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DEFAMATION (Defences (Fair comment (criteria laid out in CC v CCC)…
DEFAMATION
Defences
Justification
If truth, then not really lowering a reputation that is already bad. Onus on D to prove defamatory statement is true in substance and fact
Where several statements contain a common sting, the D can justify the common sting (ANB v ANF), unless got separate and distinct allegations.
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Absolute privilege
Lim Eng Hock Peter v Lin Jian Wei : Factors:
- Nature and importance of interest D seeks to protect
- Scale and risk of damage to that interest is sufficiently serious?
- Breadth of immunity needed
- Appropriate as a matter of principle to extend this to the present case (compared to other cases)
- Is the risk to the public interest that the D seeks to protect so great that it overrides the public interest that persons should have access to the courts to seek a remedy for wrong suffered?
Qualified privilege
Duty-interest test
D has an interest or duty to communication information and recipient has interest or duty to receive information (Lim Eng Hock v Lin Jian Wei)
Watt v Longsdon: Employee alleged plt was immoral and dishonest, told chairman and plt's wife. Def had interest in communicating to wife but not to chairman.
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Fair and accurate reports of parliamentary and judicial proceedings at common law, Statutory qualified privilege, Ancillary or derivative privilege
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Public interest defence: Reynolds defence enabled media defendants to raise the defence for publication of defamatory statements which are of public interest, provided it is done with responsible journalism. Review Publishing v LHL rejected defence for non-citizens.
Innocent dissemination:
Intermediary must show - (a) he did not know publication was libellous, (b) work could not have alerted D to libellous content and (c) such ignorance was not due to negligence
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Assent
Chiam See Tong v Xin Zhang Jiang Restaurant: scope of assent must clearly relate to the publication of the statement
To establish a prima facie case of defamation... 1. Whether statement is defamatory in nature (3 tests to determine defamatory statement)
Whether statement tends to lower the plaintiff in the estimation of right-thinking members of society
Drummond-Jackson v Medical Association
Words were defamatory where they imputed a "lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of [the plaintiff's] trade, or business or professional activity”.
Chiam See Tong v Xin Zhang: the question I asked myself as representing the reasonable man was: “Would a substantial and respectable proportion of the English but non-Chinese readership of the New Paper and the handbills think less well of the plaintiff after reading them?” - Fair to restrict to such limited class?
Problem: if define class of persons too narrowly, then establish defamation too easily.
Must publish to 1 other person who belongs to a sufficiently large class (which will regard the plt's reputation as lowered)
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Whether the statement tends to expose the plaintiff to hatred, contempt or ridicule
Berkoff v Burchill: Statement imputed that P was repulsive and made him a subject of ridicule. (Dissent: an insult to the P’s appearance; not reputation)
Basic principle: statement should relate to reputation of plt (truth / state of mind irrelevant now)
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4. Publication
Statement must have been communicated to a third party or parties (directly or repeat material) who would reasonably understand the statement to be defamatory of the plaintiff
Intention irrelevant if publication would occur in the natural and ordinary course of events: Theaker v Richardson. But if third party is not meant to receive it, then it could not be publication. Innocent dissemination.
Ng Koo Kay Benedict v Zim Integrated
No publication in Singapore as no proof to show persons had accessed the websites
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Remedies
Damages
General damages consist of both pecuniary and non-pecuniary losses as well as injury to feelings for the natural person who was defamed. Compensatory in nature, return to position prior to tort.
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Relevant factors include standing of the plaintiff, the extent of publication, and effect of publication on the plaintiff, deterrent effect against def (Lim Eng Hock), degree of care exercised by def (Review Publishing)
Aggravated damages for additional injury (e.g. hurt, pain, suffering) caused by conduct (McCarey) or bad motives / malice.
Injunctions
Retract statement / prevent future publication of such material, or interlocutory injunction.