DEFAMATION - Centre for Journalism at the University of Kent
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Transcript DEFAMATION - Centre for Journalism at the University of Kent
DEFAMATION
The tort with a BAD reputation!
WHY SO BAD?
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 RECENT CASES
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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Cases to look at
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?
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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 or is likely to
cause serious harm to reputation of
claimant
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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