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Topic 14- Defamation (Changes under 2009 Act (Limitation of Actions
2009…
Topic 14- Defamation
Changes under 2009 Act
Limitation of Actions
2009 Act reduced limitation for bringing a defamation action
- Previously 3 years for slander/6 years for libel
- Limitation period= one year from date of publication
Can be extended to two years where court satisfied
a) interests of justice require
b) the prejudice P would suffer weighed against prejudice D would suffer if case not allowed to procede
Survival of Cause of action on death
In event of death of a person who has a cause of action vesed in him or cause of action vesed aginst him
- the case will survive
- However, damages that may be awarded in such an action may not include general damages, punitive damages or aggravated damages
Only applies to cause of action existing at time of death
- No provision for defamatory statements after death
- It was hoped the legislators would include a provision for family in such situations to sue for defamation where rep affected by allegations
Defamation of a Body Corporate
Act provides that a body corporate may bring a defamation action in respect of statement concerning it
- Whether or not it has incurred financail loss as a result of publication of that statement
Verifying Affidavit
The Act requires both P and D to submit sworn affidvit verifying the particulars of any pleading containing assertions, allegations of fact or information
- If person makes a statement in affidavit
a) that is false or misleading in any material respect and
b) that he or she knows to be false or misleading
- he or she will be guilty of a criminal offence
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Summary disposal of action
Act provides for summary disposal of defamation actions before a judge sitting alone without a jury
- A judge hearing such an action may grant summary relief to P if he is satisfied that - the statement is defamatory and D has no defence reasonably likely to succeed
- Can dismiss action if it is satisfied the statement is not reasonably capable of being found to have defamatory meaning
Press Ombudsman/Council
Act provides statutory recognition of Press Council
- Independent body with 13 directors, responsible for drawing up Code of Practice for press industry
- Provide form of independent regualtion for printed media
- Viable alternative to litigation
Remedies
Lodgement
- A D may lodge in court a sum of money in satisfaction of the action, without admitting liability
- If P fails to meet that sum in the award of damages, the court can consider that fact when awarding damages
- Lodgement may be inreased as a matter proceeds
- Not disclosed to court until matter has been decided
Damages
2009 Act provides: A judge can give directions to the jury in relation to damages
- It further gives D opportunity, with the leave of the court to make submissions for the purpose of mitigating damages
Previously- judge not entitled to direct jury in regard to damages, suggest a range of damages or give examples for how much courts award in certain personal injuriesSection 38: The following should be considered when assessing appropriate level of damages
a) the nature and gravity of any allegation in the defamatory statement concerned
b) the means of publication of the defamatory statement including the enduring nature of those means
c) extent to which defamatory statement circulated
d) offering or making of apology, correction or retraction to P
e) the making of an offer to make amends
f) importance to P of his reputation in eyes of particular or all recipients of defamatory statement
g) extent to which P caused or contributed to, or acquiesced in, the publication of the defamatory statement
h) evidence given concerning reputation of P
i) if the defence of truth is pleased and D proves the truth of part but not the whole of defamatory statement, extent to which defence successfully pleased
Declaratory Order
Section 28: provides P can apply to court for a declaration that a statement was false and defamatory
- If granted, this order will be made instead of damages
- P must have requested D to make and publish an apology, correction or retraction of the defamatory statement
- D must have refused to do so
- Court may also make corection order
Correction Order
Section 30: Provides a P can apply for an order directing D to publish a correction of the defamatory statement
- Where P intends to make an application for a correction order must notify D at least 7 days before start of trial
- Can order instead of or in addition to damages
Prohibition order
Section 33 states P may apply to HC for order prohibiting publication or further publication of a defamatory statemne
- If in opinion of court, statement is defamatory, the D has no defence to the action that is reasonably ikely to succeed
- maked reluctance to grant pre-publication injunctions re defamation actions
- Remains to be seen whether this provision will have any effect on judicial mindset
Online Defamation
Tanse y v Gill
The internet as facilitated an inexpensive, easy and instantaneous means whereby unscupulous persons or ill motivated malconents may give vent to their anger
Held: Material complained of seriously defamatory of P
- First named D would have no prospect of succeeding with any defence
- Said he had no hesitation in granting the interlocutory relief sought
Mulvaney v The Sporting Exchange
Facts: P claimed to have been defamed by maerial posted on a betfair charoom by Betfair clients
- in addition to bringing proceedings against those who posted the material, P sought relief against Betfair as operator of chatroom
Held: Betfair relied successfully upon Reg 18 European Communities Regulations 2003
Held; ISP within meaning of Regulations
Muwema v Facebook Ireland: Court refused to order Facebook to take down defamatory material concerning a Ugandan Lawyer and to prohibit further publication on its site
- he relevant domestic legislation did not permit such relief in respect of an Internet service provider who was an 'innocent' publisher
- As the material was now widely available online elsewhere, to do so would be in vain
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