Bachelor of Sharia and Law - Law of Tort II

DEFAMATION

Introduction

Defamation has been briefly defined by the leading tort expert Professor Winfield:

“Publication of a statement which tends to lower a person in the estimation of right-thinking

members of society generally, or which tends to make them ignore or avoid that person”

There are two types of defamation: libel and slander.

Libel covers statements made in some permanent form: this usually means printed or
written words, but also covers film, pictures, statues and effigies (sculptures). By statute
it includes radio broadcasts (the Defamation Act 1952) and the performance of plays
(Theatres Act 1968).

Slander applies to defamation made in a transitory form, such as spoken words, or

gestures.

Elements of defamation

To succeed in an action for defamation, the claimant must therefore prove three things:

• The statement complained of was defamatory;

• The statement referred to the claimant;
• The statement was published.

In the case of libel, merely committing the tort without a defence is sufficient for
liability, but with slander, a defendant will usually only be liable if the defamation has
caused the claimant special damage, usually in the form of financial loss, over and
above the injury to the claimant’s reputation.

Defamatory statements

Most of the original law on defamation comes from case law, rather than statute, so
there is no single definition of what ‘defamatory’ means.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 1

Bachelor of Sharia and Law - Law of Tort II

The legal academics McBride and Bagshaw in their textbook Tort Law (Longman, 2005).

They say that a statement is defamatory if reading or hearing it would make an

ordinary, reasonable person tend to:

• Think less well as a person of the individual referred to;

• Think that the person referred to lacked the ability to do their job effectively;
• Reject or avoid the person referred to; or
• Treat the person referred to as a figure of fun or an object of ridicule.

Their definition makes it clear that the important issue is not how the defamatory
statement makes the person referred to feel, but the impression it is likely to make on
those reading it.

Obvious examples of defamatory statements would be saying (falsely) that someone

was a thief, had been violent, or was corrupt, but over the years the courts have had to
deal with a very wide range of statements alleged to be defamatory.

Byrne v Deane (1937), the claimant was a member of a golf club, whose owners illegally
kept gambling machines on the premises. Someone reported them to the police, and
afterwards a poem was posted up in the club, implying that the claimant had been the
informant. He sued, and won the original case, but on appeal the courts held that the
suggestion was not defamatory, because a right-thinking member of society (or as it
might be expressed today, an ordinary, reasonable person) would not think less well of
someone for telling the police about criminal activity.

Jason Donovan v The Face (1998), the singer Jason Donovan successfully sued The Face
magazine for saying he was gay. He based his argument on the fact that he had always
presented himself as being heterosexual, and that The Face was therefore defaming him
by suggesting he had deceived the public about his sexuality.

Berkoff v Burchill (1996), the journalist Julie Burchill described actor Steven Berkoff as
‘hideous-looking’ and compared him to Frankenstein’s monster. The court argued that
although the kind of remarks made would not usually be defamatory, they become so
because the claimant earned his living as an actor, and therefore the words made him
an object of ridicule.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 2

Bachelor of Sharia and Law - Law of Tort II

Statement must refer to the claimant

As well as proving that the statement in question is defamatory, the claimant has to
show that an ordinary, reasonable reader or listener, including associates/friends of the
claimant, would take the statement as referring to him or her.

Where the claimant is named in the statement, this is not a problem, but there are cases
where the person referred to in a defamatory statement is not named. This can still be
defamatory if a reasonable person knowing the claimant would have thought the
claimant was referred to.

J’Anson v Stuart (1787) a newspaper referred to ‘a swindler’(someone who lies to get

your money), describing the person meant in the words ‘his diabolical(so evil)
character, . . . has but one eye, and is well known to all persons acquainted with the
name of a certain noble circumnavigator’. The claimant had only one eye, and his name
was very similar to the name of a famous admiral; he was able to prove that the
statement referred to him, even though his name was never mentioned.

Where a defamatory statement was intended to refer to a fictitious/untrue character, or

to someone other than the claimant, the defendant will be liable for defamation of the
claimant if a reasonable person would think the statement referred to the claimant.

The publisher can also be liable where the statement was intended to refer to someone
else, and was true of that person, but could be taken to refer to the claimant and was not
true of them.

Newstead v London Express Newspapers Ltd (1940). The newspaper had printed a
story saying that a Harold Newstead, described as a 30-year-old Camberwell man, had
been convicted of bigamy. This was in fact true of the Harold Newstead the paper was
talking about, but there was also another Harold Newstead living in Camberwell, who
was not a bigamist. The Court of Appeal noted that it is established law that liability for
libel does not depend on the intention of the defamer; but on the fact of the defamation
and Held that the reasonable persons would have understood the words complained of
to refer to the plaintiff;

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 3

Bachelor of Sharia and Law - Law of Tort II

Defaming a group

Where a defamatory statement refers to a class or group of people (such as ‘All

footballers are greedy’ or ‘British politicians are corrupt’), it is not usually possible for
that group of people to sue for defamation as a group, nor for one member of a group to
sue on the grounds that the remark libels them personally.

Knupffer v London Express Newspapers Ltd (1944), the defendants published an article
describing the Young Russia party, a group of Russian émigrés, as a Fascist
organisation. The group had approximately 2,000 members. The claimant, a Russian
emigrant living in London, sued on the basis that, as a member of the group, the
statement defamed him personally. The House of Lords refused his claim, on the
grounds that the statement was aimed at a large class of people, and nothing in it
singled him out.

However, where the group referred to is so small that the statement could be taken to
refer to each and every one of them, one or all of them may be able to successfully sue.

So while it is not dangerous to say ‘All lawyers are useless’, it may be a different story
to say ‘All lawyers employed at Bodgit Firm are useless’.

There is no set number above which a class of people will be considered too big for one
of the members to be able to sue for a remark aimed at all of them. Each case will
depend on the facts and, in particular.

Riches v News Group (1986), the News Group published The defendant published
serious defamatory allegations against the ‘Banbury CID’, although without mentioning
specific officers by name. Ten members of the Banbury CID successfully sued the paper
for damages.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 4

Bachelor of Sharia and Law - Law of Tort II

The statement must be published

Most high-profile defamation cases involve publication of untrue statements in

newspapers, magazines or books, or sometimes on radio or television.

However, the law covers much more than this.

For the purposes of establishing a case for defamation, a statement is considered to have
been published when the defendant communicates it to anyone other than the claimant,
or the defendant’s husband or wife.

A defendant may escape liability if they can prove that it was not possible to foresee
that publication would occur.

Huth v Huth (1915), a letter was sent in an unsealed envelope by the defendant to the
claimant (defendant's children, implication that the children were illegitimate). The
butler secretly read the letter without the claimant’s permission. This was not treated as
a publication, as the defendant could not have foreseen the butler’s behaviour, so he
was not liable for defamation.

Communication to a third party was foreseen by the defendant and therefore amounted
to publication.

Theaker v Richardson (1962), The defendant had written a letter stating that the
claimant was ‘a lying, low down brothel keeping whore and thief’. He put the letter in a
sealed envelope and posted it through the claimant’s door. The claimant’s husband
opened the envelope and the defendant was held liable for defamation as he had
foreseen that the letter might be opened by some person other than the claimant.

Proof of damage

In a libel action, commission of the tort is enough; it is not necessary to prove damage.

To succeed in an action for slander, the claimant must usually prove that the slander
has caused some actual damage, generally financial loss (sometimes known as ‘special
damage’) over and above their loss of reputation.

However, there are a few exceptions where the slander will be actionable per se (i.e.
without the need to prove damage). These exceptions are where the slander suggests
any of the following:

That the claimant has committed an imprisonable offence.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 5

Bachelor of Sharia and Law - Law of Tort II

That the claimant has a contagious disease of a kind which might lead to their exclusion
from society – AIDS would be an obvious example

That the claimant is unfit for their trade, profession or business, or any appointment
they hold.

A case which raised the issue of causation of damage in slander was McManus v
Beckham (2002).

McManus v Beckham (2002):

The defendant in this case was the pop star Victoria Beckham, and the defendant was
the owner of a shop which sold autographed souvenirs. Mrs Beckham was in the
shopping centre where the shop was situated, when she spotted a display of
photographs of her husband, David Beckham.

According to the defendant, she loudly declared the autographs on them to be a fake,
and told three customers that the defendant was in the habit of selling fakes, advising
them not to buy anything from the shop.

The incident was later reported by the newspapers, and the defendant sued Mrs
Beckham for slander, alleging that her words had done severe damage to his business.
Mrs Beckham argued that this claim should be struck out, because most of the damage
had been done by the newspaper reports, and these broke the chain of causation so she
could not be held responsible for damage done by third parties.

The Court of Appeal rejected this argument, and said that she could be liable if she
realised that the ‘sting’ (in other words, the main message) of her remarks was likely to
be reported in the papers, or if a reasonable person in her position would have seen that
risk, and that the result would be damage to the defendant’s business.

The dispute was eventually settled out of court.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 6

Bachelor of Sharia and Law - Law of Tort II

Defences

Volenti

Applies where the claimant has consented to the information being published.

Justification / Truth

If a defamatory statement is true, the defendant will have a defence, so long as they can
prove it. It is not necessary to prove that every single detail of the statement is true, so
long as, taken as a whole, it is accurate.

Alexander v North Eastern Railway Co (1865), the defendants had said that the
claimant, when convicted of a criminal offence, had been offered alternative sentences
of a fine or three weeks’ imprisonment. In fact he was offered a fine or two weeks’
imprisonment, but the defendants successfully pleaded justification.

Fair comment:

A defendant will have a defence if it can be proved that the statement made was fair
comment on a matter of public interest. For the defence of fair comment to succeed, the
defendant must prove the following:

The subject was of public interest.

• The words must be a comment and not a statement of fact.

• The facts on which the comment is based must be true, or if untrue, subject to
privilege.
• The comment must be an honest and relevant expression of the defendant’s
opinion.
• It must be made without malice.

Absolute privilege:

This defence protects the makers of certain defamatory statements because the law
considers that, in the circumstances covered by the defence, free expression is more
important than protection of reputation. The defence makes it impossible to sue the
person who makes a defamatory statement in any of the following circumstances:

• Any statement made in Parliament by a member of either House.

• Any report published by either House
• Any statement made by one spouse to another.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 7

Bachelor of Sharia and Law - Law of Tort II

• Statements made by officials and other servants of the EU in the exercise of their
functions.
• Statements made in the course of judicial proceedings, by judge, jury, witnesses,
lawyers or the parties themselves.

Absolute privilege:

ަ‫ ވަޒީރުންގެ މަޖިލީހުގައި ނުވަތ‬،ަ‫ބއުނަލެއްގައި ހިނގަމުންދާ އަޑުއެހުމެއްގައި ނުވަތ‬

ި ި‫މީހަކަށް ޝަރުޢީ ކޯޓެއްގައި ނުވަތަ ޓްރައ‬
‫ވަޒީރުންގެ މަޖިލީހުގެ ކޮމިޓީއެއްގައި ދެކެވޭ ވާހަކަތައް؛‬

ޭ‫ ކުރާ ތަޙްޤީޤެއްގައި ނުވަތަ ކަމެއް ހޯދާ ހޯދުމުގެ ތެރޭގައި ދެކެވ‬،ް‫ބފައިވާ މުއައްސަސާއަކުނ‬

ި ި‫ބރު ލ‬
ާ ީ‫ތަޙްޤީޤުކުރުމުގެ ޤާނޫނ‬
‫ބދަލުކުރެވޭ ލިޔެކިޔުމުގައިވާ ވާހަކަތައް އަދި އެކުލަވާލެވޭ ރިޕޯޓުތަކުގައިވާ ވާހަކަތައް؛‬
ަ ަ‫ ނުވަތ‬،ް‫ ހުށަހެޅޭ ހުށަހެޅުންތައ‬،ަ‫ވާހަކ‬

‫ބއުނަލަކުން ޝާއިޢުކުރުމަށް އަންގާ ލިޔުމުގައިވާ ވާހަކަތައް؛‬

ި ި‫ރައްޔިތުންގެ މަޖިލީހުން ނުވަތަ ޝަރުޢީ ކޯޓަކުން ނުވަތަ ޓްރައ‬

‫ ޝާއިޢުކުރާ ލިޔުމުގައިވާ ވާހަކަތައް؛‬،ި‫ބރާއ‬

ަ ަ‫ ދައްކާ ވާހަކަ ނުވަތަ ޢާންމުކުރާ ޚ‬، ް‫ ކަންއޮތްގޮތަށ‬،ް‫ޙާލަތްތަކުގައި ހުރި ކަންކަނ‬

Qualified privilege:

Like absolute privilege, qualified privilege protects statements made in certain

circumstances where free speech is considered to be in the public interest.

The defence of qualified privilege can arise under statute, and in common law.

Qualified privilege under statute:

The statutory provisions are now contained in s. 15 of the Defamation Act 1996:

Fair and accurate reports of the proceedings of legislatures, courts, governmental

inquiries and international organisations held in public anywhere in the world.

General meetings of any UK public companies.

Public sittings of tribunals, boards and committees acting under statutory powers.

Decisions by associations in the fields of the arts, sciences, religion, charity, trade,
industry and sports.

Proceedings of public meetings held in any EU state.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 8

Bachelor of Sharia and Law - Law of Tort II

Qualified privilege under common law:

At common law, the traditional definition of where qualified privilege will apply comes
from Adam v Ward (1917), in which Lord Atkinson explained that:

“ a privileged occasion is . . . an occasion where the person who makes a

communication has an interest or a duty, legal, social or moral, to make it to the person
to whom it is made, and the person to whom it is so made has a corresponding interest
or duty to receive it. This reciprocity is essential.

Protection of an interest.

Communications between officers of a company

Information given to the police where a crime is suspected.

Uz. Ibrahim Rasheed - Lecture Notes – Law of Tort II Page 9