Defamation II

S4(1) DA 2013 - it is a defence to an action for defamation for the defendant to show that #

All defences available

Truth

Privilege

Absolute

Qualified privilege (common law)

Publication in the public interest (statute)

Honest opinion

Innocent dissemination

Operators of websites

Offer of amends

Consent - Chapman v Lord Ellesmere (1973)

Contributory negligence - Grobbelaar v News Group (2001)

Truth

The defamatory imputation must be one of fact

The burden is on the defendant

Malice, knowledge and fault of the defendant are irrelevant

S2 Defamation Act 2013 - defence of justification abolished and replaced by truth

S2(1) - It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true

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

If more than one imputation

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

Privilege

Absolute - the occasion demands total freedom in the communication of views and information

Balance between freedom of speech and protecting personal reputations

Examples

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

Malice is irrelevant

Qualified (common law)

Need for freedom of speech not so great as absolute privilege but requires some protection from the threat of litigation

Adam v Ward (1917)

1) The defendant has a legal, social or moral duty to communicate the information

2) The person to whom it is published had a duty to receive it

3) The material is in the public interest

4) There was no malice

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)

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)

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"

Reportage

Al-Fagih v HH Saudi Research and Marketing (2002)

Flood v Times (2012)

Relationship between test and publication not by mass media - Kearns v General Council of the Bar (2003)

Qualified (statute)

S4 Defamation Act 2013 - publication of a matter of public interest (abolishes Reynolds defence)

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)

Honest opinion

S3 Defamation Act 2013

Abolishes common law defences of fair common and honest comment - common law requirement for public interest not included in the state - Spiller v Joseph (2011)

S3(2) - the first condition is that the statement complaint of must be one of opinion

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)

S3(3) - the second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion

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)

S3(4) - the third condition is that an honest person could have held the opinion on the basis of

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)

S3(5) - the defence is defeated if the claimant shows that the defendant did not hold this opinion

Thomas v Bradbury (1906)

Grobbelaar v News group (2011 CA)

Reynolds v Times (2001)

Innocent dissemination

Protects mechanical distributors of material

Vizetelly v Mudie's Select Library (1900) - common law defence still exists

S1 Defamation Act 1996 - in defamation proceedings a person has a defence if he shows that

a) He was not the author, editor or publisher of the statement complained of

b) He took reasonable care in relation to its publication, and

c) He did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement

Mechanical distributors now further protected by s10 Defamation Act 2013

S10(1) - a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher

S10(2) - in this section "author", "editor" and "publisher" have the same meaning as in section 1 of the Defamation Act 1996

Operators of websites

Common law

Godfrey v Demon Internet (2001) - chose not to remove defamatory content after they had been made aware of it

Tamiz v Goggle Inc (2013) - regarded as second publisher of blog once it had been drawn to their attention

New defence specifically for operators of websites under s5 Defamation Act 2013

S5(2) - it is a defence for the operator to show that it was not the operator who posted the statement on the website

S5(3) - the defence is defeated if the claimant shows that

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

Offer of amends - partial defence

Involves admission of liability - if relying on this defence the defendant cannot argue any further defences

S2 Defamation Act 1996

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

Consequences if not accepted - Roach v News Group (1992)

S13 Civil Evidence Act 1968 - conviction for an offence constitutes conclusive proof for the purposes of truth in a defamation claim that the person convicted committed the crime for which they have been convicted

Bunt v Tilley - Eady J found as a matter of law that an ISP which performs no more than a passive role in facilitating internet postings cannot be deemed a publisher - should be read in light of Tamiz