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Defamation - Coggle Diagram

- - - - expressing an opinion which was made honestly and not maliciously
      - and based on fact
      - Butt v Sec of State
        
        essential part of the protection of "afforded to freedom of expression"
      - elements:
        
        it was a statement of opinion (s 3(2))
        
        statement complained of indicated, whether in general or specific terms, the basis of the
        opinion: s 3(3)
        
        D held the opinion expressed (no malice) s 3(5)
  - - - D can offer amends and if they accept then no defamation suit can be pursued
        
        must be reasonable
      - can be more cost efficient way of dealing with problem
- - - - L = permanence S = transcience
      - L = written S = spoken
      - L = addressed to eye S = addressed to ear
      - statutory reccomendations
        
        Defamation Act 1974 (NSW)
        
        statutory intervention
        
        s 166 Broadcasting Act 1990
        
        s 4 Theatres Act 1968
      - reason 1:
        
        libel
        
        actionable per se
        
        damage irrebuttable presumption of law
        
        Lachaux v Independent Print Ltd
        
        presumed- do not have to prove there has been damage
        
        slander
        
        NOT actionable per se
        
        requires proof of 'special damage' with 'special meaning'
        
        must prove that you have lost customers/income/contacts/business/trade
        
        EXCEPT
        
        where D's slander imputes that C was guilty of an imprisonable criminal offence
        
        Noorani v Calver
        
        ABC v CC of West Yorkshire Police
        
        where D's slander imputes that C was unfit, incompetent and dishonest, where C is carrying on a profession, trade, calling or business
        
        s. 2 DA 1952
        
        Andre v Price
        
        MacCaba v Lichtenstein
        
        reason 2:
        
        libel CAN be a crime, slander CANNOT
        
        evidential difficulties in slander claims is a 'recognized hazard'
        
        Yavuz v Tesco Stores Ltd
      - Monson v Tussauds Ltd
      - Smith v ADVFN plc
      - Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd
      - Clynes v O’Connor
      - Andre v Price
      - ABC (A Mother) v CC of West Yorkshire Police
  - - - 1) jurisdiction
      - 2) subject-matter
      - Naseer v Raja
    - - s 9 DA 2013
  - - - C must demonstrate a 'real and substantial tort' to proceed with defamation suit
        
        otherwise it's an abuse of process
        
        s 1(1) DA 2013
        
        unless its publication has caused, or is likely to cause, serious harm to the reputation of C
        
        AND: contrary to common law position
        
        now need proof of actual harm to C's reputation
        
        Lachaux v Independent Print Ltd
        
        more difficult to prove 'serious harm' post Lachaux
        
        2 more items...
        
        Mueen-Uddin v Sec of State for the Home Departments
        
        *s 8 of judgement
        
        Kaschke v Gray
        
        Ecclestone v Telegraph Media Group Ltd
      - Jameel v Dow Jones & Co Inc
  - - - Derbyshire CC v Times Newspapers Ltd
    - - Hays plc v Hartley
      - British Chiropractic Assn v Singh
      - NOT to trade unions/unincorporated associations
        
        EEPTU v Times Newspapers
- - - - the natural and ordinary meaning of D's words
        
        obtained from:
        
        direct literal meaning
        
        Johnson v MGN
        
        Butt v Secretary of State
        
        false (popular) innuendo
        
        can be understood by anyone "reading between the lines"
        
        Bestobell Paints Ltd v Bigg
        
        true legal innuendo
        
        statement does not appear defamatory on its face
        
        but IS because certain readers know of extrinsic circumstances/extraneous facts that make it so
        
        Cassidy v Daily Mirror Newspapers Ltd
        
        Johnson v MGN
    - - relevant tests:
        
        substantially and adversely affects the attitude of other people towards C
        
        lowers C in the estimation of right-thinking members of society generally
        
        causes C to be shunned, ridiculed or avoided
        
        Thornton v Telegraph Media Group
      - personal
        
        imputations as to character or attributes of an individual
        
        Berkoff v Burchill
        
        Andre v Price
        
        Cook v Telegraph Media Group Ltd
        
        Depp II v News Group Newspapers Ltd
        
        Cruise v Express Newspapers
      - business/professional
        
        imputations as to an attribute of an individual,
        corporation/trade union/charity/similar body
        
        AND relates to the way the business/profession is conducted
        
        Depp II v News Group Newspapers Ltd
        
        Thompson v James
        
        Dee v Telegraph Media
    - - court will apply the standard of the "hypothetical reader"
        
        the 'right-thinking member of society'
        
        Stocker v Stocker
        
        from society as a whole
        
        not just a subsection of it
        
        Williams v MGN Ltd
        
        Jeynes v News Magazine Ltd
    - - to determine natural/ordinary meaning, must take into account:
        
        context
        
        how words were set out/presented
        
        whether ' ' used around imputation
        
        whether 'antidote' was sufficient to neutralize defamatory 'bane'
      - both bane and antidote must be taken together
        
        photos/headlines
        
        Charleston v NGN Ltd
        
        Dee v Telegraph Media
        
        different articles
    - - irrelevant
        
        Cassidy v Daily Mirror Newspapers Ltd
  - - - the defamatory imputation must refer to C
        
        or be understood as referring to C (judged according to the ordinary reader)
        
        whether the imputation actually referred to C is not to be judged by what D intended, knew, or could reasonably have foreseen
        
        intending someone else is irrelevant
        
        correct question is "who was hit', not 'who was meant'
        
        Bradley v Independent Star
        
        not necessary that all readers would have identified C
        
        some is enough
      - problematic scenarios
        
        C not named
        
        Reference Innuendo
        
        imputation does not refer to C expressly, but where knowledge of extrinsic facts on the part of some readers is required to link the statement to C
        
        Alexander-Theodotou v Kounis (Rev 1)
        
        Economou v De Freitas
        
        Powell v Boldaz
        
        fictional character
        
        which could be taken to refer to C
        
        E Hulton & Co v Jones
        
        mistaken descriptions about C
        
        Mitchell v Evening Chronicle
- - - - injury to reputation
      - outwardly vindicate the claimant's good name
      - distress which injury has caused
        
        (consequential from injury to reputation, cannot occur on its own)
      - John v MGN Ltd
      - factors NOT taken into account:
        
        injury to family and friends of the defamed
        
        Bowman v MGN Ltd
        
        factors taken into account:
        
        the gravity of the defamatory imputations
        
        the type of defamatory imputation
        
        the time period over which the publication appeared
        
        D's own behaviour
        
        frequency of publication
        
        the readership
        
        must take victim as they find them
        
        egg shell skull rule
  - - - s 12 DA 2013