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9.2 Defamation, Libel, Slander and Defences Lecture

Defamation is the act of publishing an untrue statement which negatively affects someone’s reputation. Taken at face value this definition is obviously far reaching. Luckily, both common and statute law has developed a framework to limit the extent of the tort of defamation.

They key authority is the Defamation Act 2013, which helps straighten out the significant body of case law which has built up over the years. The overall aim of the act was to rebalance the law towards protecting freedom of speech.

The same general definition of defamation still applies, but its elements have been slightly recast by the Act. The four primary components of defamation are:

  1. A defamatory statement;
  2. About the claimant;
  3. Which is published; and
  4. Which has caused or is likely to cause serious harm to the claimant’s reputation.

Libel and Slander

Libel and slander are simply two different types of defamation; defamation is the overarching tort, libel and slander are just two different ways of committing that tort. They both remain privy to the general principles governing the tort of defamation.

Libel

Libel refers to permanent defamatory statements, such as that which is written, broadcast, or otherwise performed; s.1 of the Defamation Act 1952; s.28 of the Cable and Broadcasting Act 1984; s.4(1) of the Theatres Act 1968.

The ‘permanence’ requirement doesn’t mean ‘forever’, but rather communication which exists for longer than the time the original message is communicated. Thus, the courts have gone as far as suggesting that skywriting can constitute libel since the writing takes time to disperse, as in Gulf Oil (GB) Ltd v Page [1987] Ch 327.

Words are not necessary; it merely must be a type of permanent communication, Monsoon v Tussauds Ltd [1934] 50 TLR.

It should be noted that libel is also a criminal offence, as well as a tort.

Slander

Slander is a defamatory statement which is non-permanent. The key example is spoken word. Gestures can also constitute slander, since they are a form of non-permanent communication.

Because non-permanent statements have a lesser effect than permanent statements, a claimant must show that they have suffered a ‘special loss’, in effect a loss which can be estimated in monetary terms. The courts however have stretched this definition to include loss of a marriage prospect, Speight v Gosnay [1891] 60 LJQB 231, and loss of consortium, Lynch v Knight [1861] 9 HLC 777.

There are two exceptions to this rule. Firstly, if it is imputed that the claimant has committed a criminal offence punishable by imprisonment, as per Gray v Jones [1939] 1 All ER 798. Secondly, if the statements are calculated to disparage the claimant in his or her profession, business or office, Foulger v Newcomb [1867] LR 2 Ex. 327. It should be noted that the statement must be based on the claimant’s calling, rather than merely being an unrelated statement which nevertheless might affect others’ perception of the claimant’s ability to undertake that calling, Jones v Jones [1916] 2 AC 481; Thompson v Bridges [1925] 273 SW 529.

Slander is not a criminal offence.

Elements of Defamation

(1) The Statement Must Be Defamatory

The definition of a defamatory statement is found in the common law. The general concept can be found through reference to a number of cases.

  • The first instance of note is the definition advanced in Parmiter v Coupland [1840] 6 M&W 105 where Parker B defined it as “[a] publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing them to hatred, contempt or ridicule”.
  • This definition can be added to that employed in Sim v Stretch [1936] 2 All ER 1237, where Lord Atkin noted that the definition had widened to include words which “tend to lower the plaintiff in the estimation of right-thinking members of society.”

There is no need for a claimant to show that the statement made had a particular effect on certain persons, or the public in general, instead they must simply argue that the defamatory statement would have had the abovementioned negative effect on the claimant’s reputation in the mind of an ordinary, reasonable recipient. This principle is essentially included in s.1(1) of the 2013 Act, which dictates the need to show either serious harm, or likely serious harm to reputation.

As a general rule, statements which are clearly a matter of raised passions or vitriol will not be regarded as defamation, since the ordinary person will usually be held to know the difference between a statement made out of anger and one made calmly, Penfold v Westcote [1806] 2 B & P (NR) 335

With the general definition above in place, the nature of a defamatory can be best understood through its application, as in Byrne v Deane [1937] 1 KB 818 where the difficulty in applying defamation was shown to involve not only evaluating the words used and their context, but also the meaning that might reasonably be given to those words.

The scope of defamation can be seen in a wide range of scenarios. In Berkoff v Birchill [1996] a statement not ordinarily defamatory was held to be so due to the claimant’s profession. In Donovan v The Face [1992] (Unreported) an accusation itself was not defamatory, but the implication was that the claimant was intentionally deceiving the public. See also the case of Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331.

Defamation also need not be particularly insidious, Tolley v Fry & Sons Ltd [1931] AC 333.


(2) The Statement Must Be About the Claimant

It must be established that the defamatory statement is about the claimant. This will usually be simple, if the claimant is named or identified. Sometimes, the exact subject of a statement will be unclear. Nevertheless, if the claimant can be identified from the information included in the statement, then this criterion will be satisfied, as in Morgan v Odhams Press [1971] 1 WLR 1239.

If a statement is made about an individual which is true, but through coincidence also applies to another individual (who can be identified, as per Morgan v Odham Press) for whom it is untrue, then a claim will still exist. This is illustrated by Newstead v London Express Newspaper Ltd [1940] 1 KB 377.

There is a limit to this principle, because there comes a point at which a statement does not refer to identifiable individuals, but to a class of persons. This can be seen in Knuppfer v London Express Newspapers [1944] AC 116. The claim here, failed – there was nothing in the article personally identifying the claimant.

There thus exists a vague point at which a reference to a class becomes a reference to identifiable individuals. This can be seen in Le Fanu v Malcolmson [1848] 1 HLC 637.

(3) The Statement Must Be Published

As noted above, defamation is about communication of a statement. This is referred to as publication, although this term has a specific legal meaning. The definition can be found in Pullman v W. Hill & Co Ltd [1891] 1 QB 524. Lord Esher MR provided that “[t]he making known of the defamatory matter after it has been written to some person other than the person of whom it is written”. Intention is also necessary.

If it is reasonably foreseeable that a third party will read or receive a defamatory statement which is sent directly to the claimant, then that will constitute publication, as in Theaker v Richardson [1962] 1 WLR 151. See the case of Huth v Huth [1915] 3 KB 32 to demonstrate a lack of requisite foreseeability.

(4) The Statement Must Cause Serious Harm

This criterion is a new development, brought into force by s.1 of the 2013 Act. Although the case law on this point is sparse, there exists one noted case, in the form of Cooke v MGN Ltd [2014] EWHC 2831.

Defences

Truth

As per s.2(1) of the 2013 Act, if a statement is true, then this will form a complete defence. It should be noted that the burden of proof for showing that a statement is true rests with the defendant. The defendant does not have to show that every single characteristic of the statement made is true, merely that it is substantially true. This can be seen Alexander v North Eastern Railway Co [1865] 6 B & S 340.

Privilege

Individuals in certain roles are protected from defamation claims. This takes two forms; the first being absolute privilege. This is enjoyed by Parliamentarians (as per the Bill of Rights 1668) and members of the judiciary (as per s.14 of the Defamation Act 1996).

The second is qualified privilege, as per s.15 of the 1996 Act, and covers situations in which an individual is obliged morally or statutorily to communicate information. Whilst an inaccurate reference can be damaging, it will not give rise to a defamation claim here. The exception is if a reference is made maliciously (as per Spring v Guardian Assurance plc [1994] UKHL 7.)

Public Interest

As per s.4 of the 2013 Act, if a statement is made on a matter of public interest, and the defendant reasonably believes that publishing the statement is in the public interest. Although there is little guidance on what exactly constitutes public interest since 2013, Reynolds v Times Newspapers Ltd [2001] 2 AC 127 provides a list of the factors which indicate whether a statement is made in the public interest or not:

  • Seriousness;
  • Subject matter;
  • Source;
  • Verification;
  • Status;
  • Urgency;
  • Comment from the claimant;
  • Balance;
  • Tone; and
  • Circumstances.

In essence, the courts are seeking to make a distinction between diligent, proper journalism published in good faith, and disingenuous editors attempting to use the public interest defence to protect poor quality, salacious reporting.

Honest Opinion (Or ‘Fair Comment’)

As per s.3 of the 2013 Act, honest opinion will not be considered defamation. The key to advancing this defence is that the statement must be presented as opinion, rather than fact, and that the statements made are ones which are actually matters of opinion, rather than fact.

The opinion must also be one which the court regards as one which a reasonable person might form based on the facts available to them – so conjecture which ignores obvious evidence to the contrary will not be protected by this defence.

Reportage

As per s.7 of the 2013 Act, there are a variety of situations in which simply reporting what another has said will be protected from defamation claims. This is based on the distinction between republishing a statement, and merely reporting that a statement has been made.

Website Operators

As per s.5 of the 2013 Act, a website owner can defend itself from defamation claim by simply pointing out that the statement was not one they made, but instead it was one made by a user.

A claimant can defeat this defence if they show that it was impossible for them to identify the original author of the statement. Thus if a website operator provides users with absolute anonymity, then it will be held responsible for the content posted there. A claimant can also defeat this defence by showing that they asked the website operator to remove the defamatory statement, but that they failed to do so.

Further Notes

The Dead Can’t Be Defamed (or Defame)

Although the tort is one of injuring reputation, this only applies to the reputations of the living.

Trial by Jury (with Permission)

There exists the ability for a defamation claim to be heard by a jury. This used to be a right, but s.11 of the 2013 Act has removed it, allowing a trial by jury if ordered by a court. The willingness of the courts to do this is doubtful, considering the added cost, time, and unreliability this would add to any given case.

Limitation Period

The limitation period for claims for defamation is unusually short, lasting only a year in time from when the statement occurred as per s.4A of the Limitation Act 1980. If a statement is made and then repeated (in a form which is substantially the same), then this time limit starts upon the first instance of publication, as per s.8 of the 2013 Act. This does not apply to publication in a materially different form.

Company Reputation

Unless the harm is of a serious financial nature, organisations which trade for profit cannot bring a claim for defamation, as per s.1(2) of the 2013 Act.


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