren’t necessary.
Statutory provisions for when spoken words are delivered to a large audience:
o Purposes of libel and slander treated as publications for word and permanent form.
Broadcast words and words spoken: Broadcasting Act 1990 s.166(1)
o 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. Someone’s writes a play – written form.
o Theatrical Performances: Theatres Act 1968 s.4(1)
o 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.
Slander v Libel: The difference
Slander refers to words spoken or in a transitory form
Main difference is slander to be proved must cause ‘special damage’.
Libel is actionable per se, but slander requires this proof of special injury.
In Thorley v Lord Kerry CJ Mansfield found no principle justification for the distinction between libel and slander – as a rule slander is taken less seriously, hence the requirement of special damages.
The Porter Committee (Report of the Committee on the Law of Defamation) 1948 stated of the distinction ‘Slander is often trivial, not infrequently good-tempered and harmless, and in that form commonly enough a topic of conversation. If all slander were actionable per se, the scope for trivial but costly litigation might be enormously increased…A change in the law in England and Wales at the present date would, we think, be likely to encourage frivolous actions’.
Contrastingly the Faulks’ Committee (Report of the Committee on Defamation 1975) considered this fear ‘unfounded’ stating ‘the distinction between libel and slander is entirely attributable to historical accident’ and ‘renders this part of the law unreasonable and unnecessarily complicated’
Special Damage
The main distinction between slander and libel is that, for an action of slander to succeed, the claimant must show ‘special damage’, in that they have suffered some loss as a result of the slander; or that the statement fell within the cases of slander actionable per se.
Special damage must have an economic value: that people might shun or ostracise the claimant is not special damage, in that the society of others has no economic value.
In cases of libel – where the statement is in permanent form – the damage must be serious (s.1 Defamation Act 2013), but does not need to have an economic or material value.
Roberts v Roberts (1864) 5 B & S 384; 122 ER 874
The defendant said that the plaintiff was ‘as great a whore as any in the town of Liverpool’. This is clearly defamatory; and would cause serious harm to the reputation of the person defamed. However, it could not support a claim in slander. Serious accusation, suggesting they’re a prostitute causing right thinking people to think the less of her, causing serious harm to her defamed reputation but see Cockurn CJ’s quote below.
Specific categories to show damage is presumed.
I think that to prevent a woman whose character for chastity is assailed from bringing an action for the purpose of vindicating it is cruel; but, as the law at present stands, such an action is not maintainable unless it be shewn that the loss of some substantial or material advantage has resulted from the speaking of the words. (1864) 5 B & S 384, 389 (Cockburn CJ). Published a statutory act dealing with this instead.
Extent of Special Damage
Where the statement is repeated, is the original maker of the statement liable for the damages that flow from its repetition?