DEFAMATION
Torts protecting the reputation
Traditional role of the courts
• Protection of individuals from the damage
that can be caused to the reputation by
untrue statements made about them
• Numerous complex defences have been
developed over the years
• Before the introduction of conditional fee
agreements only the very rich could afford
to bring libel claims
Balancing exercise
• Art 10 European Convention on Human Rights
protects freedom of expression. The role of the
judges in defamation cases is to ensure that
freedom of speech does not outweigh the
interests of the individual.
• Some would argue that the conflicting interests
involved cannot be balanced and that the role of
the courts should not be regarded as a
balancing exercise, as the interests are not of
equal weight.
More recent developments
• Article 10(1) ECHR states:
Everyone has the right to freedom of
expression. This right shall include
freedom to hold opinions and to receive
and impart information and ideas without
interference by public authority and
regardless of frontiers.
BUT - Art.10(2)
“The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject
to formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a
democratic society, in the interests of national
security, territorial integrity or public safety, for
the prevention of disorder or crime, for the
protection of health or morals, for the protection
of the reputation or rights of others, for
preventing the disclosure of information received
in confidence or for maintaining the authority
and impartiality of the judiciary”.
In the balance
Art.8 ECHR
The right to privacy and family life –
subject to similar exceptions.
Two forms of defamation
1. Libel – permanent form
2. Slander – transitory form
Note the practical distinctions between
the two
Note also that there may be criminal libel
Other ways of protection the reputation
• Injurious falsehood
• Malicious prosecution
DEFMATION CONSISTS OF:
“The publication of a false and defamatory
statement concerning another person
without lawful justification”
What is publication?
• The statement must be published to a person
other than the claimant alone.
• It is not actionable in civil law to make a
defamatory statement to the claimant alone out
of ear-shot of a third person, nor to write a letter
to the claimant containing defamatory material.
• If the claimant shows a potentially defamatory
letter to someone else, there is a defence of
volenti as the claimant, not the defendant, has
published the statement.
A defamatory statement
• Sim v Stretch [1936] 2 All ER 1237 :
“A statement which tends to lower the
claimant in the estimation of right thinking
members of society generally, and in
particular to cause him to be regarded with
feelings of hatred, contempt, ridicule, fear
and disesteem”. (Lord Atkin)
Note also the possibility of innuendo
Role of the jury
• To establish the standard of ‘right-thinking
members of society’
• To decide whether the claimant was
defamed
• In recent years, a much more limited role
in assessing damages
s.7 Defamation Act 1996
• The court shall not be asked to rule whether a
statement is ‘arguably’ capable of bearing a
particular meaning.
• This rule was introduced to enable the court to
fix in advance the ground rules on possible
meanings. Either party may now apply for an
order to determine before the trial whether the
words in question are actually capable of
bearing a particular meaning.
Words must refer to the claimant
• The claimant must have been identifiable
by the statement as an individual
• Note the possibility of a defence if the
claimant is named accidentally in a work of
fiction
“Without lawful justification”
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Note the numerous, and sometimes
complex defences available:
Innocent dissemination
Volenti
Accord and satisfaction
Apology and mitigation - s 3 Defamation
Act 1996, embodied in CPR Pt 53
Unqualified offer of amends under s 2
Defamation Act 1996
Defences (continued)
• Justification or truth
• Unintentional defamation
• The Electronic Commerce (EC Directive)
Regulations 2002
• Absolute privilege
• Qualified privilege
• Fair comment on a matter of public interest
• Limitation period exceeded
Remedies
• Damages
• Injunction
• Apologies in accordance with prescribed
procedures
Recent developments
• Conditional fee agreements
• Diminishing importance of the jury
• New and improved offer of amends
procedures
• Lower awards of damages
• Possibility of summary judgment in certain
cases