Libel

1
Libel Defamation

• A case study by Ann Chu

2
Berkoff v. Burchill and another

• In July of 1996, Steven Berkoff brought an action
  for damages for libel against Julie Burchill and
  the Times Newspapers Ltd.
• Berkoff claimed that in two articles (published
  by the Times Newspapers Ltd., and written by
  Burchill) statements had been made which meant
  and were understood to mean that he was
  hideously ugly.
• Berkoff claimed the statements exposed him to
  ridicule and/or would tend to cause other people
  to shun or avoid him.

3
Definition of Defamation

• Merriam-Webster To harm the reputation of by
  libel or slander
• Libel - a written or oral defamatory statement or
  representation that conveys an unjustly
  unfavorable impression
• (1) a statement or representation published
  without just cause and tending to expose another
  to public contempt
• (2) defamation of a person by written or
  representational means
• (3) the publication of blasphemous,
  treasonable, seditious, or obscene writings or
  pictures
• (4) the act, tort, or crime of publishing such
  a libel
• Slander - the utterance of false charges or
  misrepresentations which defame and damage
  another's reputation

4

• Libel addresses the eye and is in a permanent
  form whereas slander addresses the ear and is
  considered a transient form
• Millets Trinity Being exposed to hatred,
  ridicule or contempt
• The Faulks Committee Defamation shall consist
  of the publication to a third party of matter
  which in all the circumstances would be likely to
  affect a person adversely in the estimation of
  reasonable people generally.
• American Law Institutes Restatement of the Law
  of Torts A communication is defamatory if it
  tends to harm the reputation of another as to
  lower him in the estimation of the community or
  to deter third persons from associating or
  dealing with him.
• Cottrell Insults which do not diminish a mans
  standing among other people do not found an
  action for libel or slander.

5
Elements of defamatory tort action

• The comments must be heard/seen by a third
  person. What the law is concerned about is the
  esteem in which the plaintiff is assumed to be
  held in society, rather than the relationship
  between the plaintiff and the defendant.

• Li Yau-Wai, Eric v. Genesis Films Ltd.
• Sometimes published material of a person will
  expose him to light-hearted banter without the
  stage being reached where defamation becomes
  present. On the other hand, if published material
  exposes a person to ridicule of sufficient
  magnitude then defamation can occur.
• It depends on context and circumstances.

6
Steven Berkoff Julie Burchill
Vs.

• Film directors from Hitchcock to Berkoff,
  are notoriously hideous-looking people.
• The Creature is made as a vessel for Waldmans
  brain, and rejected in disgust when it comes out
  scarred and primeval. Its a very new look for
  the Creature-no bolts in the neck or flat-top
  hairdo-and I think it works its a lot like
  Steven Berkoff, only marginally better-looking.

7
The plaintiffs arguments

• Primary submission The meaning of the comments
  were defamatory because to call a person
  hideously ugly would tend to expose him to
  ridicule.
• Subsidiary submission Such a description would
  tend to cause other people to shun or avoid Mr.
  Berkoff

8
The defendants argument

• Mr. Berkoff is a director, actor and writer.
  Physical beauty is not a qualification for a
  director or writer. Mr. Berkoff does not plead
  that he plays romantic leads or that the words
  complained of impugn his professional ability
  How then can the words complained of injure Mr.
  Berkoffs reputation?
• They are an attack on his appearance, not on his
  reputation.

• Defamation has never been satisfactorily
  definedall definitions can be
  misleading if they cause one to forget that
  defamation is an attack on reputation, that is on
  a mans standing in the world.
• The reasoning suggests that the cause of
  action would more properly be classified as
  malicious falsehood rather than defamation, so
  that actual loss of custom would have to be
  proved.

9
And what about our freedom of speech?

• The International Covenant on Civil and Political
  Rights (ICCPR) continues to apply in Hong Kong
  (Article 39 of the Basic Law)
• Article 19 of the ICCPR (Freedom of opinion and
  expression)
• Everyone shall have the right to hold opinions
  without interference
• Everyone shall have the right to freedom of
  expression this right shall include freedom to
  seek, receive and impart information and ideas of
  all kinds, regardless of frontiers, either
  orally, in writing or in print, in the form of
  art, or through any other media of his choice.
• The exercise of the rights provided for in the
  above paragraph of this article carries with it
  special duties and responsibilities. It may
  therefore be subject to certain restrictions, but
  these shall only be such as are provided by law
  and are necessary
• For respect of the rights or reputations of
  others, or
• For the protection of national security or of
  public order or of public health or morals.

10
Applying free speech to the Berkoff v. Burchill
case

• Millett LJ The line between mockery and
  defamation may sometimes be difficult to draw A
  decision that it is an actionable wrong to
  describe a man as hideously ugly would be an
  unwarranted restriction on free speech I do not
  see how a humorously exaggerated observation to
  the like effect could be defamatory. People
  must be allowed to poke fun at one another
  without fear of litigation.

11
Court Analysis

• The scope of presentation The court has the
  jurisdiction to rule that as a matter of law
  words are incapable of being defamatory.
• Capital and Counties Bank Ltd v. George Henty
  Sons
• The definitions of defamatory-
• A publication without justification or lawful
  excuse which is calculated to injure the
  reputation of another, by exposing him to hatred,
  contempt, or ridicule (Parmiter v. Coupland)
• Speaking generally, the law recognizes in every
  man a right to have the estimation in which he
  stands in the opinion of others unaffected by
  false statements to his discredit and if such
  false statements are made without lawful excuse,
  and damage results to the person of whom they are
  made, he has a right of action. (Scott v.
  Sampson)

12

• The question is complicated by having to
  consider the person or class of persons whose
  reaction to the publication is the test of the
  wrongful character of the words used. Would the
  words tend to lower the plaintiff in the
  estimation of right-thinking members of society
  generally? (Sim v. Stretch)
• Words may be defamatory of a trader or business
  man or professional man, although they do not
  impute any moral fault or defect of personal
  character. They can be defamatory of him if
  they impute lack of qualification, knowledge,
  skill, capacity, judgment or efficiency in the
  conduct of his trade or business or professional
  activity (Drummond-Jackson v. British Medical
  Association)
• But also if it tends to make the plaintiff be
  shunned and avoided and that without any moral
  discredit on the plaintiffs part. (Youssoupoff
  v. Metro-Goldwyn-Mayer Pictures Ltd.)

13
What can we learn from past cases?

• Dont call someone an itchy old toad (Villers v.
  Monsley)
• If any man deliberately or maliciously
  publishes any thing in writing concerning another
  which renders him ridiculous, or tends to hinder
  mankind from associating or having intercourse
  with him, an action well lies against such
  publisher. I see no difference between this and
  the cases of leprosy and plague Nobody will eat,
  drink, or have any intercourse with a person who
  has the itch and stinks of brimstone.
• Or an old boot (Winyard v. Tatler Publishing Co.
  Ltd.)
• In their context, applied to a lady who is in
  the alleged libel itself described as a beauty
  therapist and someone on the beautician
  circuit to call such a person an ugly harridan
  is in my view something beyond mere ridicule.

14
Or compare them to a gorilla

• Zbyszko v. New York American Inc.

It was held that it isnt necessary for words to
impute disgraceful conduct if the tendency of the
article was to disgrace and bring the plaintiff
into ridicule and contempt.
15
Courts Ruling

• Neill LJ The remarks about Mr. Berkoff gave the
  impression that he was not merely physically
  unattractive in appearance by actually repulsive.
  It seems to me that to say this of someone in
  the public eye who makes his living, in part at
  least, as an actor, is capable of lowering his
  standing in the estimation of the public and of
  making him an object of ridicule.
• Phillips LJ To a degree both beauty and ugliness
  are in the eye of the beholderThere are many
  ways of indicating that a person is hideously
  ugly, ranging from a simple statement of opinion
  to that effect, which I feel could never be
  defamatory, to word plainly intended to convey
  that message by way of ridicule. The words used
  in this case fall into the latter category.
  (Dunlop Rubber Co. Ltd. V. Dunlop).

16
Have any recent cases cited Berkoff v. Burchill?

• Norman v. Future Publishing Ltd.
• Honey, I aint got no sideways.
• Vulgar undignifed
• Conformed to degrading racist African-American
  stereotypes
• Mockery of the modes of speech stereotypically
  attributed to African-Americans
• Appeal dismissed