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Tort Law Revision: Nuisance, - Coggle Diagram
Tort Law Revision: Nuisance,
- 1) Private nuisance is substantial and unreasonable interference with use and enjoyment of land (Hunter v Canary Wharf [1997])
- 2) Landowners have something approaching strict liability if they unreasonably interfere with the use and enjoyment of another's land. If there is a violation, liability may be imposed
- 3) Nuisance covers indirect interferences with land not involving physical invasions. E.g. smells, noises, heat, vibrations. Also covers physical invasions by things not controlled by D, e.g. cricket balls (Miller v Jackson)
- 3 types of nuisance (established by Lord Lloyd in Hunter):
- Encroachment on land
- Physical injury to land
- Interference with quiet enjoyment of land (loss of amenity)
- Bad cases make bad laws-—when courts are faced with difficult cases, applying existing law may lead to unjust outcomes therefore, courts may look to slightly change the law in order to seek a more just outcome
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Defamation
Three criteria for defamation:
- a) D defames C if he publishes a statement about C that would tend to lower C in the estimation of right-thinking people (Sim v Stretch [1936]) (Lord Atkin)- only defamatory if a right-thinking person would think less of the claimant as a result of the statement- Sim v Stretch involved D stating C did not have enough money to pay maid
- Abusive or offensive words are not enough (Berkoff v Burchill, [1996]), finding D's suggestion that C was hideously ugy defamatory, as it exposed him to hatred, contempt or ridicule, probably wrongly decided. Only succeeded in court as actor involved trades in business upon his appearance, therfore this defamed his appearance, perhaps affecting perceptions of him and his ability in working
Statement can be conduct- E.g. Monson v Madame Tussard's [1894]: D defamed C by including sculpture of him in rogue's gallery
- Yousoupoff v MGM Pictures Ltd [1934]- held that it was defamatory to suggest C had been raped, as might lead people to shun and avoid her. The statement was defamatory even though it reflected no 'moral discredit' on the part of the victim. Based on social prejudice, and morals and values of the current era. Defamation laws should 'be an instrument for promoting moral virtue'
- Saying C is gay, defamatory previosuly, and today if C is married (Cruise v Express Newspapers plc, [1999])
Innuendo- even if words do not defame, they may do so when combined with facts that the audience already knows. Baturina v Times Newspaper [2011]- statement that C bought property in London defamatory to those who knew she had cliamed to own no property. For purpose of defamation law, court must define the ultimate and natural meaning of a statement. Law sometimes considers imputations and innuendos defamatory
Libel v Slander
- Libel is written and slander is oral, but movies was libel, e.g. Yousoupoff
- Plays also libel- Theatres Act 1968, s.4, as are radio and TV
- Unlike libel, slander requires special damage. Justified by permanence, fact that people are less careful about speech
- Exceptions: criminal conduct, unfitness in calling or business, serious contagious diseases, unchastity of women (last two abolished by Defamation Act 2013)
Innuendo- even if words to not defame, they may if combined with facts if reader/hearer knows facts. E.g. photo of C exiting brothel
- Cassidy v Daily Mirror Newspapers Ltd [1929]- statement that C's husband was engaged defamed C since implied she was living in sin, even though D did not know of C's existence. D's knowledge or intent irrelevant
- Baturina v Times Newspapers [2011]- statement that C bought property in London defamatory to those who knew she had claimed to own no property
Must refer to C:
E.Hulton v Jones[1910]: C was defamed when people thought article referred to him even though D intended to refer to a fictional character with C's name. This requirement appears to introduce strict liability into defamation as D may be liable even if she does not know, and cannot reasonably be expected to know, that her words refer to C. HoL held D liable
- A detailed description without mentioning names, but refers clearly to an individual, may be deemed as defamatory. Potential to affect journalistic freedom?
- Yousoupoff: character in movie with different name but people assumed was claimant
- Morgan v Odhams Press Ltd [1971]: story that V had been kidnapped defamed C who had spent 6 days with her because those reading the story thought C was a kidnapper
Publication: Statement must be made to someone other than C, e.g. C's spouse
- Internet- a new publication each time spmeone reads it, even if retrieved from archive. Loutchansky v Times Newspapers, Ltd [2002], modified by s.8 Defamation Act 2013
Multiple Publication Rule- Stats that a statement is considered to be published wheneverit is repeated or accessed, regardless of whether it was published or not
Defences
- A) Truth- an affirmative defence. D must prove the statements are true in fact and substance: meaning the "sting"
- Stocker v Stocker [2018]- womena told her ex-husband's new partner on Facebook that he 'tried to strangle me'.
- CA upheld judge’s finding that, although she proved that he had ‘violently gripped her neck, her statement implied that he had tried to kill her by strangling, which she had not proved.
- The truth defence was available to her on the fact that he had violently grabbed her neck, but not allowed defence for the suggestion that he tried to kill her. Currently on appeal to the supreme court. Involves subtle description of meaning. Natural and ordinary meaning of phrase adopted by the court was that he had tried to kill her through strangulation. Raises worries within victim’s rights groups.
- Makes truth defence a bit unreal, dependant upon fine distinctions ofmeaning. Appeal is geared towards whether the trial judge was correct in his definitions. Limited imputations of truth proven
Defamation Act s.4-:
- a) The statment must be on a matter of public interest,
- b) and the defendant reasonably believed that publishing the statement was in the public intereest
Replaces defence in Reynolds v Times Newspapers [2001]- Article in Sunday Times about ex-Irish PM- claimed he had quit because he had misled parliament. C sued D for libel. D had no defence. Established defence of 'Reynolds Privilege'. In Reynolds, Lord Nicholls listend factors to be taken into account:
- The seriousness of the allegation
- The nature of the information, and the extent to which the subject is of public concern
- The source of the information
- The steps taken to verify the information
- The status of the information. The allegation may have already been the subject of aninvestigation that commands respect.
- The urgency of the matter
- Whether comment was sought from the C
- Whether the article contained the gist of the C’s side of the story
- The tone of the article. A paper can raise queries or call for an investigation. It neednot adopt allegations as statements of fact.
- The circumstances of the publication, including the timing.
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Innocent Dissemination- Defamation Act 1996, s.1: defence if D
- 1) Was not the author, editor or publisher. Excludes printers, distributors, ISPs, bookstores. In Tamiz v Google Inc [2013] (D liable for blog once knew defamatory)
- 2) Took reasonable care
- 3) Did not know or have reason to believe defamatory
- 4) Purely passive media (e.g. post office) not a publisher
- 5) Defamation Act 2013, s.10, provides more protections: cannot sue secondary publisher unless cannot sue author, punisher etc
Privileges
- Absolute privilege for: Statements in Parliament (Bill of Rights 1688 Article 9). Republication outside parliament not protected unless closely related
- Reports published by Parliament. Parliamentary Papers Act 1840
- Statements made for purposes of judicial proceedings. Absolute immunity for witnesses- inclduing expert reports prepared for purposes of use in trial
- Fair and accurate contemporaneous reports of judicial proceedings. Defamation Act 1996, s. 14. Does not extend to pleadings. Stern v Piper, [1997] QB 123 (CA).5.
- Communications by Ministers in the course of duty. Chatterton v Secretary of Statefor India, [1895] 2 QB 189.6.
- Statements for purposes of criminal investigation. Taylor v Director, Serious FraudOffice, [1999] 2 AC 177 (HL).
- Qualified privilege- Applies to communications by person with duty (not necessarily legal) to person duty to receive (same). Adam v Ward, [1917] AC 309 (HL) (both must have duty).Ex: reference for job.
- Watt v Longsdon , [1930] KB 130 CA): D had duty to show letter about C to chairmanof C’s employer, but not to C’s wife.
- See also s. 7 of Defamation Act 2013.
Press privilege : Reynolds v Times Newspapers Ltd [2001]- protects newspaper articles on matter of public concern or public interest if D acted as responsible journalist in publishing it
Remedies
- Injunctions- routinely awarded injunction against further publication if C wins
- Damages- set by juries who make high rewards- but courts can reduce if excessive
- Juries should be told of standard awards in personal injury cases. John v MGN Ltd,[1997] QB 586 (CA) (setting aside damages of £350,000 to Elton John for story about his diet)
- But juries may award low damages if evidence shows C in bad light. Pamplin vExpress Newspapers Ltd (No. 2) [1988] 1 WLR 116 (CA). But this does not authoriseroving inquiry into C’s life. Burstein v Times Newspapers Ltd, [2001] 1 WLR 579(CA
Offer of amends-
- D who has defamed C can make offer of amends under Defamation Act 1996, s. 2-4.
- Must make suitable apology and publish a correction.
- Pay compensation agreed or determined by court (not jury). Normally court givesdiscount based on fact that D made offer, around 50 %. Cairns v Modi, [2012] EWCACiv 1382.
- If C does not accept, offer is a defence to claim, unless D knew or had reason believe statement was false, defamatory and was likely to be understood as referringto C. B of P on C.
- Milne v Express Newspapers , [2005] 1 All ER 1021 (CA): D loses defence only if bad faith.
Reform
- A. Much controversy over UK being the libel capital of the world as result of very pro-C law. Especially focus on tendency for persons resident elsewhere to sue in UK for injury to UK reputation because suit would be dismissed elsewhere. E.g. Lewis v King, [2004] EWCA Civ 1329.
- B. Prominent case, British Chiropractic Assn v Singh, [2010] EWCA Civ 350 (sciencewriter’s statement that C promoted bogus treatments was opinion, but D spent fortune defending himself). See also Steel v UK, [2005] 41 EHRR 22 (McLibel) (libel case brought by McDonalds against jobless Ds required legal aid).C. Defamation Act 2013, effective 1-1-2014.
- Main features: Require C to show substantial harm to reputation. Any single claim must meet this condition. Berkoff and Burchill – these claims may not be ruled out now (too trivial)
- (s. 1)-Single publication rule, so statute runs from first publication. After a year from first publication, C has their opportunity to raise a claim (multiple publication rule no longer applies)
- (s. 8)-Remove presumption of jury trial. Juries often gave excessive rewards. (s. 11)-Place justification, honest comment and Reynolds defences on statutory basis, with provisions similar to current law (ss. 2-4) but some significant changes to last two,discussed above.
- Includes protection for website operators and other non-authors (s. 5 & 10) (very complex) and for academic discourse (s.6).-Repeals slander of women and infectious disease exceptions to requirement of proofof special damage for slander (s. 14).
. Does the act go far enough?
- The act does not –- Remove the standing of companies to sue.- Introduce a general fault requirement- Embrace the test in NY Times v Sullivan (1964) – a public figure may only sue if the statement was made with ‘actual malice’ (i.e. knowing the statement is false or having no positive belief in its truth).
- This means big corporations don’t have excessive power, to silence criticism.- ‘an opportunity radically to rethink the nature of interplay between the public sphere the legal regime, the proper function of law in the resolution of public sphere disputes, has gone begging.' (Alastair Mullis and Andrew Scott 2014)
- Defamation is linked to the 'fundamental human interest in sociality' (David Howarth, 2011)
Privacy
- Privacy looks to balance article 8 and article 10 of the ECHR
- Privacy has been thought to concern control over personal information; human dignity; interpersonal relations; and freedom of conscience and expression
Hunter v Canary Wharf [1997]
- Cs were residents who complained that the erection of the Canary Wharf Tower interfered with their TV reception and the construction created excessive dust
- Many of the Cs were mere licensees without title to the properties they stayed in (e.g., spouses, children, relatives, lodger, au pair, employees
- Held that interference with one’s television reception through the construction of a neighbouring structure could not and does not amount to an actionable nuisance.
Who can sue in defamation?
- 1) Living humans
Companies if damages trade. Jameel (rejecting requirement that companies show actual loss), s.1. of Defamation Act 2013 requires serious financial loss
- Public bodies may NOT sue. Derbyshire CC v Times Newspapers [1993]- INDIVIDUAL MEMBERS CAN SUE