Week 10 and 11 -

Defamation
Draft Student Version. Students are expected to do their own readings
and make their own summaries of cases and concepts as per the
readings
Disclaimer
• These draft class notes do not provide any warranties, express or
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Winfield Chapter 13
• Elements of Defamation
• A defamatory statement
• That refers to the Claimant
• That is published (that is communicated to at least one person other
than the claimant)
• That causes damage to the claimant
• The elements must be proved by the claimant
Libel vs Slander
• Libel> Defamation in permanent form
• Slander> Defamation in non-permanent form
Tests
• Lowers the claimant in the estimation of right-thinking members of
society generally.
• If D defames C to C’s best friend and C’s friend does not believe a
word of it- C has still been defamed (mmm Australian law?)
• Defamation determined objectively
• (UK) Defamation Act- serious harm
Truth
• Truth is normally a complete defence to an action for defamation.
• Can still be defamatory statement- but not actionable
Defamation
• Statements that disparage a person professionally
• Must be defamatory on the eyes of persons generally rather than in
the eyes of a particular group of persons
Implication
• Defamatory statements by implication
• Jones v Skelton
Monson v Tussauds Ltd [1894] 1 QB 671
• Libel; injunction; consent
Innuendo
• Arises only when the defamatory nature of the statement depends
upon facts or circumstances which are not part of general knowledge
but which are known to the persons to whom the statement is
published.
• Each innudendo is a separate cause of action
• The claimant must identify the persons with knowledge of the special
facts to whom he alleges the words were published and prove their
knowledge and publications to them.
Mere vulgar abuse
• Spoken words that are prima facie defamatory are not actionable if it
is clear that they were uttered merely as general vituperation AND
were so understood by those who heard them.
• Same applies to words spoken in jest.
• The burden is on the defendant to show that his listeners understood
the words in a non-defamatory sense.
• This makes the manner and context in which the words were spoken
very important.
Penfold v Westcote
• Penfold v Westcote [1806] 2 B&P (NR) 335
• Libel; imputation of crime; words capable of defamation
Reference to the Claimant
• The Claimant need not be named
• A statement may refer to more than one person- A statement about A
may by implication refer to B
• Claimant may rely on innuendo to show that the reference
requirement is satisfied.
• Circumstances in which recourse may be made to subsequent
publication for identification purposes.
Newstead v London Express Newspaper Ltd
[1940] 1 KB 377
• Mistaken identity in a case of libel
O’Shea vs MGM
• Summary
• Defamation – libel – reference – photograph – look-alike – Article 10
ECHR
References to a group of persons
• Knuppfer v London Express Newspapers [1944] AC 116
• Action by individual member regarding libel on a class
Test- Knuppfer?
• 5 points (see Winfield)
Publication
• The tort of defamation is not committed unless the statement
concerned is communicated to at least one person other than the
claimant.
• The requirement of publication.
• ANY statement is capable of being a publication.
• The statement need not be published to more than single person.
• Each publication gives rise to a separate cause of action subject to
statutory exceptions- common law >>Note above,
Manager- dictates memo about fellow
employee- libel- Coy vicariously libel?
Communication between Spouses
Communication of defamatory matter by a husband to his wife or vice
versa is not a publication- what passes between them is protected on
the ground that any other rule might lead to disastrous results to social
life.
Wenhak v Morgan.
Publication must be understood by recipient
• There is no publication if it is in a foreign language that the recipient
does not understand or if he is too deaf to hear it or too blind to read
it.
• Persons who transmit information do not publish (???)
• Responsibility for publication by a third party
• Byrne v Deane [1937] 1 KB 818
• Libel; notice on club’s wall; words capable of defamatory meaning
Tamiz v Google Inc
• Summary
• Defamation – liability of ISPs – Publisher – Defamation Act 1996 –
Google Inc
The statement must be published
intentionally or negligently
• Huth v Huth [1915] 3 KB 32
• Facts
• The defendant, Captain Huth, sent an allegedly defamatory letter in
an unclosed envelope through the post to his four children. The letter
contained an implication that the children were illegitimate. The
letter was taken out of the envelope and read by a butler in breach of
his duties and out of curiosity. At trial, the claim was dismissed on the
basis that there was no evidence of publication of the libellous
information.
•
Secondary publishers?
• Innocent dissemination Defence?
DAMAGE
• Defamation requires proof that P suffered damage
• Damage presumed in LIBEL, some Slander cases.
• When the presumption of damage applies it is irrebuttable?
Libel vs Slander
• Permanent vs Non Permanent
• Statutory provisions
• Written vs Oral Communication
• Importance of distinction
Special Damage?
• Consequence of slander
• Lynch v Knight
Cases of slander actionable per se
Republication
• If D Slanders C and the case is not within one of the categories of
slander that are actionable per se C will have no action against D
unless he can establish that he suffered special damage
• Ward v Weeks (1830) 7 Bing 211
1830

�
Not Elements (NB- readings Winfield)
• Adelson v Anderson
• Reference [2011] EWHC 2497 (QB)
Court QBD
• Judge Tugendhat J
• Date of Judgment 7 Oct 2011
• Summary
• delay – Jameel abuse – availability of witnesses – enforceability of
English judgments in the USA
DEFENCES
• Truth
• D’s motive is irrelevant
• Irrelevant whether statement is in the public interest
• Failure to succeed on the defence of truth can increase damages
• The statement must be substantially true
• Repetition Rule>>D must prove that the content of the statement was
true, not merely that it was made
• Distinct charges (pg 377)
• Common sting
Williams v Reason
• Summary
• Libel – Appeal – Justification – Wider meaning – Admissible Evidence
Bookbinder
• The court held in Bookbinder v Tebbitt [1989] that it is insufficient to prove a general
allegation where the 'sting' of the defamatory statement is specific
• On appeal by the plaintiff: -

• Held, allowing the appeal, that it was a question of law whether the words complained
of were an allegation of general irresponsible spending of public money or of a specific
incident of such expenditure; that in the absence of a pleading of the context in which
the words were spoken, the court had to determine that issue solely on the pleaded
words spoken by the defendant at a public meeting; that the allegation that a spending
of £50,000 on overprinting stationery could not mean that the plaintiff as leader of the
council had been irresponsible in the expenditure of public money on other occasions;
and that, therefore, the plaintiff had properly amended the error in his statement of
claim and paragraph 6(7) to (19) of the defence would be struck out (post, pp. 645E,
646A-E, 647B-C, 651D-F, 652A-F).
Defendants pleadings + BOP
• Must make quite clear the defamatory meaning that he seeks to
justify
• Burden of Proof is on D to prove that statement in question is true.
• Standard of Proof> balance of probabilities
Absolute Privilege
• In certain situations, it is thought to be so important that people can
speak freely that the law confers complete protection from liability in
defamation including in respect of false statements.
• Falsity and Malice are irrelevant to absolute privilege
• Qualified privilege differs from absolute privilege principally in that it
is lost if D published the defamatory statement concerned
maliciously.
• Statements made in Parliament
• Reports ordered to be published by either House of Parliament
• Judicial Proceedings
• Communication between certain Officers of State
• Reports of Court Proceedings
Qualified Privilege at Common Law
• Lost if maker of the statement acted maliciously.
• Two Tests
• Toogood v Spyring
• Both tests involve reciprocity
• The defence of qualified privilege arises where the statement in question
‘In general, an action lies for the malicious publication of statements which
are false in fact, and injurious to the character of another (within the well-
known limits as to verbal slander), and the law considers such publication
as malicious, unless it is fairly made by a person in the discharge of some
public or private duty, whether legal or moral, or in the conduct of his own
affairs, in matters where his interest is concerned. In such cases, the
occasion prevents the inference of malice, which the law draws from
unauthorised communications, and affords a qualified defence depending
upon the absence of actual malice. If fairly warranted by any reasonable
occasion or exigency, and honestly made, such communications are
protected for the common convenience and welfare of society; and the law
has not restricted the right to make them within any narrow limits.’
Watt v Longsdon
• Facts. The Plaintiff, the Defendant and Browne worked for the same oil company.
Browne wrote a letter to the Defendant. Browne’s letter claimed that the Plaintiff
had an unpaid liquor bill, which Browne doubted would ever get paid, that the
Plaintiff’s maid was his mistress, even though she was an old woman and stone
deaf, almost blind and had dyed hair, that the Plaintiff had had orgies with
dancing girls, that the Plaintiff had designs on Browne’s wife, and that the
Plaintiff was a blackguard, a thief, a liar and lives exclusively to satisfy his own
passions and lust. Browne suggested that the chairman of the board of the
company be shown the letter, but not the Plaintiff’s wife until sworn statements
could be taken. The Defendant then wrote Browne a letter, which stated that the
Defendant shared the same views that bribes should be paid to get sworn
statements and that the Defendant would inform the Plaintiff’s wife, but not
without the sworn statements in hand. A few days later before the Defendant
even got a reply to his letter to Browne, the Defendant showed the letter Browne
wrote to the Plaintiff’s wife. She filed for divorce. The Plaintiff sued for libel. The
trial court ruled the letters privileged. The court of appeals reversed.
Watts v Longsdon
• Brief Fact Summary. The Defendant showed a letter to the Plaintiff’s
wife that accused the Plaintiff of several unflattering things. The
Plaintiff sued the Defendant for defamation. The Defendant claimed
that he was under a duty to show the Plaintiff’s wife the letter.
• Synopsis of Rule of Law. A speaker is privileged to make defamatory
statements about another when the speaker had either a duty or an
interest to publish the statements. The privilege may be lost if: (1)
they go beyond the limits of the duty of interest; or, (2) they may be
published with express malice, so that the occasion is not being
legitimately used, but abused.
• A speaker is privileged to make defamatory statements about another
when the speaker had either a duty or an interest to publish the
statements. The privilege may be lost if: (1) they go beyond the limits of
the duty of interest; or, (2) they is published with express malice, so that
the occasion is not being legitimately used, but abused.There are three
occasions giving rise to a privileged communication: (1) a duty to
communicate information believed to be true to a person who has a
material interest in receiving the information; (2) an interest in the speaker
to be protected by communicating information, if true, relevant to that
interest, to a person honestly believed to have a duty to protect that
interest; or, (3) a common interest in and reciprocal duty in respect of the
subject matter of the communication between speaker and recipient.
What is a Duty- Stuart v Bell

• Lindley LJ suggested that a moral or social duty meant ‘a duty

recognised by English people of ordinary intelligence and moral
principle, but at the same time not a duty enforceable by legal
proceedings, whether civil or criminal’.
The defendant’s belief that he had an interest or duty in making the
statement or communicating the information is irrelevant to the
question whether the occasion is privileged.
• Facts: Explorer and servant travelling through jungle. They stay in the
mayor of a town's house. Mayor tells explorer that the servant is
stealing from him.
Importance: Defines the traditional qualified privilege defence. Must
have moral, legal, social duty or interest to make the imputation,
recipient of information must have similar interest (or duty in case of
police) in receiving the info.
What is an Interest? Relevance?
• Mostly business or financial one (Interest)
• Relevance>>Statement may contain info unrelated to purpose of
communication>malice?
• Adam v Ward
Range of publication- Williamson v Freer
MALICE
• Malice defeats qualified privilege at common law and under statute.
• Malice means use of the privileged occasion for some improper
purpose.
• Clarke v Molyneux>>Ratio: The test of malice in a defence of qualified
privilege is ‘has it been proved that the defendant did not honestly
believe that what he said was true, that is, was he either aware that it
was not true or indifferent to its truth or falsity.’
Egger v Viscount Chelsford
Don’t forget- Qualified Privilige Under Statute
• Students to read this (Winfield) and summarise themselves.
Public Interest Defence
• 2 elements to defence
• 1) The statement in question must have been a statement on a matter
of public interest and
• 2) The defendant must have reasonably believed that publishing the
statement was in the public interest.
Reynolds v Times Newspapers
• In the Reynolds case arose following an article published by the Sunday
Times regarding the former Irish Taoisearch (prime minister) Mr Albert
Reynolds, who resigned in the midst of a political crisis in 1994. The article
asserted that Mr Reynolds had deliberately misled the Dail (Irish
Parliament) and that he had suppressed important information about his
colleague, Harold Whelehan (www.legal500.com). It was alleged that this
concealment was to assist Mr Whelehan in his bid to become President of
the High Court. It was suggested by the Sunday Times that, had the facts
not been concealed, Mr Whelehan's appointment would have been
rendered unconscionable. Mr Reynolds brought a claim for defamation
against the newspaper. The matter was heard before a jury, which found
that the newspaper was unable to prove the truth of its allegations.
Reynolds Defence (note S4 of Defamation
Act)
• matters that the court should take into account, as follow:
• The seriousness of the allegation.
• 2. The nature of the information, and the extent to which the subject
matter is a matter of public concern
• 3. The source of the information.
• 4. The steps taken to verify the information.
• 5. The status of the information, for example whether it had already been
subject of an investigation.
• 6. The urgency of the matter. (Commenting that news is often a perishable
commodity.)
• 7. Whether comment was sought from the plaintiff.
• This test has become known as "the Reynolds test". The test balances
the public interest in the freedom of speech against the public's
interest in not being misinformed by the media on important factual
issues. The test effectively directs the court to focus on whether, in all
the circumstances, the publication of the defamatory material was
"responsible", rather than simply whether the factual assertion was
accurate.
• In Reynolds, the House of Lords concluded that the article was of
public importance, and as a result attracted qualified privilege.
However, because the article did not contain a response by the
Claimant concerning the allegations made against him, the House of
Lords held that Mr Reynolds had been treated unfairly
Roberts v Gable
• Roberts & Another v Gable & others (CA)
• Reference [2007] EWCA Civ 721; [2008] 2 WLR 129; [2007] EMLR 457
Court Court of Appeal
• Judge Ward, Sedley, Moore-Bick LLJ
• Date of Judgment 12 Jul 2007
• Summary
• Defamation – Libel – Qualified privilege – Reynolds privilege – Dispute
between members of political party – Allegations of commission of
criminal offences – Reportage
Innocent Dissemination
• Defence S1 Defamation Act:
• 1. He was not the author
• He took reasonable care in relation to the publication and that he did
not know and had no reason to believe that what he did caused or
contributed to the publication of a defamatory statement.
• Cumulative requirements
• Reasonable care
• Tamiz v Google
• Internet search engines
• Metropolitan International Schools Ltd v Designtechnica Corporation
• Reference [2010] EWHC 2411 (QB)
• Court Queen's Bench Division
• Judge Tugendhat J
• Date of Judgment 1 Oct 2010

• Summary
• Defamation – publication on the internet – damages
• Issue
• The measure of damages that would provide vindication for the
damage done to commercial reputation
• Secondary Publishers > Defence> S10 Defamation Act
• Website Operators (Winfield)
• Everyone who is involved in the distribution of a defamatory
statement is regarded as a publisher
Honest Opinion
• 3 elements
• 1) Statement of Opinion
• 2) Statement must indicate in general or specific terms, the basis of
the opinion
• 3) Must be shown that an honest person could have held the opinion
based on any fact that existed at the time that the statement was
published or anything asserted to be a fact in a privileged statement.
Honest Opinion
• Public interest not an element
• Defence not restricted to certain types of person
• Honest Opinion only applies to statements of opinion
British Chiropractic Association v Singh
The statement must indicate, in general or
specific terms, the basis of the opinion.
• Joseph v Spiller
• The factual basis of the opinion is true or privileged
• The opinion does not need to be reasonable
• The defence will be lost if the defendant did not hold the opinion.
Apology -
• Defence>Offer of Amends
• Qualified Offer
• Situation if accepted vs Not Accepted
• Defence Mutually Exclusive of Other Defences
• Offer of Amends cannot be accepted after a reasonable time.
Consent
• Consent- rarely used.
• Apology not a Defence
• Procedure, Costs, Outside of UK
REMEDIES
• Compensatory damages
• Gravity of the Libel
• Extent of the Publication
• Relationship of the Claimant to the Publishees
• Unsuccessful reliance on plea of truth
• Retraction and apology
• Evidence of general bad reputation
Burstein v Times Newspapers Ltd
• Facts
Corporations
• Can sue for defamation
• But are not entitled to damages for distress, hurt and humiliation.
• Injunctive Relief
• Removal of Statements
• Court no power to order D to publish a correction (Check?)
Malicious Falsehood
• 1) The making of a false statement
• Maliciously
• To some person other than the claimant
• Damage is suffered by the claimant as a result of the making of the
statement
• It is for the claimant to prove the statement was false
• There is no presumption in claimants favour
• Businessperson making true but damaging remarks about
competitor?
Absolute Privilege
• Certain situations, important people can speak freely, law confers
complete protection from liability in defamation including in respect
of false statements.
Absolute Privilege
• Falsity and Malice are irrelevant to absolute privilege.
• Qualified privilege differs from absolute privilege principally in that it
is lost if the defendant published the defamatory statement
concerned maliciously.
• Know reasons and choices between AP and QP
• Statements made in Parliament(UK) Bill of Rights
• Reports etc published by either House of Parliament
• Judicial Proceedings
• Communication between certain Officers of State
• Reports of Court Proceedings
Toogood v Spyring
• In general, an action lie for the …publication of statements which are
false in fact, and injurious to the character of another..unless it is
fairly made by a person in discharge of some public or private duty
whether legal or moral, or in the conduct of his own affairs, in matters
where his interest is concerned. In such cases, the occasion affords a
qualified defence depending on the absence of actual malice
Qualified Privilege at Common Law
• 2 Tests
• 1) D to X about C>> D is under a legal, moral or social duty to
communicate to X and X has a corresponding interest in receiving- the
duty/interest test
• 2) Where X has an interest to be protected and D has a corresponding
interest or has a duty to protect the interest of X (the common
interest test)
De Buse Case
Relevance
• A statement that contains material that is not logically connected to
the privileged occasion will not be protected by privilege.
Warren v Warren
• D writes a letter to the manager of the property in which D and C
were jointly interested that was principally about C’s conduct in
relation to the property but which also contained charges against C in
relation to his conduct towards his family. Priviliged?
• Held>Not privilegd.
Canadian Case (not from book- general
interest)
• http://www.mwpr.ca/cgi-
bin/show_article_attachment.cgi?ID=8642&F=Judge_Punnett%2C_re
_Wilson_v._Switlo%2C_09-
28%5B1%5D.pdf&X=1523814242000/Judge_Punnett%2C_re_Wilson_
v._Switlo%2C_09-28%5B1%5D.pdf
(From Canadian case- for those interested in
reading for self-education)
• The main issues to be resolved on the plaintiffs’ claims are:
• a) Can a band council sue in defamation?
• b) Are the statements defamatory?
• c) Do the defences of absolute privilege, qualified privilege, fair comment,
or truth (justification) apply?
• d) If established, are the defences of qualified privilege and fair comment
negated by malice?
• e) Are the defendants, or some of them, liable for defamation?
• f) If so, what damages result?
• g) Is injunctive relief appropriate?
Hough v v London Express Newspaper, Limited

• The following passage of Goddard L J in the case of Hough –vs-

London Express Newspaper Ltd. (1940) 2 KB 575 was :

• “If words are used which impute discredible conduct to my friend, he

has been defamed to me, although I do not believe the imputation
and may even know that it is untrue.”
Petra Ecclestone v Telegraph Media Group
Limited
• As Sharp J reiterated, there is no comprehensive definition in libel law
of the word “defamatory”. The threshold test to be applied is whether
the words are capable of lowering the Claimant’s standing in the eyes
of the right-thinking public. Such a question can only be answered by
looking at the words in their context and considering in accordance
with the correct legal principles whether in the circumstances of the
particular case they are capable of doing so.
Petra Ecclestone v Telegraph Media Group Limited

• https://www.theguardian.com/media/2009/nov/06/daily-telegraph-
libel-case-ecclestone
New York Times V Sullivan
• Facts
• During the Civil Rights movement of the mid-20th century, the New
York Times published a full-page ad for contributing donations to
defend Martin Luther King, Jr. on perjury charges. The ad contained
several minor factual inaccuracies, such as the number of times that
King had been arrested and actions taken by the Montgomery,
Alabama police. The city Public Safety commissioner, L.B. Sullivan, felt
that the criticism of his subordinates reflected on him, even though
he was not mentioned in the ad. Sullivan sent a written request to the
Times to publicly retract the information, as required for a public
figure to seek punitive damages in a libel action under Alabama law.
• When the Times refused and claimed that they were puzzled by the
request, Sullivan filed his libel action against the Times and a group of
African-American ministers mentioned in the ad. A jury in state court
awarded him $500,000 in damages. Curiously, the Times did
eventually retract the ad's statements when Alabama Governor John
Patterson demanded it. The newspaper felt that, while Patterson also
was not named in the ad, its comments reflected more directly on
him because he represented the state of Alabama generally.
Abdul Wahab (See Course Manual) -
Justification
• A plea of justification especially put forth by the newspaper is the
subject of judicial pronouncements. For example in a case of Fraser v.
Evans & others, (1969) 1 All ER 8 Lord Denning observed :
Nishi Prem v. Javed Akhtar AIR 1988 Bom 222.
• The learned Judge referred to the "newspaper rule" prevalent in
England for over a century but observed that there are vital
Constitutional and Social interests which may have to be balanced
against the protection extended to a newspaper and there cannot be
any hard and fast rule that the newspaper should not be compelled to
disclose its source of information. The learned Judge held that the
article written by defendant No. 3 does not disclose any information
which can be said to be of public importance or of public interest and,
therefore, the disclosure of names is-directly material to the plaintiff's
case. The order passed by the learned Judge is under challenge.
• It was urged that the newspaper rule is not an absolute rule and even
if the rule is applied in this country, it should be made available only
in cases where the publication is in public interest. The article
complained of does not satisfy the requirement and, therefore,
defendant No. 3 should not be allowed to seek protection under the
newspaper rule.
• Lord Denning while deciding the appeal referred to the "newspaper
rule" by observing :
• "For well over 100 years it has been a settled rule that, when a
plaintiff sues a newspaper for damages for libel, the newspaper will
not be compelled to disclose its source of information; at any rate in
answer to interrogatories administered in interlocutory proceedings
before trial."
• After referring to earlier decisions which have been set out herein above,
Lord Denning observed :
• "Sometimes this is put as a rule of practice, on the ground that it is not
necessary at the interlocutory stage to discover the name of the informant.
At other times it is put as a rule of law, on the ground that the plaintiff has
an adequate remedy in damages against the newspaper and that it is not in
the public interest that t he name of the informant should be disclosed,
else the sources of information would dry up. But, whichever way it is put,
the court has never in any of our cases compelled a newspaper to disclose
the name of its informant save in the leading case of Attorney General v.
Mulholland (1963) 1 All ER 767 where on balance the public interest in
compelling disclosure outweighed the public interest in protecting the
sources of information."
• It was urged on behalf of the plaintiff that the disclosure is necessary in the
interest of justice and, more so, when the publication of article was malicious and
was not a matter of public interest. It was urged that the plaintiff is entitled to a
right of privacy and the character of the plaintiff cannot be permitted to be
destroyed by violent and false allegations published by the newspaper. The
argument overlooks that the defendant No. 3 has come out with the claim that
the contents of the article are substantially correct and the expression of opinion
are fair comments on a matter with which the public is concerned. It is not
possible to express any opinion on the rival claims of the parties at this stage and
disclosure of source of information cannot be directed merely because the article
is not ip good taste. The decision as to whether interrogatories should be
administered and disclosure should be directed cannot depend upon the alleged
strength of the rival claims, but must be determined on the basis of statutory
provisions under Order XI, Rule 1 of the Code of Civil Procedure and the
principles evolved by the Courts. The impugned order cannot be sustained on this
touchstone and the plaintiff is not entitled to the relief sought.
Govind Shantaram Walavalkar v/s
Pandharinath Shivram Rege