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Defamation II (All defences available (Privilege (Absolute, Qualified…

- - - - Malice is irrelevant
    - - Statements in Parliament and reports - Article 9 Bill of Rights 1688/Parliamentary Papers Act 1840, s1
      - Statements in court and reports - common law/Defamation Act 1996 s14
      - Statements between ministers or other officers of the state
  - - - Adam v Ward (1917)
        
        1) The defendant has a legal, social or moral duty to communicate the information
        
        Examples of (1) and (2) - duty must be reciprocal - forms of privilege usually either between publications and limited audiences (e.g. employment references) and publications and the public
        
        Todd v Hawkins (1837) - defendant wrote to mother-in-law about her future husband - he believed in allegations and no evidence of malice - under moral duty to make her aware of man's character, and she had a corresponding interest in receiving the information
        
        Watt v Longsdon (1930)
        
        Clift v Slough (2010)
        
        2) The person to whom it is published had a duty to receive it
        
        3) The material is in the public interest
        
        What is meant by public interest?
        
        London Artists v Littler (1969) - per Lord Denning - "wherever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at"
        
        Flood v Times (2012)
        
        4) There was no malice
        
        What is meant by malice?
        
        Horrocks v Lowe (1975) - no honest belief in truth, or acting out of improper motive
        
        Dr Adu Seray-Wurie v Charity Commission - "must go beyond that which is equivocal or merely neutral... in the sense that the relevant person was either dishonest is making the defamatory statement or had a dominant motive to injure the claimant"
      - Reynolds test for responsible journalist - now abolished and replaced with s4 Defamation Act 2013, but still useful - Lord Nicholls said above all, "the court should have particular regard to the importance of freedom of expression"
        
        Reynolds v Times (2001) - criteria include
        
        Seriousness of allegation
        
        Steps taken to verify the information - Loutchansky v Times (2002) - how far journalist has to go to verify depends on seriousness of allegation and urgency
        
        Urgency of the publication
        
        Whether right to reply given
        
        Galloway v Telegraph (2006) - given no proper opportunity, no steps taken to verify and tone of article unbalanced - held had not reported responsibly
        
        Jameel v Wall Street Journal (2006) - must not be applied rigidly - defence succeeded even though didn't wait for comment as tone balanced
        
        Tone of the article - Grobbelaar v News Group (2001) - "sustained and mocking campaign of villification"
        
        Relationship between test and publication not by mass media - Kearns v General Council of the Bar (2003)
      - Reportage
        
        Al-Fagih v HH Saudi Research and Marketing (2002)
        
        Flood v Times (2012)
  - - - S4(1) DA 2013 - it is a defence to an action for defamation for the defendant to show that #
        
        a) The statement complained of was, or formed part of, a statement on a matter of public interest (see Reynolds on seriousness of allegation and nature of information), and
        
        b) The defendant reasonably believed that published the statement complained of was in the public interest (see Reynolds criteria)
      - S4(2) - subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case - Reynolds criteria useful here, for matters 4(1)(a) and (b)
      - S4(3) - covers reportage (Al-Fagih; Flood)
      - S4(4) - allows for editorial judgement (Flood)
      - S4(5) - covers both fact and opinion (change from common law)
- - - - Malice, knowledge and fault of the defendant are irrelevant
  - - - What has to be true?
        
        Sting of the libel - libellous words - Grobbelaar v News Group (2002) - allegation that footballer had accepted money in return for match fixing - video footage of him accepting money, but no proof that played badly on purpose - allegation that had actually fixed matches was considered sting, not that he had conspired to do so - defence failed
        
        Repetition rule - Lewis v Daily Telegraph (1964)
        
        Stern v Piper (1972) - must still prove, on balance of probabilities, that substance of the allegation is true
      - What is meant by substantially true? - Alexander v North Eastern Railway (1865) - publication said claimant received three weeks imprisonment instead of two - defence allowed
    - - S2(3) - If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation
        
        Robson v Newsgroup (1996)
        
        Rothschild v Associated Newspapers (2013) - story that claimant had sought to impress Russian oligarch through friendship with EU Trade Commissioner during trip to Siberia shown substantially true - no less sting than untrue story that had also taken them both to dinner - defence allowed
        
        Now need to take into account the requirement for serious harm under s1(1) Defamation Act 2013
- - - - a) It was not possible for the claimant to identify the person who posted the statement
      - b) The claimant gave the operator a notice of complaint in relation to the statement, and
      - c) The operator failed to respond to the notice of complaint in accordance with any provision contained in regulations
- - - - Difference between fact and opinion - depends on both content and context
        
        Cornwall v Myskow (1987)
        
        Roach v News Group (1992)
        
        Hamilton v Clifford (2004)
        
        British Chiropractic Association v Singh (2011)
    - - Kemsley v Foot (1952) - explained why believed Kemsley was bad quality, referring to inaccurate reporting and the tone of the articles
      - Spiller v Joseph (2011)
    - - a) Any fact which existed at the time the statement complained of was published
      - b) Anything asserted to be a fact in a privileged statement published before the statement complained of
      - Reynolds v Times (2001)
    - - Thomas v Bradbury (1906)
      - Grobbelaar v News group (2011 CA)
      - Reynolds v Times (2001)
- - - - Must be in writing
      - Must be expressed to be an offer of amends
      - Involves a suitable correction and apology
      - Involves an offer of payment of compensation