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DEEAMATION
Defamation is a complex and detailed tort. Below I will present only an outline of the law, which will be further
explained in class. Therefore, essential reading is as follows:
hinfield and Jolowic: on Tort, Eifteenth Edition, 1998, ch 12, p390-461; or
Michael A. Jones, Textbook on Torts, Seventh Edition, 2000, ch 13, p495-534.
DEEINITION
A defamatory statement is one which injures the reputation of another by exposing
him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of
right-thinking members of society (Sim v Stretch |1936] 2 All ER 1237, 1240, per
Lord Atkin).
WHAT HAS TO BE PROVED
Subject to the differences between the two types of defamation, libel and slander
(explained below), the claimant must prove:
(1) that the statement was defamatory,
(2) that it referred to him, and
(3) that it was published, ie communicated, to a third party.
The onus will then shift to the defendant to prove any of the following three
defences:
(1) truth (or justification),
(2) fair comment on a matter of public interest, or
(3) that it was made on a privileged occasion.
In addition, some writers put forward the following as defences in their own right:
(4) unintentional defamation, and
(5) consent.
DISTINCTION BETWEEN LIBEL AND SLANDER
The basic differences between the torts of libel and slander are as follows:
(1) Libel is a defamatory statement in permanent form, for example,
N writing,
N wax images (Monson v Tussauds Ltd |1894] 1 QB 671),
N films (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581),
N radio and television broadcasts (s16 Defamation Act 1952; ss166 and 201
Broadcasting Act 1990), and
N public performances of plays (s4 Theatres Act 1968).
Slander is a defamatory statement in a transient form.
(2) Libel is actionable per se whereas damage must be proved for slander,
except in four instances:
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N Where there is an allegation that the claimant has committed an imprisonable
offence;
N Where there is an imputation that the claimant is suffering from a contagious
disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS;
N Where there is an imputation that a woman has committed adultery or
otherwise behaved in an unchaste` fashion (Slander of Women Act 1891);
or
N Where there is an imputation that the claimant is unfit to carry on his trade,
profession or calling.
(3) Libel may be prosecuted as a crime as well as a tort, whereas slander is only
a tort.
EUNCTION OE JUDGE AND JURY
All actions for defamation must be commenced in the High Court, and it is one of
the few civil actions that are still tried with juries. The Civil Procedure Rules have
not removed this right:
Safewav plc v Tate |2001] The Times LR 25 January
It is the function of the judge to decide if the words were capable of being
defamatory in the eyes of a reasonable person: (a) If the judge rules that no
reasonable person would actually conclude that the words in question were
defamatory, the case will fail at that point; (b) If the judge rules that the words are
capable of being defamatory in the eyes of a reasonable person, the words will be
put to the jury and the judge will ask them to decide whether the words were
defamatory (Capital and Counties Bank v Hentv (1882) 7 App Cas 741 and Lewis v
Dailv Telegraph |1964] AC 234). A recent case on this issue is:
Alexander v Arts Council of hales |2001] The Times LR 9 April
Note that by s7 of the Defamation Act 1996, the court shall not be asked to rule
whether a statement is arguably capable, as opposed to capable, of bearing a
particular meaning or meanings attributed to it.
Juries also decide the amount of damages to be awarded to the claimant. It is well
established that jury awards for defamation are excessive, especially when
compared to judicial awards for personal injuries. The Court of Appeal now has the
power to substitute an award of damages instead of ordering a new trial in cases
where the damages awarded by a jury are excessive or inadequate (s8 Courts and
Legal Services Act 1990).
Cases to look up on the award of damages include: Rant:en v Mirror Group
Newspapers |1993] 4 All ER 975, John v Mirror Group Newspapers Ltd |1996] 2
All ER 35 and Clark v CC of Cleveland Constabularv |1999] The Times LR 13
May.
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ESSENTIALS OE DEEAMATION
(1) WORDS MUST BE DEFAMATORY
The statement must be defamatory. According to Lord Atkin, the statement must
tend to lower the claimant in the estimation of right-thinking members of society
generally, and in particular cause him to be regarded with feelings of hatred,
contempt, ridicule, fear and disesteem (Sim v Stretch |1936] 2 All ER 1237).
Mere abuse
Vulgar abuse is not defamatory. Mansfield CJ stated 'Eor mere general abuse
spoken no action lies (Thorlev v Kerrv (1812) 4 Taunt 355 at 365, and also Pollock
CB and Wilde B in Parkins v Scott (1862) 1 H&C 153 at 158, 159).
hinfield & Jolowic: (p406) states that spoken words which are prima facie
defamatory are not actionable if it is clear that they were uttered merely as general
vituperation and were so understood by those who heard them. Eurther, the same
applies to words spoken in jest (Donoghue v Haves (1831) Hayes R 265).
Innuendo
Sometimes a statement may not be defamatory on the face of it but contain an
innuendo, which has a defamatory meaning. Such a statement may be actionable.
The hidden meaning must be one that could be understood from the words
themselves by people who knew the claimant (Lewis v Dailv Telegraph |1964] AC
234) and must be specifically pleaded by the claimant.
(2) REFERENCE TO THE CLAIMANT
The statement must refer to the claimant, ie, identify him or her, either directly or
indirectly.
Defamation of a class
If a class of people is defamed, there will only be an action available to individual
members of that class if they are identifiable as individuals. 'If a man wrote that all
lawyers were thieves, no particular lawyer could sue him unless there was
something to point to the particular individual (per Willes J in Eastwood v Holmes
(1858) 1 E&E 347 at 349).
If the defendant made a reference to a limited group of people, eg the tenants of a
particular building, all will generally be able to sue (Browne v DC Thomson (1912)
SC 359.
This issue was considered by the House of Lords in Knupffer v London Express
Newspaper Ltd |1944] AC 116.
Unintentional defamation
At common law it was irrelevant that the defendant did not intend to refer to the
claimant. Section 4 of the Defamation Act 1952 provided a special statutory
defence in cases of unintentional defamation`, by allowing the defamer to make an
offer of amends` by way of a suitable correction and apology and may include an
agreement to pay compensation and costs. The defence is now contained in ss2-4 of
the Defamation Act 1996, which was an attempt to modernise the law. The person
accepting the offer may not bring or continue defamation proceedings. If the offer
to make amends fails, the fact that the offer was made is a defence and may also be
relied on in mitigation of damages.
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A publication made malicously` (spitefully, or with ill-will or recklessness as to
whether it was true or false) will destroy the defence of unintentional defamation.
(3) PUBLICATION
The statement must be published, ie communicated, to a person other than the
claimant.
Eor example, dictating a defamatory letter to a typist is probably slander (Salmond
and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a
third party it is libel. However, in Brvanston Finance v De Jries |1975] QB 703 it
was held that where a letter was written to protect the interests of the business there
was a common interest between the employer and employee, and so a letter dictated
to a secretary in the normal course of business was protected by qualified privilege.
Communication between husband and wife
A statement made to one`s own spouse will not be published` for the purposes of
defamation (hennhak v Morgan (1888) 20 QBD 635 at 639). Communication
between husband and wife is protected as any other rule 'might lead to disastrous
results to social life.
Distributors
The defence sometimes known as innocent dissemination` is designed to protect
booksellers and distributors of materials which may contain libellous statements.
The law is now contained in s1 of the Defamation Act 1996.
A person has a defence if he shows that he was not the author, editor or commercial
publisher of the statement; he took reasonable care in relation to its publication; and
he did not know, and had no reason to believe, that what he did caused or
contributed to the publication of a defamatory statement (s1(1)). A person shall not
be considered the author, editor or publisher of a statement if he is only the printer,
producer, distributor, or seller of printed material containing the statement, or the
broadcaster of a live programme (s1(3)).
An internet service provider was held not to be the publisher, within the meaning of
s1, of defamatory statements posted on a newsgroup, and therefore was entitled to
rely on s1(1)(a). However, on the facts the claimant had notified the defendants that
the posting was defamatory and requested that they remove it, but they had refused
to do so. Therefore, they could not rely on the defence in s1(1): Godfrev v Demon
Internet Ltd |1999] 4 All ER 342.
Consent
Consent of the claimant to the publication of a statement, by showing other people
defamatory material which the defendant meant for the claimant only, will create a
situation in which technically there has been no publication (Hinderer v Cole (1977)
(unreported) defamatory letter sent by the defendant to the claimant was shown by
the claimant himself to third parties).
Eor further information look up Chapman v Lord Ellesmere |1932] 2 KB 431; Tadd
v Eastwood |1985] ICR 132.
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DEEENCES
(1) TRUTH (OR 1USTIFICATION)
Only false statements are actionable, so if the statement made about the claimant is
true, there can be no action for defamation. The burden of proof is on the defendant
to prove that the statement made is true, rather than on the claimant to prove that it
was false.
If a number of imputations are made by the defendant but only one action is brought
by the claimant in respect of them, then, by virtue of s5 of the Defamation Act 1952,
a defence of justification shall not fail by reason only that the truth of every charge
is not proved if the words not proved to be true do not materially injure the
claimant`s reputation, having regard to the truth of the remaining charges.
The Rehabilitation of Offenders Act 1974 provides that certain criminal convictions,
depending upon their seriousness, are to become spent` after certain periods of time
have elapsed, and treated as if they had never happened. Section 8 provides that in
defamation actions which are based on allegations that the claimant has committed
offences which would otherwise be spent`, justification can be used as a defence
except where the publication was made with malice (ie, spitefully, or with ill-will or
recklessness as to whether it was true or false).
(2) FAIR COMMENT ON A MATTER OF PUBLIC INTEREST
The defence of fair comment is frequently relied upon by the press, as it is designed
to protect statements of opinion on matters of public concern. Lord Esher, in
Merivale v Carson (1887) 20 QBD 275, stated that the test was:
'Would any fair man, however prejudiced he may be, however exaggerated
or obstinate his views, have said that which this criticism has said of the
work which is criticised?
However, Lord Porter, in Turner v MGM Pictures |1950] 1 All ER 449 at 461, said
that he would adopt this test, but substitute honest` for fair` in order to avoid the
suggestion that the comment must be reasonable. See also Lord Nicholls in
Revnolds v Times Newspapers |1999] 4 All ER 609 (below).
The defence only applies to comments made on matters of public interest, eg
comments on works of literature, music, art, plays, radio and television; and also the
activities of public figures.
A publication made malicously` (spitefully, or with ill-will or recklessness as to
whether it was true or false) will destroy the defence of fair comment.
Where there are imputations partly based on fact and partly expressions of opinion,
the defence of fair comment will not fail merely because the truth of every
allegation of fact is not proved if the expression of opinion is fair comment having
regard to such of the facts alleged or referred to in the words complained of as are
proved (s6 of the Defamation Act 1952).
(3) PRIVILEGE
(a) Absolute
There are certain occasions on which the law regards freedom of speech as essential,
and provides a defence of absolute privilege which can never be defeated, no matter
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how false or malicious the statements may be. The following communications are
absolutely privileged` and protected from defamation proceedings:
N Statements made in either House of Parliament. However, by s13 of the
Defamation Act 1996, this privilege can be waived.
N Parliamentary papers of an official nature, ie, papers, reports and
proceedings which Parliament orders to be published (s1 of the
Parliamentary Papers Act 1840). Extracts from parliamentary papers are
covered by qualified privilege (s3).
N Statements made in the course of judicial proceedings or quasi-judicial
proceedings.
N Eair, accurate and contemporaneous reports of public judicial proceedings
before any court in the UK (s3 of the Law of Libel Amendment Act 1888).
The same privilege was extended to radio and television broadcasts of
judicial proceedings in similar circumstances by s9(2) of the Defamation Act
1952.
N Communications between lawyers and their clients.
N Statements made by officers of state to one another in the course of their
official duty (Chatterton v Secretarv of State for India |1895] 2 QB 189).
(b) Qualified
Qualified privilege operates only to protect statements which are made without
malice (ie, spitefully, or with ill-will or recklessness as to whether it was true or
false).
The judge must decide whether the situation is covered by qualified privilege. If so
the jury must then decide whether the defendant acted in good faith or whether there
was malice.
The following communications will be protected by qualified privilege`:
N Statements made in pursuance of a legal, moral or social duty, but only if the
party making the statement had an interest in communicating it and the
recipient had an interest in receiving it.
N Statements made in protection of an interest, eg public interests or the
defendant`s own interests in property, business or reputation.
N Eair and accurate reports of parliamentary proceedings.
N Eair and accurate reports of public judicial proceedings in the UK, eg when
the report is not published contemporaneously with the proceedings.
N Statements privileged by s15 of the Defamation Act 1996, which applies to
statements made in newspapers and radio and television broadcasts. There
are two categories:
(i) Statements having qualified privileged without explanation or
contradiction: see Part I of Schedule 1 to the Act.
(ii) Statements having qualified privilege subject to explanation or
contradiction: see Part II of Schedule 1 to the Act.
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A case on qualified privilege specifically mentioned in the ILEx Part II syllabus is:
Revnolds v Times Newspapers |1999] 4 All ER 609.
This defence was recently tested in:
Loutchanskv v Times Newspapers (QBD, 27 April 2001).
CRITICISM OE DEEAMATION LAW
See separate details of the proposals for reform made by the Eaulks Committee
(Cmnd 5909) in 1975.
DEEAMATION ACT 1996
Among other things, the 1996 Act:
N Modernised the law on innocent dissemination (s1).
N Reformed the offer of amends` defence for newspapers where the libel was
unintentional and the newspaper is willing to publish a suitable correction
and apology, with damages assessed by a judge (ss2-4).
N Provides a new fast-track procedure for the summary disposal of defamation
cases, with judges assessing damages of up to 10,000 in these cases and
dismissing claims which have no realistic prospect of success (ss8-10). This
will reduce the cost of litigation. Part 53 of the Civil Procedure Rules gave
effect to this reform as of 28 Eebruary 2000.
N Reduced the limitation period for defamation and malicious falsehood to one
year, with a discretion for the court to allow later action to proceed if
reasonable.
See the text of the Act provided in class.