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Published: 25th Jun 2019

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Jurisdiction / Tag(s): UK Law



The right of free speech has long been considered an important one in democratic societies, but equally, democratic societies accept some degree of legal restriction on it, in order that right to free speech is balance against, for example rights to privacy or reputation, or to the need to protect national security or commercial information. Defamation is one of those restrictions, and in this country its main function is to protect reputation. Defamation has been succinctly defined by the leading tort expert Professor Winfield, “defamation is the publication of a statement which tends to lower a person is the estimation of right – thinking members of society generally, or which tends to make them shun or avoid that person. There are two types of defamation, libel and slander. Libel covers statement made in some permanent form or in written; the recent case to support it is Goldsmith v. Bhoyrul [1] . Slander applies to defamation made in a transitory form, such as spoken words or gestures. The supporting case is by the decision in White v Mellin [2] . Slander can also include bodily gestures while libel can include published photographs. According to Hedley Byrne v Heller and Partners [3] , the plaintiff must prove that the statement was false, that it was a misrepresentation, and then the defendant was wrong to say it, in breach of duty. Furthermore, the plaintiff suffered and proved harm as a foreseeable result hereby, leaving to pure economic loss as a result of the defendant’s negligent act by falsely giving information to the claimant in which the defendant ought to know about it as it was his profession. Lord Denning, in London Artists Ltd v littler [4] , said that, “In order to be fair, the commentator must get his basic facts right.  The basic facts are those which go to the pith and substance of the matter.”

While the right to fairly criticize people or entities and publicly share information is one personal freedom, it is illegal to malign the reputation of another through slander or libel. Recently the difference between slander and libel has become less distinct since speaking on public television or radio amounts to libel because of the public discrimination of the spoken words. For this reason defamation through television or radio is considered libel in countries where laws differ from state to state. “Libel” involves the publishing of a falsehood that harms someone. Slander is the same doctrine applied to the spoken word. Collectively, they are referred to as “defamation”. Both are a matter of state laws, which usually not always require that the falsehood be intentional. Hayward v Thompson [5] , Lord Denning said: “whether one or more causes of action are to be included in one verdict or judgment will depend upon the exercise of the trial Judge’s judicial discretion.” It is the practice of the English courts in defamation actions to favour a single award of damages, even where there is more than one cause of action.

In New York Times v. Sullivan [6] , the Supreme Court held that the first Amendment requires that, before a public official can recover damages for a defamatory statement, he must prove it was made with “actual malice”, even if state laws otherwise allow recovery for negligent defamation. The Court has since expanded this to cover not only public officials but public figures, including individuals who involve themselves in controversies. Although we may confused to the mixing up slander and libel because they are so similar, there is a correct way to use the terms. Basically both of these terms, slander and libel, are used when referring to any such person, object, or business to give him/her harmful side effects. Most of the time when slander or libel is used towards someone it is false.

Subject to the differences between the two types of defamation, libel and slander, the claimant must prove that the statement was defamatory, that it referred to him, and that it was published, i.e. communicated, to a third party. The responsibility will then shift to the defendant to prove any of the following three defences such as truth or justification, fair comment on a matter of public interest, or that it was made on a privileged occasion. In addition, some will put forward the following as defences in their own right, unintentional defamation, and consent.

Monson v Tussaud’s Ltd [7] , a waxworks company placed a wax model of the plaintiff (with a gun) close to the “Chamber of Horrors”. The scene of this alleged murder was also shown in the “Chamber of Horrors”, The Court of Appeal decided that these facts were capable of being defamatory and that a jury might properly deliberate on them. The plaintiff had been found “not proven” of murder by a Scottish court. Buttes Gas and Oil Co v Hammer, Lord Wilberforce stated that in a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved in the dispute. The authorities concerning acts of state were reviewed for the purpose of a submission by the defendants that the action raised issues which were non-justifiable in English courts and should therefore be stayed. The motives of governments are not justifiable and courts should refrain from adjudicating upon them. The House considered an action by an officer of the Crown taken outside this country against foreigners otherwise than under colour of legal right. The principle of non-justifiability is applicable. “The important inter-state issues and/or issues of international law which would face the court have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass.

There are no manageable standards by which to judge the issues. The court would be in a judicial no-man’s land: which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were “unlawful” under international law. I would just add that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment and there is a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states, one for judicial restraint or abstention and not one of discretion, but inherent in the very nature of the judicial process.

Then the next case under libel is, Youssoupoff v MGM Pictures Ltd [8] , the court had to consider the status of spoken words in a permanent form, in the context of a film. The court held that the film was libellous, placing an emphasis on, although not holding as decisive, the permanency of the film.

Libel is actionable in itself whereas damage must be proved for slander, except in four instances, where there is an allegation that the claimant has committed an impressionable offence; where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS and where there is an imputation that a woman has committed adultery or otherwise behaved in an ‘conduct’ fashion Slander of Women Act [9] ; or where there is an imputation that the claimant is unfit to carry on his trade, profession or calling. Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort. Furthermore, all actions for defamation must be commenced in the High Court, and it is one of the few civil actions that are still tried with juries. The Civil Procedure Rules have not removed this right as per in the case of Safeway plc v Tate [10] . It is the function of the judge to decide if the words were capable of being defamatory in the eyes of a reasonable person. If the judge rules that no reasonable person would actually conclude that the words in question were defamatory, the case will fail at that point; then If the judge rules that the words are capable of being defamatory in the eyes of a reasonable person, the words will be put to the jury and the judge will ask them to decide whether the words were defamatory Capital and Counties Bank v Henty [11] and Lewis v Daily Telegraph [12] .

A recent case on this issue is: Alexander v Arts Council of Wales [13] . Note that by section 7 of the Defamation Act 1996, the court shall not be asked to rule whether a statement is arguably capable, as opposed to capable, of bearing a particular meaning or meanings attributed to it.

Juries also decide the amount of damages to be awarded to the claimant. It is well established that jury awards for defamation are excessive, especially when compared to judicial awards for personal injuries. The Court of Appeal now has the power to substitute an award of damages instead of ordering a new trial in cases where the damages awarded by a jury are excessive or inadequate section 8 Courts and Legal Services Act 1990.

Slander is different from libel in that it refers to words that are spoken. Libel is different from slander in that it refers to words that are written.  A common term that brings slander and libel together would be defamation. When the word defamation is used it is just generally referring to any such form of slander or libel. Slander is known as the intro that relates to defamation because it was a frequent occurrence used and easily spread through the power of speech. Libel has become an equal base because it is also a detrimental way to affect a person, business, or product.

Slander would be easier to get away with because it is difficult to prove something that was only “heard” through mouth. Libel is easier to prove guilty as it can be proven by written statement or picture that was used to commit the crime. Blogs are typically used by any common person to express their opinions and feelings about anything they want. They’re opinions could be potentially negative depending on what their view is on the business, product, or person is. They should not be held accountable because they should be free to express their opinions. Gray v Jones [14] e.g. “You are a convicted person. I will not have you here. You have a conviction.”

When it comes to libel, it is easy to undo whatever has been done because if anything whatever has been exposed can be undone or hidden. Slander and libel bring about many cases which have people committing honest mistakes. Many people don’t mean to make false accusations or statements but do so, and end up being punished with the terms of a serious crime.

It is also important to make sure there is no miscommunication when it comes to slander and libel. Every little aspect could be defining when it comes to making a judgment between slander, libel, and defamation. In good condition advice would be to avoid slander or libel as a whole and mind your own business. As mothers have always taught us since we were young, “If you have nothing nice to say, don’t say anything at all.”

An early example of libel would be the case of R v John Peter Zenger [15] . Zenger was hired to publish New York Weekly Journal. When he printed another man’s article that criticized William Crosby, the governor of New York at the time, Zenger was accused of seditious libel. The verdict in the 1735 case was returned as “not guilty” on the charge of seditious libel, having proved that all the statements Zenger had published about Crosby had been true, so there was not an issue of defamation.

Another example of libel would be the case of New York Times Co v Sullivan [16] , which involved a newspaper publication. The Supreme Court overruled a state court in Alabama that had found the New York Times guilty of libel for printing an advertisement that criticized Alabama officials for mistreating student civil rights activists. Even though some of what the New York Times printed was false, the Supreme Court ruled in favour of the Times, saying that libel of a public official requires proof of actual malice, which was defined as a knowing or reckless disregard for the truth.

If a class of people is defamed, there will only be an action available to individual members of that class if they are identifiable as individuals. “If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual” per Willes J in Eastwood v Holmes [17] .

If the defendant made a reference to a limited group of people, eg the tenants of a particular building, all will generally be able to sue Browne v DC Thomson [18] .This issue was considered by the House of Lords in Knupffer v London Express Newspaper Ltd [19] .

At common law it was irrelevant that the defendant did not intend to refer to the claimant. Section 4 of the Defamation Act 1952 provided that the defence of offer of amends and the defence is now been amended and replaced by section 2 to 4 of the Defamation Act 1996, the person accepting the offer may not bring or continue defamation proceedings. If the offer to make amends fails, the fact that the offer was made is a defence and may also be relied on in mitigation of damages.

A publication made ‘maliciously’ (recklessness as to whether it was true or false) will destroy the defence of unintentional defamation. Consent of the claimant to the publication of a statement, by showing other people defamatory material which the defendant meant for the claimant only, will create a situation in which technically there has been no publication as in Thomas v Bradbury, Agnew and Co Ltd [20] the defendant had written a very unfavourable review of the claimant’s book in the magazine “Punch”. It became apparent that he had acted out of personal dislike for the writer and so his comment could not be viewed as fair. He was liable for defamation.

Noonan v Staples [21] stated that Staples manager Alan S. Noonan was fired for violating the firm’s travel and expense policy.  During an investigation a team of certified accountants and a former police investigator found numerous errors in Noonan’s expense reports. For example, a meal at McDonald’s for $1,129 or entries where the amounts were exactly $100 more than the actual amount, the sly Noonan also committed errors in Staple’s favour.  During the investigation Noonan admitted to ‘pre-populating’ expense reports with inflated false figures and failing to revise them when actual expenses were known.

The audit team concluded that Noonan had deliberately falsified the audited expense report and then Staples fired him, sometimes cited as precedent that truth is not always a defence to libel, but the case is actually not valid precedent on that issue because for some reason Staples didn’t argue First Amendment protection for its statements. The courts often do not decide cases on issues not argued by the parties, and thus the court assumed for the sake of that particular case that the Massachusetts law was constitutional under the first Amendment. Only false statements are actionable, so if the statement made about the claimant is true, there can be no action for defamation. The burden of proof is on the defendant to prove that the statement made is true; on the other hand claimant has the duty to prove that it was false.

Qualified privilege is another defence based on public interest. It applies to a broader range of statement than absolute privilege, but is subject to one restriction; it is not available if the statement complained of was made malice, which can mean with a bad motive or simply without an honest belief that the statement was true. The defence can arise under statute and at the common law. Statements made in protection of an interest, eg public interests or the defendant’s own interests in property, business or reputation, Fair and accurate reports of parliamentary proceedings, Fair and accurate reports of public judicial proceedings in the UK, eg when the report is not published contemporaneously with the proceedings and Statements privileged by section 15 of the Defamation Act 1996, which provides that certain types of statement listed in the act are subject to qualified privilege. This types of statement fall into two groups. The first group listed in the SCH 1 to the act. This defence was recently tested in Loutchansky v Times Newspapers [22] , at the trial the judge held that only information which the newspaper had at the same time could taken into account when assessing whether their decision to publish was covered by qualified privilege.

If a number of imputations are made by the defendant but only one action is brought by the claimant in respect of them, then, by virtue of section 5 of the Defamation Act 1952,stated where a statement comprises two or more different charges against the claimant, it is not necessary to prove that each charge is true, as long as the words which are not proved to be true do not materially injure to claimant reputation having regard to the remaining charges this provision is of considerable potential advantage to defendants. Lord Esher, in Merivale v Carson [23] , stated that the test was:”Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticized?”

Among other things, the 1996 Act modernised the law on innocent dissemination section 1. Reformed the ‘offer of amends’ defence for newspapers where the libel was unintentional and the newspaper is willing to publish a suitable correction and apology, with damages assessed by a judge section 2 to 4, its applies when the defendant has published a false and defamatory statement without knowing that it might be taken to refer to claimant and the defendant bears the responsibility for providing this. Section 8 to 10 to this will reduce the cost of litigation, Reduced the limitation period for defamation and malicious falsehood to one year, with discretion for the court to allow later action to proceed if reasonable. The remedies available here is damages, basically monetary compensation will be awarded and injunction.

English law allows actions for libel to be brought in the High Court for any published statements alleged to defame a named or identifiable individual or individuals in a manner that causes them loss in their trade or profession, or causes a reasonable person to think worse of them. Allowable defences are justification the truth of the statement, fair comment, whether the statement was a view that a reasonable person could have held, and privilege, whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest. An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice knowing falsity or reckless disregard for the truth. A private individual must only prove negligence (not using due care) to collect compensatory damages. To collect punitive damages, all individuals must prove actual malice.

Protecting one’s right of reputation in relation to online publications is associated with great practical difficulties .We’ve all made sacrifice to the fact that, balancing the legitimate interests of defamatory with the legitimate interests of individuals seeking to protect their reputations, is a highly complex task.

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