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Defamation defences - Coggle Diagram
Defamation defences
Absolute privilege:
- Person making a statement has absolute right to make the statement at the time, even if its defamatory
- Defence arises from circumstance of its publication, or identity of publisher and not the content of the defamatory statement
Parliamentary Privilege:
- A complete defence regardless of truth of comments and motives of D, but limited in scope
- If this defence applies, its irrelevant that D acted with malice, knew information was false or acted solely to damage reputation of C
Daniels v Griffiths (1997):
- Facts: C was a prisoner convicted of rape and subject to life imprisonment. C sought parole and said that D slandered him before the Parole Board.
- Held: CA held that statements made to Parole Board was not part of court proceedings. But D was covered under the rule of immunity
- Statements are made in course of parliamentary proceedings including reports + papers ordered and published by either houses of Parliament
- Statements made in Parliament
- Reports ordered by Parliament to be published
Protected under Art 9 Bill of Rights 1688, cannot be used to be sued or used to sue - Church of Scientology of California v Johnson-Smith (1972):
- Extends that C cannot use statements in Parliament to show malice so as to defeat fair comment on statements made outside Parliament
- Petition to Parliament
- Letters written by MPs to the Speaker
- Not for letters written to MPs
Hamilton v Fayed (2001):
- C (member of Parliament) accused D for taking cash in return for asking question in the HoC. C lost his seat in the General Election. C brought libel action against D for having waived parliamentary privilege under S13 of the Defamation Act 1996.
Held: by waiver under S13 Parliamentary Privilege Act 1996, had the effect of allowing questioning of parliamentary proceedings for purpose of defamation action without it being an infringement of autonomous jurisdiction of Parliament
Judicial Privilege:
- Statements made during course of judicial proceedings, whether by judge, jury, counsel / witness. Must be relevant to the issue before the court
Does it extend to tribunals? - Wendy Waple v Surrey County Council (1997):
- C and husband adopted a son. The council wanted contributions for the cost of care. Parents requested details as to circumstances behind the application and relayed to them allegations against them. Allegations were withdrawn but C sought damages. C appealed an order striking out claim on basis that statement was privilege.
- Held: CA held that statement was made in course of procedures. Letters written by solicitor in performance of duties to client is qualified privilege and not absolute privilege
- Extends to communication between solicitor and client relating to judicial proceedings
- Extends to communications between opposing solicitors
Executive Privilege:
- Communications between senior officers of the State
- Covers communications between Ministers but not blanket immunity for communication between civil servants
- Covers internal memoranda in a foreign embassy - Fayed v Al - Tajir (1988)
Qualified Privilege:
- In respect to statements made for protection of one's private interests or for protection of public interest.
- Complaint is laid before proper authorities to secure redress of public grievance
- Permits free communication in certain relationships without risks of action for defamation
Legal, moral or social duty:
- Where person communicating the statement has legal, moral or social duty to make it and recipient has corresponding interest in receiving it
Adam v Ward (1917):
- Facts: C was an MP falsely attacked by General Scobell in a speech in HoC. The Army Council investigated the charge, rejected it and directed D (secretary) to write a letter go General Scobell that was released to the press, vindicating him and in turn with defamatory statements about C.
Lord Atkinson's test for privilege:
- An occasion when the person who makes a communication has interest in duty (legal social / moral) to make it to the person to whom its made and the person to whom it is made that has a a duty to receive it
Publication on a matter of public interest:
- Aka 'Reynolds privilege or responsible journalism'
- Replaced by defence of "publication on a matter of public interest
- Goes further than "Reynold's Test" requiring D to show that they acted responsibility (standard of responsible journalism) and also needs D to show they "reasonably believed that publishing the statement complained of is of public interest
Malice - Oliver v Chief Constable of Northumbria Police (2003):
- C was a police inspector who brought action for slander against his Chief Constable. D relied on qualified privilege.
- Held: HC held that publication was protected by qualified privilege and there will be a trial on the issue of malice.
Remedies
Damages:
- Courts compensate C's for:
- Loss of reputation, injury to feelings - assessment will depend on facts of each individual case
- Awards should reflect:
- seriousness of allegation, extent of publication, nature of D's conduct (both in publishing the defamatory statement & conduct afterwards i.e. any apology, retraction of statement will be considered in mitigation)
Injunction:
- Purpose:
- Prohibits publication / further publication of material alleged to be defamatory
Truth / Justification:
- The assumption that the defamatory statement is false, and the burden is on D to prove that its objectively true, on the balance of probabilities
- per S2 DA 2013: "...it is a defence to an action for defamation for D to show that imputation conveyed by the statement complained of is substantially true".
Truth:
- Where D will argue that the content of the statement is true of C.
- Its a complete defence to an action in defamation
What if the statement is substantially (totally) true?
- The defence won't fail if its substantially true.
- The defence won't fail if its substantially true, inaccuracy on minor points of detail are disregarded
- The burden of proof remain on the D
Alexander v North Eastern Railway Co (1865):
- Facts: C alleged that he'd been libeled by a notice that stated that he had been convicted of the travelling without payin ghis fair and sentenced to 3 weeks imprisonment in default of payment of fine. Notice was inaccurate except that the alternative period of imprisonment was 14 days and not stated.
Held: CA dismissed the claim
Burden = Truth / Justification:
- Burden is on D to show truth of statement.
- D does not discharge the burden by proving that he honestly believed that he honestly believed it to be true. HE MUST PROVE THAT ITS TRUE
- An objective test = not enough that D believes his statement
Truth / Justification = Malice?
- Where statement is shown to be true, even if made with malice there's no liability in defamation
Why? per M' Pherson v Daniels 1829: the law won't permit a man to recover damages in respect of an injury to a character he does not .... possess"
What need to be proven to be true?
- D needs to justify the allegation / "sting" of the statement that are defamatory and materially injurious to C by proving its precise truth
- "Sting" refers to the specific hurt or harm caused by the word
- Under S2(1) Defamation Act 2013 - If d establishes "essential" or "substantial" truth of the sting of libel, don't need to prove every word of statement is true.
Williams v Reasons (1988):
- C (amateur rugby player) sued D in respect of an article that accused him of writing a book for profit, contrary to amateur status.
- D claimed justification and was permitted.
- The "sting" of defamatory words is that C compromised his amateur status and evidence of the boots money went to justify the charge
Multiple allegations with a common sting:
- Not necessary to prove truth of every sting
- D only has to prove truth of the most serious charge such that the other statement don't injure C's reputation
Truth:
- Before pleading truth (justification), D should
- (i) believe that the words complained of were true
- (ii) intend to support the defence at trial; and
- (iii) have reasonable evidence to support the plea OR reasonable grounds that sufficient evidence to prove the allegations would be available at trial
Honest Opinion / Fair Comment:
- Any person is entitled to honest opinion. The statement is an honest opinion upon a matter of public interest
- Publication interest - Conduct of government, public institution, works of art and literature produced for public consumption, theatrical productions
- Not the private life of a person
Here the defence protects opinions honestly held, however it stops when:
- Statement was of statement of opinion
- Statement indicated the basis of opinion; and
- Honest opinion can have opinion on basis of any fact that existed at the time of the statement published / asserted to be a fact in a statement
Must be based on true facts - London Artists Ltd v Littler (1969):
- Facts: 4 top performances in a play terminated their contracts through their agents (C). D worked and published a letter suggesting that C and the actor plotted to end the production
- Held: D's failed in their defence of fair comment / honest opinion statement cannot prove correctness that there's a plot between the theatre owners and the actors put an end to his play.
- i.e. cannot prove opinion based on true facts
A statement of fact - Daklyl v Labouchere (1908):
- Here C who described himself as a "specialist for the treatment of deafness, ear, nose, and throat diseases" complained of a publication by D that he was a "quack of the rankest species".
- Held: A personal attack can form part of a fair comment on facts stated if there was a reasonable rationale from those facts.
Principle:
- If defamatory statement is a statement of fact, a defence of honest opinion is not available. Must use defence of truth
- If defamatory statement is expression of opinion (even if paraphrased/expressed), D can rely on defence of honest opinion
Innocent Dissemination:
- Available under S1 Defamation Act 1996:
- D must not be an 'author, editor or publisher' of statement but rather involved in mechanical processing, copying or distribution of material
- Strengthen under S10 DA 2013:
- A party who's not an author, editor or commercial publisher is protected from being sued for defamation unless its not "reasonably practicable" to bring action against author, editor or commercial publisher"
Balance of Freedom of Expression and the Law of Defamation:
- Have to balance the individual's right to protect their reputation and Freedom of Expression provided under Art 10 of ECHR
- Compare against the available defences of defamation: justification, privilege, fair comment
These are several defences available to D:
- Truth / Justification
- Honest opinion / Fair comment
- Absolute Privilege
- Qualified Privilege (repealed by DA 2013)
- Offer of amends
- Innocent dissemination
Offer to Amends:
- Provided under S2-4 Defamation Act 1996:
- Offer must be in writing, making correction of alleged defamatory statement and sufficient apology to C. Must also pay compensation and cost
- If parties agree, then legal proceedings stop
- Can only be made before defence in defamation proceedings
- Cannot use other defences