DEFAMATION

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DEFAMATION

• Torts protecting the reputation

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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

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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.

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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.

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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.

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In the balance

• Art.8 ECHR
• The right to privacy and family life subject
  to similar exceptions.

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Two forms of defamation

• Libel permanent form
• Slander transitory form
• Note the practical distinctions between the two
• Note also that there may be criminal libel

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Other ways of protection the reputation

• Injurious falsehood
• Malicious prosecution

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DEFMATION CONSISTS OF

• The publication of a false and defamatory
  statement concerning another person without
  lawful justification

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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.

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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

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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

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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.

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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

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Without lawful justification

• 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

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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

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Remedies

• Damages
• Injunction
• Apologies in accordance with prescribed
  procedures

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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