DEFAMATION
The tort with a BAD reputation!
WHY? OLD PROBLEMS…
 Too much burden on Defendant
 Complexity of law
 The ‘Chilling Effect’ on debate. See
recent scientific research cases e.g.
Singh - addressed in 2013 Act?
 Libel Tourism- will new Act make a
difference?
 ‘A Town called Sue’
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WORTH REMEMBERING..
 Defamation actions are brought to
protect reputations so…
 People will sue even IF the
information is TRUE
 See – e.g. Lance Armstrong, Jeffrey
Archer, Jonathan Aitken, Liberace.
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DEFAMATION ACT 2013
 Is this the ‘cure’ for all the ‘faults’ in
the law prior to 1st January 2014?
 Read the various views and opinions
 Act is now in force and applies to all
material published after 1st Jan 2014.
 Read the Act online plus consultation
and reviews
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What IS Defamation?
 ‘…the publication of a statement
which reflects on a person’s
reputation and tends to lower him in
the eyes of right-thinking members of
society generally
 Or
 Tends to make them shun or avoid
him’
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SOME NOTABLE CASES
PRE 2014
 Cairns v Modi - a tweet
 McAlpine v Bercow tweet + emoticon
 Cruddas v Calvert & Others
 Thornton v Telegraph Media
 Flood v Times Newspapers
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Elements of Defamation
 The statement must be defamatory
and
 It must refer to the claimant (i.e.
identify him in some way) and
 It must be published i.e.
communicated to at least one other
person apart from the claimant
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WHO CAN SUE?
 Any living individual – an action dies
with the claimant/subject of the
material
 Companies in respect of their
business reputation and also directors
of companies if comments reflect on
them personally
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And those who can’t….
 BUT NOT local authorities, political
parties, state corporations, trade
unions or unincorporated associations
 See Derbyshire County Council v
Times Newspapers 1993 & see
comments of Lord Keith
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DISTINCTION BETWEEN LIBEL &
SLANDER
 Libel is the permanent form
 Slander is the non-permanent
(normally spoken) form
 What is permanent? – books,
anything printed, film, radio, TV,
theatre performance, sculpture or
artwork therefore
 ANYTHING we deal with as media
organisations is LIBEL
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DEFAMATION AND MALICIOUS
FALSEHOOD
 Closely related but NOT the same
 BUT something defamatory may also
come under heading of Malicious
Falsehood. However, there must be
an intention to cause loss for MF
 NO Intention required for defamation
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Some cases involving this
 Joyce v Sengupta 1993
 Thornton v Telegraph Media Group
2010
 Cruddas v Calvert & others 2013
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WHAT IS DEFAMATORY?
 Many things – words/phrases change
meaning over time
 Even the definition is difficult
Who are the right thinking members of
society?
Who is
the reasonable reader/watcher/hearer?
Is this even relevant now? See later….
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Roles of Judge and Jury
 Note there have only been one or two
jury trials in last few years
(e.g.Frankie Boyle).
 New Act states that juries will only
be used on rare occasions.
 So Judge will now hear and
decide case. Judge has to give
reasons for decision – juries did
not!
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WHY the reduction in jury
trials?
 Their use made trials longer and
more costly e.g. See comments of SC
in Spiller v Joseph 2010
 Trials and issues very complex
 BUT could a jury serve a useful
purpose? What do YOU think?
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REQUIREMENT OF SERIOUS
HARM
 This is an important new requirement
for the claimant.
 Must show material has caused actual
harm or is likely to cause serious
harm to reputation of claimant
 Lachaux v Independent Print 2015
 For trading bodies this means serious
financial loss
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Construction of words used
 2 issues to consider
 a. what is the ‘ordinary & natural
meaning’? May be the literal meaning
or something obvious – reading
between the lines
 ‘Bane & Antidote’ - take material as
a whole – Charleston v News Group
Newspapers
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Construction continued…
 B. Innuendo or implication
 Must be some hidden meaning –
Tolley v Fry & Sons Ltd 1930
 Baturina v Times Newspapers Ltd
[2011] 1 WLR 1526
 Juxtaposition – Monson v Tussauds
[1894] 1 QB 671
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INNUENDO CONTINUED
 If statement is capable of more than
one meaning the claimant MUST be
able to show that people would take
the defamatory meaning as the true
one – Important!
 Is the material’ mere vulgar abuse’?
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The advert for ‘Tolley’
The Caddy to Tolley said ‘Oh Sir,
Good Shot Sir! That ball see it go, Sir.
My Word how it flies
Like a cartet of Frys
They’re handy, They’re good and priced
low, sir.’
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What is the claimant accused
of?
‘Chase’ levels 1 – 3
 Level 1 – the claimant is guilty of a
serious offence
 Level 2 – there were grounds to
suspect him of something serious
 Level 3 – there were grounds to
investigate the matter – See Flood
2012
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CLAIMANTS
 Must be identifiable – may be
tricky
 Care must be taken in reportsenough material to identify the
correct person!
 King v Dog World (2003)
 Can you defame a group? Possibly
but it all depends on the size of the
group
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PROBLEMS WITH THE
INTERNET
 Responsibilities of ISPs – new rules
under s.5 of Act
 Mumsnet case
 Applause Store Productions & Firsht v
Raphael (2008) - Facebook case
 Taking material down and the
‘publication rule’
 ‘John Doe’ & ‘Spartacus’ orders
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