Defamation: Timon Hughes-Davies
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Common law tort relating to a person’s good name – their reputation and how other’s
publicly use them
Considered to have value in the eyes of the law, not about emotional distress however. Fact
you are upset may be taken into account when deciding a remedy, but the law doesn’t
recognised emotional upset in itself.
Does recognise everyone has the right to a good name which is something of value, and if
this is damaged you’re entitled to a legal remedy.
Any ‘statement’ about a person which is capable of damaging their reputation is, prima
facie, defamatory and may give rise to a claim. Truth is a defence, and the onus is on the
maker of the statement to prove the truth of the statement, not upon the claimant to prove
that it is false.
E.g. saying Jimmy Saville is a predatory paedophile this damages his good name – it is true
but this is only a defence and the onus is one the maker of the statement to prove the truth
of the claim, not on the claimant to show it is false.
Claimant wins if you can’t prove the truth of your defamation – burden of proof on the
defendant.
Claims in defamation are not confined to statements made in verbal form. Any
representation is capable of founding a claim, if it could be understood as defamatory to the
claimant – drawings and photographs are included.
Two forms: Libel and Slander
o Difference between statements made in permanent or transitory form
o Statements are usually slander as words after spoken only exist in one’s memories.
o But libel focuses on words in their permanent form e.g. published articles,
recordings – transforms the tort from slander to libel.
The Defamation Act 2013
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In 2013, the Defamation Act 2013 was passed; most of the provisions came into force on 1st
January 2014.
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The Defamation Act did not fundamentally change the law relating to defamation: it does
not change the nature of what is a defamatory statement or the legal rules relating to the
true meaning of words and whether they would lower the claimant in the eyes of ordinary
persons.
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What the Defamation Act did address were some of the criticisms that have been made of
the English law of defamation and the perception that English law was ‘claimant friendly’:
that litigants were using English courts to stifle free speech, both within England and Wales
and internationally.
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A major change, but not to the fundamental basics to the law – common law defences
abolished in favour of statutory defences – didn’t change the nature of a defamatory
statement
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The Defamation Act also changed the defences available to the defendant. In particular, the
common law defences of justification, fair comment and the Reynolds defence have now
been put on a statutory footing and the common law rules abolished. However, as the
explanatory notes to the Act make clear, these new defences of truth, honest opinion and
public interest are based on, and intended to reflect, the previous common law defences.
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What does defamation mean? Statement oral written or otherwise which is defamatory:
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Meaning of Defamation
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A statement, whether oral, written or otherwise, is defamatory if it has the
effect of exposing another to ‘hatred, ridicule or contempt’; or lowering the
claimant in the estimation of right thinking members of society.
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The law is, that a publication without lawful excuse, which tends to hold an
individual up to hatred, ridicule, or contempt, is a libel. Whether the
publication held up the plaintiff to hatred, ridicule, or contempt, is a
question for the jury.
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Whether there is an excuse or not is, in the first instance, a question of law.
There is, indeed, a rule which I may state to the jury, that it is allowable to
discuss matters of public interest in the columns of the newspapers, but it
must be done bona fide and without malice, or anything beyond what is
necessary for public discussion.
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Wilson v Reed 175 Eng. Rep. 1001; (1860) 2 F & F 149, 150 (Hill J).
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Hatred, ridicule and contempt – old definition but a more modern comes
from Lord Atkin in Simm v Stretch
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I do not intend to ask your Lordships to lay down a formal definition, but
after collating the opinions of many authorities I propose in the present case
the test: would the words tend to lower the plaintiff in the estimation of
right-thinking members of society generally? Sim v Stretch [1936] 2 All ER
1237, 1240 (Lord Atkin).
In order to make out the tort the claimant has to show:
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Elements of the Tort
A statement, by way of printed or spoken words or otherwise;
Which causes or is likely to cause serious harm to the reputation or good name of the
claimant OR serious financial loss to a commercial organisation (special damages are
financial).
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Published to a third party; can say whatever you want to someone without defaming them,
but if someone else is in the room it would be published with a third party and capable of
being slander
Serious harm – Thornton v Telegraph Media Group held there must be a ‘threshold of
seriousness, to as to exclude trivial claims’, ‘interpreted consistently with article 10 of the
Convention for the Protection of Human Rights and Fundamental Freedoms’. This is now
enshrined in the Defamation Act 2013 s1 which states there must be serious harm to the
reputation of a body that trades for profit which must cause the body ‘serious financial loss’.
Without justification, privilege or other defence
The requirement that the statement causes ‘serious harm’ or ‘serious financial loss’ has
been introduced by the 2013 Act. Formerly, harm was presumed in the case of libel. Serious
financial loss must be assessed in the context of the business – protective of free speech
especially over corporations, who protect their brand to the full extent of the law.
E.g. Mcdonalds suing the couple handing out defamatory leaflets – this would now be
thrown out of court as Mcdonald’s could not prove serious financial loss.
The Statement
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Statements may be verbal or non-verbal; and transitory or permanent. As a general rule,
written words will found a claim in libel; while spoken words will found a claim in slander.
As a rule, a claim in slander is more difficult for the claimant to make out.
Film:
Youssoupoff v Metro-Goldwyn-Mayer (1934) 78 Sol Jo 617
One of the characters in a film about Rasputin found defamatory to an actual Russian
princess.
Waxworks:
Monson v Tussauds Ltd (1894) 1 QB 691
Photographs: Plumb v Jeyes Sanitary Compound Co. Ltd (The Times, 11/4/1937);
Capable of being defamatory (brings in concept truth is only a defence)
Music:
Cosmos v BBC (unreported)
Drawings:
Tolley v Fry & Sons [1931] AC 333
o
Libel refers to publication in a permanent form, as printed or written words; also:
Film: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 78 Sol Jo 617
o
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Rasputin film – killed by Youssoupoff in 1917. Y’s wife brought the claim, over the
film’s depiction of Rasputin seducing a Russian Princess (for the film called Princess
Natasha) which was argued to be a representation of her.
Held for it to be claimed a woman was seduced when she hadn’t been was capable
of being defamatory as she would be ‘shunned and avoided’.
LJ Slesser ‘In my view, this action…was properly framed in libel. There can be no
doubt that, so far as the photographic part of the exhibition is concerned, that is a
permanent matter to be seen, by the eye and is the proper subject of an action for
libel, if defamatory’.
Waxworks: Monson v Tussauds Ltd (1894) 1 QB 691
o
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o
Everyone believed the claimant to be a murderer and Madame Tussauds placed his
waxwork next to the House of Horrors where murderers were kept. Sued as
placement suggested his guilt which was not proved beyond reasonable doubt.
Made the test of libel one that looks to the permanence or transience of a
‘statement’
LJ Lopes: ‘Libels are generally in writing or printing, but this is not necessary; the
defamatory matter may be conveyed in some other permanent form. For instance a
statute, a caricature, an effigy, chalk-marks on a wall, signs or pictures may
constitute a libel’
Photographs: Plumb v Jeyes (unreported)
o
o
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Policeman sued claiming the photograph and caption advertising a foot bath –
argued people would believe he had smelly feet and won!
Cosmos v BBC – over Music
Film about holiday camp run by Cosmos, tone of which was that it was not a good
place to stay, over the segment they played the music of TV show Colditz (about a
prisoner of war camp). Cosmos argued this suggested their establishment was equal
to a prisoner of war camp. Won claim – music can be defamatory.
Drawings: Tolley v Fry & Sons [1931] AC 333
o
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Amateur golfer – had to not receive any money for playing golf, couldn’t be in
adverts, etc
But as he appeared in advert and held to not taken any payment for this.
Held right thinking people would assume he was being payed for this and as an
amateur had taken money for this. Would lower an amateur sportsperson if they
believed he’d taken money for the game. Won claim.
Cosmos etc showed words aren’t necessary.
Statutory provisions for when spoken words are delivered to a large audience:
o
Purposes of libel and slander treated as publications for word and permanent form.
Broadcast words and words spoken: Broadcasting Act 1990 s.166(1)
o
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For the purposes of the law of libel and slander the publication of words in the course of any
programme included in a programme service shall be treated as publication in permanent
form. Someone’s writes a play – written form.
Theatrical Performances: Theatres Act 1968 s.4(1)
For the purposes of the law of libel and slander . . . the publication of words in the course of
a performance of a play shall, subject to section 7 of this Act, be treated as publication in
permanent form.
Slander v Libel: The difference
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Slander refers to words spoken or in a transitory form
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Main difference is slander to be proved must cause ‘special damage’.
Libel is actionable per se, but slander requires this proof of special injury.
In Thorley v Lord Kerry CJ Mansfield found no principle justification for the
distinction between libel and slander – as a rule slander is taken less seriously,
hence the requirement of special damages.
The Porter Committee (Report of the Committee on the Law of Defamation)
1948 stated of the distinction ‘Slander is often trivial, not infrequently goodtempered and harmless, and in that form commonly enough a topic of
conversation. If all slander were actionable per se, the scope for trivial but costly
litigation might be enormously increased…A change in the law in England and
Wales at the present date would, we think, be likely to encourage frivolous
actions’.
Contrastingly the Faulks’ Committee (Report of the Committee on Defamation
1975) considered this fear ‘unfounded’ stating ‘the distinction between libel and
slander is entirely attributable to historical accident’ and ‘renders this part of the
law unreasonable and unnecessarily complicated’
Special Damage
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The main distinction between slander and libel is that, for an action of slander to
succeed, the claimant must show ‘special damage’, in that they have suffered
some loss as a result of the slander; or that the statement fell within the cases
of slander actionable per se.
Special damage must have an economic value: that people might shun or
ostracise the claimant is not special damage, in that the society of others has no
economic value.
In cases of libel – where the statement is in permanent form – the damage must
be serious (s.1 Defamation Act 2013), but does not need to have an economic or
material value.
Roberts v Roberts (1864) 5 B & S 384; 122 ER 874
The defendant said that the plaintiff was ‘as great a whore as any in the town of
Liverpool’. This is clearly defamatory; and would cause serious harm to the
reputation of the person defamed. However, it could not support a claim in
slander. Serious accusation, suggesting they’re a prostitute causing right thinking
people to think the less of her, causing serious harm to her defamed reputation
but see Cockurn CJ’s quote below.
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Specific categories to show damage is presumed.
I think that to prevent a woman whose character for chastity is assailed from
bringing an action for the purpose of vindicating it is cruel; but, as the law at
present stands, such an action is not maintainable unless it be shewn that the
loss of some substantial or material advantage has resulted from the speaking of
the words. (1864) 5 B & S 384, 389 (Cockburn CJ). Published a statutory act
dealing with this instead.
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Extent of Special Damage
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Where the statement is repeated, is the original maker of the statement liable
for the damages that flow from its repetition?
Lynch v Knight (1861) 9 HLC 597
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To make the words actionable by reason of special damage, the consequence
must be such as, taking human nature as it is, with its infirmities and having
regard to the relationship of the parties concerned, might fairly and reasonable
have been anticipated and feared would follow from the speaking of the words.
(Lord Wensleydale).
What is the damage that is foreseeable?
Special damage occurs over the full extent of what is foreseeable:
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McManus v Beckham [2002] EWCA Civ 939
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The defendant was visiting a memorabilia shop when she saw some autographed
photos of her husband for sale. She thought that the autographs were forged and
warned other customers not to buy them. Her words were reported in the press.
As a result, the business became insolvent. It was held that the defendant was
liable for the damage caused by her statement, including the loss of business when
her words were repeated in the national press.
Had suffered a measurable, specific, financial loss as a result of the words spoken,
what was the extent of her liability?
Held it was foreseeable that as she was famous, her words would be reported in
the press, constituting slander and causing this measurable financial loss to the
claimant. Reasonable person could have foreseen this, meaning she had to pay the
owner for his business. The autographs were not actually fake meaning she didn’t
have the defence of truth either.
“I would suggest further that if a jury were to conclude that a reasonable person in
the position of the defendant should have appreciated that there was a significant
risk that what she said would be repeated in whole or in part in the press and that
that would increase the damage caused by the slander, it is not unjust that the
defendant should be liable for it. Thus I would suggest a direction along the above
lines rather than by reference to 'foreseeability'.” Per Waller LJ.
See also: Slipper v BBC [1991] 1 Q.B. 283
- Ronny Biggs – great train robber. Fled to Brazil and metropolitan police sent
officer Slipper out to retrieve him. BBC went too, documentary made slipper
seem ineffectual and idiotic – when the documentary was aired, the papers
seized upon the story and took the piss.
- BBC argued they weren’t liable for what the papers said. Court disagreed – this
was foreseeable and the BBC were liable for anyone who repeated the
statements/ libel they made.
Slander ‘actionable per se’
o Some types of statement are actionable per se, with no need to prove damage.
However, two of the former actionable per se statements have been repealed
by the Defamation Act 2013, s.14. It is no longer actionable per se to impute
that a person has an infectious or contagious disease; or to impute unchastity or
adultery to a woman (Slander of Women Act 1891 is repealed).
o Other major change is no longer actionable per se – if you want to claim a
woman’s having an affair with somebody it is not presumed, must be proved
this has caused special damage now. So in Roberts, at the time this was not
defamatory, between 41-91 it was actionable per se, but now she would need to
prove special damages.
Criminal Offences;
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To state that a person has committed a criminal offence punishable by
imprisonment is actionable per se.
Webb v Beavan (1883) 11 Q.B.D. 609
“I will lock you up in Gloucester Gaol next week. I know enough to put you
there” held to imply that the plaintiff had committed an offence punishable
by imprisonment. It was not necessary that there was an imputation of an
indictable offence.
Sufficient the offence is punishable by imprisonment, here Webb could
prove the claim without having lost any money by virtue of the statement.
Unfitness or incompetence in profession, office etc.
To state that any person is unfit or incompetent to carry on their profession, business or calling is
actionable per se: this is the most commonly invoked of the actionable per se categories.
o
o
o
o
At Common Law, it was necessary that the imputation was directly related
to the profession or business.
Necessary the imputation is directly affected by the business.
The Defamation Act 1952 s.2 extends the scope of the cause of action:
‘In an action for slander in respect of words calculated to disparage the
claimant in any office, profession, calling, trade or business held or carried
on by him at the time of publication, it shall not be necessary to allege or
prove special damage, whether or not the words are spoken of the claimant
in the way of his office, profession, calling, business or trade.’
Meaning of defamatory words:
o
There may be words which are capable of bearing more than one meaning. The
issues arises how the words should be interpreted. Irony, sarcasm, different
ways in which we speak and communicate. As a matter of law words can only
have one meaning though.
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o
o
o
o
o
This can give rise to some fairly convoluted arguments between claimant and
defendant as to what the contested words mean.
Sally Bercow – why is Lord McAlpine trending? Innocent face.
After unnamed senior tory politician was accused of sexually abusing children,
twitter during the Newsnight story began trending Lord McAlpine
Revealed the allegations were unfounded aagainst Lord McAlpine but how
should her tweet be read?
Court knew exactly what she was saying though, not the literally meaning that
count but the true and natural meaning.
What would a reasonable person with the ability to place the words in context
assume that they mean?
Capital & Counties Bank v Henty & Son 7 App Cas 741
o
o
The defendants were brewers, who owned a number of pubs. They allowed
customers to cash cheques at their pubs, and would cash the cheques at the
local branch of the plaintiff’s bank. However, a new manager at that branch
stopped cashing the cheques. As a result, the brewer sent a letter to their pub
tenants, telling them to stop accepting cheques drawn on the defendant’s bank.
If people think a bank is in financial trouble however, this causes a run on the
bank with people taking their money out immediately – self-fulfilling prophecy
causing the bank to close.
 Did they letter imply the bank was unsound?
 In deciding the question whether the words are capable of that meaning, he
ought not, in my opinion, to take into account any mere conjectures which a
person reading the document might possibly form, as to some out of various
motives or reasons which might have actuated the writer, unless there is
something in the document itself, or in other facts properly in evidence,
which to a reasonable mind would suggest those particular motives or
reasons. […]The test, according to the authorities, is, whether under the
circumstances in which the writing was published, reasonable men, to
whom the publication was made, would be likely to understand it in a
libellous sense. 7 App Cas 741,744-45 (Lord Selbourne LC).
 Can’t impute such reasons to make the statement defamatory. True natural
meaning of the words was not that the bank was in trouble.
Slim v Daily Telegraph [1968] 2 Q.B. 157
 Where, as in the present case, words are published to the millions of readers
of a popular newspaper, the chances are that if the words are reasonably
capable of being understood as bearing more than one meaning, some
readers will have understood them as bearing one of those meanings and
some will have understood them as bearing others of those meanings. But
none of this matters.
 Does not mean the words are defamatory. What matters is what the
adjudicator at the trial should have understood the words to bear.
Words over Liberace
 “…a deadly, winking, sniggering, snuggling, chromium-plated, scentimpregnated, luminous, quivering, giggling, fruit-flavoured, mincing, icecovered heap of mother love.”
 Liberace v Daily Mirror Newspapers (1959, unreported)
 Suggestion that the word ‘fruit’ meant homosexual – caused him to receive
£8,000 in damages. Having determined what the natural and ordinary
meaning was, would it have lowered the reasonable person’s opinion of the
person?
Right Thinking People
[W]ould the words tend to lower the plaintiff in the estimation of right-thinking members of society
generally?
Sim v Stretch [1936] 2 All ER 1237, 1240 (Lord Atkin) Requires only an average set of values.
Byrne v Deane; 1937
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Anonymous informant told the authorities that illegal gaming machines
were in use at a golf club. Shortly afterwards, a note appeared on the notice
board: ‘… he who gave the game away, may he byrnn in hell and rue the day’
Rumour went round that Byrne was responsible for this. Question over
whether these words were defamatory over the plaintiff being guilty of
‘underhand disloyalty’.
Court acknowledged collective solidarity in a group meant people would
condemn someone for exposing this game but Lord Greene held right
thinking person would want to prevent a crime:
L Slesser stated it could not be possible that the reporting of unlawful acts
could be defamatory in the eyes of the public.
‘In point of fact it may very well be that the Legislature in its wisdom has
made into a crime something which the public conscience of many persons
in this country does not consider involves any sort of moral reprobation; but
this Court it seems to me cannot be concerned with considerations of that
kind, and in my judgment to say of a man that he has put in motion the
proper machinery for suppressing crime is a thing which cannot on the face
of it be defamatory. (1937)1 KB 818, 840 (Greene LJ).’
Right thinking people would not condemn someone for upholding the law.
Implication:
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It is no defence to claim that the words are literally true or do not
actually defame the claimant, if they there are inevitable conclusions
that a reasonable person would draw. Reasonable persons are capable
of reading between the lines and drawing any logical conclusions from
the words or other representation and its context.
Monson v Tussauds (1894) 1 QB 691: placing a waxwork close to the
‘Chamber of Horrors’ was defamatory. Inevitable conclusion would be
drawn that Tussauds were stating Monson was a murderer.
Lewis v Daily Telegraph [1964] A.C. 234
 Daily Mail reported an accusation over Mr Lewis being investigated as a
criminal, in his capacity shareholder of a company over statements and
accounts made at the last company meeting. Lewis was later absolved of
any wrong doing.
 Dual importance over innuendo and implication:
 ‘There is no doubt that in actions for libel the question is what the words
would convey to the ordinary man: it is not one of construction in the
legal sense. The ordinary man does not live in an ivory tower and he is
not inhibited by a knowledge of the rules of construction. So he can and
does read between the lines in the light of his general knowledge and
experience of worldly affairs.’
 ‘Sometimes it is not necessary to go beyond the words themselves, as
where the plaintiff has been called a thief or a murderer…The sting is in
the inferences drawn from the fact that it is the fraud squad which is
making the inquiry’. Shouldn’t have held the paragraph to import guilt
necessarily to the plaintiffs, an oridinary man would not ‘infer guilt of
fraud merely because an inquiry is on foot’.
 [1964] A.C. 234, 258 (Lord Reid).
 Appeal was dismissed due to this lack of direction and new trials were
ordered. Accusation that the paper statement lead people to believe
Lewis was not just accused o fraud but guilty of it – implication.
 Lord Morris: ‘Some reasonable readers might therefore think that the
words conveyed the meaning that there must have been fraud or
dishonesty’ due to the effect of the publication however.
Lord Devlin’s explanation of innuendo:
‘a derogatory implication…might not be detected at all, except by a person who was already in
possession of some specific information. Thus, to say of a man that he was seen to enter a named
house would contain a derogatory implication for anyone who knew that house was a brothel but not
for anyone who did not’.
 See Cassidy v Daily Mirror Newspapers 1929 on 706 L&O – innuendo that the pictures and
words of Mrs Corrigan, announcing her engagement to Mr Cassidy implied Mrs Cassidy his
lawful wife was merely his co-habitee , masquerading as his wife.
o
o
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L Scrutton – ‘I do not agree with some dicta to the effect that if words are capable
of several meanings they should not be left to the jury. I agree with the view
expressed…in Simmons v Mitchell 1880 ‘the judge must decide if the words are
reasonably capable of two meanings; if he so decide, the jury must determine which
of the two meanings was intended;’ and by ‘intended’ I understand that a man is
liable for the reasonable inferences to be drawn from the words he used, whether
he foresaw them or not, and that if he scatters two-edged and ambiguous
statements broadcast, without knowing or making enquiry about the facts material
to the statements he makes and the inferences which may be drawn from them, he
must be liable to persons who, knowing those facts, draw reasonable inferences
from the words he publishes.’
In this case the words were capable of inferring Corrigan is a single man, published
to people who knew the plaintiff professed to be married to him – jury found it
could be inferred Mrs Cassidy was lying over this and their finding shouldn’t be
interfered with.
– Issue over identity: ‘In my view… it is impossible for the person publishing a statement
which, to those who knew certain facts, is capable of being defamatory meaning in regard to
A, to defend himself by saying: ‘I never heard of A and did not mean to injure him’ If he
publishes words reasonably capable of being read as a relating directly or indirectly to A and,
to those who know the facts about A, capable of a defamatory meaning, he must take the
consequences of the defamatory inferences reasonably drawn from his words’.
So checks must be made to ensure you aren’t being even accidentally defamatory.
If the words published hold B up to contempt and humiliation it doesn’t matter if A meant
to refer
Identity and E. Hulton Co v Jones:
o
Issue over identity of the claimant, in most cases it’s clear when someone’s publishing a
statement, who is being talked about but the issue over a defence of identity is not
permissible as seen in Hulton:
o
o
o
o
Facts – A humorous essay in the Sunday Chronicle suggested there was a person
called Artemus Jones who was in the habit of taking weekends with his mistress in
Dieppe – the article described him as a church warden from Peckham (in no way
related to the claimant thus). A barrister called Artemus Jones was tamely teased by
his colleagues for this and brought an action over defamation.
Issue was if a reasonable person could understand the article was about the
claimant, an action may be brought even if any intention is absent.
Lord Loreburn: ‘If the intention of the writer be immaterial in considering whether
the matter written is defamatory, I do not see why it need be relevant in
considering whether it is defamatory to the plaintiff…
Just as the defendant could not excuse himself from malice by proving that he
wrote it in the most benevolent spirit so he cannot shew that the libel was not of
and concerning the plaintiff by proving that he never heard of the plaintiff. His
intention in both respects equally is inferred from what he did. His remedy is to
abstain from defamatory words’.
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Analysis: Described as the ‘most famous case in the law of libel’ and the
‘most controversial’ by Denning.
Own thoughts: Surely deeply unfair as some intention must be present in
order for someone to defame another, seems to strays too far in
protectionism at the expense of free speech. Has introduced, ‘negative
checking’ – seems to run too far into ‘compensation culture’.
Barendt – ‘arguably, it is bizarre to require broadcasters to go to the lengths
they do to minimize the chance of liability for unintentional defamation.
Negative checking of reference books and lists of addresses surely goes
beyond the taking of reasonable precautions required in other areas of the
law.’
Identity continued:
Morgan v Oldhams Press 1971
o
o
o
News report stated woman had been kidnapped by a dog-doping gang,
but she was actually with the claimant at the time.
M Claimed that witnesses as a result of the report would believe M was
a kidnapper and gang member – supported by witness evidence
Held capable of being defamatory – although on a close reading of the
article it made it clear the plaintiff was not a kidnapper, the average
person does not read a newspaper article with the care with which a
lawyer would read a legal document. The general impression would be
that he was the kidnapper and this was thought to be enough.
Newstead v London Express 1940
o
o
o
Article described a Harold Newstead as a 30 year old bigamist from
Camberwell, when reporting he’d been found guilty of the crime. Newstead,
a 24 year old hairdresser from the same area, claimed right thinking people
who knew him would believe it was he who had been found guilty of bigamy
and sued in defamation.
Won claimed but only awarded derisory damages of one farthing, showing
the limited respect the jury held his reputation was worth.
Derisory damages create a technical victory for the defendant but a moral
and financial victory for the defendant. As defendants usually pay money
into court, if the damages granted are less than the money paid if by the
defendants, the claimant will have to cover the costs of litigation which
often run in to thousands of pounds.
Look-alikes cannot be defamatory:
Effect of the Human Rights Act.
O’Shea v MGN Ltd 2001: claimant complained of an advertisement appearing in
the Sunday Mirror on behalf of an adult internet service, with the model bearing
a strong resemblance to the claimant. Claimant alleged this advert suggested
she was appearing or performing on the pornographic website containing
explicit, lewd, material. Claimant pleaded, that a number of persons had
identified her with the photograph.
Held: Morland J accepted a jury might reasonably have concluded that the
claimant was the person referred to in the publication but refrained from ruling
it was defamatory on the basis that Aricle 10 prohibited imposing strict liability
for an inadvertent defamatory reference to a claimant as a result of
identification from a photograph of someone else with a similar appearance.
Lord McAlpine v Bercow [2013] EWHC 1342 (QB)
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@SallyBercow - Why is Lord McAlpine trending? *Innocent face*
Virtually everyone apologised and made the donation to the charitable
foundation he chose. Sally Bercow however, said she’d ‘swim in blood
before she apologised’.
Didn’t really have a case though, inevitable the court would find her
statement defamatory.
Bane and Antidote
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Charleston v News Group Newspapers [1995] 2 A.C. 65
Computer game had used cast of neighbour’s in a simulated pornographic scene –paper ran
a story over this stating ‘What have Harold and Marge been up to?’ implied they had made
pornographic images of themselves, if you read the article it was clear this wasn’t the case.
The article went on to make it clear the images were computer generated with the actors
faces unwittingly super-imposed onto on to the bodies of real porn models. Lord Bridge
stated the remainder of the article ‘castigate[d] the makers of the “sordid computer game”
in a tone of self-righteous indignation which contrasted oddly with the prominence given to
the main photograph’
But taken on headline value?
But the proposition that the prominent headline, or as here the headlines plus
photographs, may found a claim in libel in isolation from its related text, because some
readers only read headlines, is to my mind quite unacceptable in the light of the principles
discussed above. [1995] 2 A.C. 65, 73 (Lord Bridge).
The article have been ‘deeply offensive and insulting’ but as a whole was not defamatory –
one must consider whether the text has ‘neutralised’ the headline/ pictures.
Thus
the article is not defamatory if it contains the antidote to the defamatory allegation – cannot
isolate one part of the article here.
Innuendo – specific legal doctrine.
 In a legal sense, innuendo refers to the meaning that the defamatory words bear, given facts
that are known to some of the potential readers. For example, in Tolley v Fry, the innuendo
was that Tolley, an amateur golfer, had appeared in the advert for reward, thus
compromising his amateur status.
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For the plaintiff to establish his action of libel, he must satisfy the jury that the words are
defamatory of him either (a) in their natural and ordinary meaning, or (b) alternatively or in
addition, by reason of the fact that, in the light of some extrinsic evidence the words would
bear to the reader some meaning defamatory of him which, without such evidence, the
words would not bear in their ordinary and natural meaning. This latter branch is properly
called the innuendo.
Grubb v Bristol United Press Ltd [1963] 1 Q.B. 309, 331 (Upjohn LJ).
Lewis v Daily Mail Newspaper – see above:
‘Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has
been called a thief or a murderer…The sting is in the inferences drawn from the fact that it is
the fraud squad which is making the inquiry’. Shouldn’t have held the paragraph to import
guilt necessarily to the plaintiffs, an oridinary man would not ‘infer guilt of fraud merely
because an inquiry is on foot’.
[1964] A.C. 234, 258 (Lord Reid).
Vulgar Abuse
 It is commonly held that mere vulgar abuse or jokes at a person’s expense are not
defamatory.
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But for mere general abuse spoken, no action lies.
Thorley v Kelly 4 Taunt 355, 365 (Lord Mansfield CJ).
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Blennerhasset v Novelty Sales Services Ltd (1933) 175 LT Jo 393
However:
 Roache v News Group Newspapers (4/11/1991, Unreported) See [1998] EMLR 161
 Roache successfully sued the Sun newspaper over a report that he was ‘boring’, a ‘joke’ and
hated by other members of the cast.
 One of these is hideous…
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Berkoff v Burchill [1996] 4 All ER 1008
Julie Burchill, a well-known journalist twice made throwaway remarks about Stephen
Berkoff the film director stating in the first instance, “film directors, from Hitchcock to
Berkoff, are notoriously hideous-looking people” then in a review of Frankenstein she wrote
“it's a lot like Stephen Berkoff, only marginally better-looking.”
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The Court of Appeal held that to describe someone as ‘hideous looking’ was capable of being
defamatory. However, Millett LJ, dissenting, held
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LJ Neill; ‘Words may be defamatory, even though they neither impute disgraceful conduct to
the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or
professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude
him from society. On the other hand, insults which do not diminish a man’s standing among
other people do not found an action for libel or slander. The exact borderline may be
difficult to define’
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‘In the present case it would, in my view, be open to a jury to conclude that in the context
the remarks about Mr Berkoff gave the impression that he was not merely physically
unattractice in appearance but actually repulsive. It seems to me to say this of someone in
the public eye who makes his lving, in part at least, as an actor, is capable of lowering his
standing in the estimation of the public and making him an object of ridicule’.
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LJ Phillips held it impossible ‘a right minded person would shun another merely because a
third party and expressed distaste for that other person’s features’ and held it was for the
jury to decide whether the words had exposed Mr Berkoff to ridicule.
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‘People must be allowed to poke fun at one another without fear of litigation. It is one thing
to ridicule a man; it is another to expose him to ridicule. Miss Burchill made a cheap joke at
Mr Berkoff's expense; she may thereby have demeaned herself, but I do not believe that she
defamed Mr Berkoff’. [1996] 4 All ER 1008,1020 (Millett LJ).
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Now that there is a requirement for the claimant to show that the defamation has caused
or is likely to cause serious damage (Defamation Act 2013 s.1), it would be very difficult to
bring a claim for an insult which was not intended to be taken seriously or vulgar abuse.
Who May be Defamed
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At Common Law, a personal action dies with the person (actio personalis moritur cum
persona). However, by the Law Reform (Miscellaneous Provisions) Act 1934, all causes of
action in tort survive death, and may be continued by or against the personal
representatives, with the exception of actions for defamation.
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Dead people cannot sue for libel: see R v Topham (1791) 100 Eng. Rep. 931; 4 T.R. 126;
Wright v Gladstone (unreported).
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Generally, all natural and legal persons (including companies) may bring an action in
defamation.
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A corporation trading for profit has to show the publication caused or was likely to cause
‘serious financial loss’ (Defamation Act 2013 s.1(2)).
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Government bodies, including local authorities, cannot bring an action.
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What has been described as "the chilling effect" induced by the threat of civil actions for
libel is very important. [1993] A.C. 534, 548 (Lord Keith).
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In both cases I regard it as right for this House to lay down that not only is there no public
interest favouring the right of organs of government, whether central or local, to sue for
libel, but that it is contrary to the public interest that they should have it. It is contrary to the
public interest because to admit such actions would place an undesirable fetter on freedom
of speech. [1993] A.C. 534, 549 (Lord Keith).
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Political parties are also unable to bring a claim, for the same reasons.
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Goldsmith v Bhoyrul [1998] Q.B. 459
This was an action brought by James Goldsmith and in the name of the Referendum Party,
which he had founded. The action on behalf of the political party was struck out, applying
Derbyshire County Council v Times Newspapers [1993] AC 534.
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Politicians and individuals who work for a Government body can bring a claim:
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Bookbinder v Tebbitt [1989] 1 All ER 1169
Galloway v Telegraph Group Ltd [2006] EWCA Civ 17
Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB)
Universities are not public bodies for the purposes of bringing a claim for defamation:
University of Salford v Duke [2013] EWHC 196 (QB)