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Defamation
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Introduction

In English common law, in general a person is entitled to his good name and to the esteem in which he is held by others, and has a right to prevent any other person from damaging his reputation by publishing defamatory statements without lawful justification.

Although based on common law, the elements of defamation have been much modified by statute, most recently by the Defamation Act 2013. Since 2013, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. Harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss." [Defamation Act 2013 s. 1]

Libel and slander

Libel: in the case of a defamatory statement made in writing, print or some other permanent form, the tort of libel is committed. In this case, the law presumes damage has or may occur and the claimant need not prove damage [Ratcliffe v Evans [1892] 2 QB 524 at 528, CA, per Bowen LJ; South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 145].

Slander: in the case of a defamatory statem,ent in oral or other transient form, the tort of slander is committed. In this case, to make out the tort the claimant must generally prove that the defamatory statement caused actual damage [Stanhope v Blith (1585) 4 Co Rep 15a; Hopwood v Thorn (1849) 8 CB 293; Savile v Jardine (1795) 2 Hy Bl 531; Davies v Solomon (1871) LR 7 QB 112]. However there are exceptions to this rule which include:

* words imputing a criminal offence, unchastity to a female or certain contagious diseases;

* words calculated to disparage a person in any office, profession, calling, trade or business held or carried on by him at the time of the publication [but note the requirement under the Defamation Act 2013 s. 1 that the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss].

European Convention on Human Rights

The tort of defamation is consistent with the European Convention on Human Rights. This follows because:

* Article 8 of the Convention encompasses the right to reputation as part of the right to respect for private and family life; and

* Article 10(2) permits the restriction of the right to free expression for among other things the protection of the reputation or the rights of others [Human Rights Act 1998].

Offer of amends

Under the Defamation Act 1996, a publisher can make an offer of amends. This is an offer to publish a suitable correction and a sufficient apology and to pay the claimant compensation and costs. If the offer to make amends is not accepted by the claimant, then it will be a defence to defamation proceedings unless the claimant can prove that the defendant knew or had reason to believe that the statement complained of:

* referred to the claimant or was likely to be understood as referring to him or her; and

* was both false and defamatory

 

Defamation Act 2013

Introduction

Following the commitment in the Coalition Agreement to review the law of defamation, the Government published a draft Defamation Bill in July 2010 and the public consultation closed in June 2011. Pre-legislative scrutiny of the draft Bill was undertaken by the Parliamentary Joint Committee on the Draft and its final report was published in October 2011. The Government response to the Joint Committee’s report was published in February 2012. Royal Assent was given to the Defamation Act on 25 April 2013.

The Government's policy in implementing the Defamation Act 2013 is to 'reverse the chilling effect on freedom of expression current libel law has allowed, and the prevention of legitimate debate we have seen in the past. For example, some journalists, scientists or academics have faced unfair legal threats for fairly criticising a company, person or product'.

The Act introduces a new serious harm threshold in order to discourage trivial claims which harm freedom of speech and unnecessarily take up court time.

Changes to the law of defamation

The Defamation Act 2013 (Commencement) (England and Wales) Order 2013 (SI 2013/3017) brings into force on 1 January 2014, in England and Wales, those provisions of the Defamation Act 2013 which did not come into force on the day of Royal Assent. The provisions include:

* serious harm: a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant;

* truth: the common law defence of justification is replaced by a new statutory defence of truth, intended to simplify and clarify the current law;

* honest opinion: the common law defence of fair comment is replaced by a new defence of honest opinion again intended to simplify and clarify the current law, although it does away with the current requirement for the opinion to be on a matter of public interest;

* publication on matter of public interest: a new defence is created to an action for defamation of publication on a matter of public interest. It is based on the existing common law defence established in Reynolds v Times Newspapers [2001] 2 AC 127 and is intended to reflect the principles established in that case and in subsequent case law;

* operators of websites: a new defence for the operators of websites is created where a defamation action is brought against them in respect of a statement posted on the website;

* peer-reviewed statement in scientific or academic journal: a new defence of qualified privilege is created relating to peer-reviewed material in scientific or academic journals (whether published in electronic form or otherwise);

* reports protected by privilege: the provisions contained in the Defamation Act 1996 relating to the defences of absolute and qualified privilege are extended;

* single publication rule: a single publication rule is introduced in order to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period from the date of the first publication of that material to the public or a section of the public. This replaces the longstanding principle that each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period;

* action against a person not domiciled in the UK or EU and other states: those bringing defamation actions in the UK against non-domiciled persons must satisfy the court that England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement;

* action against a person who was not the author, editor etc: ) the circumstances are limited in which an action for defamation can be brought against someone who is not the primary publisher of an allegedly defamatory statement;

* jury trial: the presumption in favour of jury trial in defamation cases is removed.

Website operators

The Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028) introduces from 2 December 2013 provisions relating to the new defence contained in the Defamation Act 2013 for website operators who are sued in relation to defamatory content posted on their website.

The Order:
* sets out rules on time limits which apply to actions which must be taken by the operator;
* sets out information required in the claimant’s notice of complaint in addition to that set out in the Act;
* sets out the steps which the operator must take when he receives written notice from the claimant.

The Ministry of Justice has published Guidance on Section 5 of the Defamation Act 2013. Section 5 (subject to regulations made under it) provides a defence for a website operators where an action for defamation is brought against the operator in respect of a statement posted on the website. If the operator correctly follows the required process of dealing with a formal noticeof complaint, he will have a defence to a defamation claim.

If the operator does not follow the Section 5 procedure, he will be open to a claim for defamation unless he can establish one of the general defences, e.g. truth or honest opinion.

Remedies

The usual remedies of damages and injunction are available.

What’s new item [see What’s new page or archive for full item]:

14/08/2014: Landlord company and CEO fail in defamation suit v Sunday Mirror
http://www.bailii.org/ew/cases/EWHC/QB/2014/2831.html

Cooke and another v MGN Ltd and another

The judge noted that both the claimants accepted that there was no specific evidence that the article had caused serious harm to their reputations and he considered that such serious harm could not be inferred. He took into account the publishers’ apology. He found that they had also failed to show that it was more likely than not to cause serious harm to their reputations in the future.

15/07/2014: Bengali community money transfer business awarded damages for defamation

Kadir and another v Channel S Television Ltd
[2014] EWHC 2305 (QB) Hearing Date: 5 July 2014

The claimants in this case were the owners and operating company of a money transfer business in London, serving the Bengali community.

26/02/2014: Court of Appeal rejects Thai football official’s defamation claim v Lord Triesman
http://www.bailii.org/ew/cases/EWCA/Civ/2014/179.html
Makudi v Baron Triesman of Tottenham
[2014] EWCA Civ 179
Article 9 of the Bill of Rights [1689 or 1688 old style calendar] provides among other things: ‘That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament’.
This case was concerned with the question whether the Bill of Rights protect words spoken outside Parliament.

07/02/2014: Scottish guest house may not sue Trip Advisor in Scotland
http://www.bailii.org/scot/cases/ScotCS/2014/2014CSOH20.html
Martin Clark and Another v Tripadvisor LLC
[2014] ScotCS CSOH_20  Hearing Date: 6 February 2014
In this Scottish case, the petitioners (i.e. claimants) operated a guest house in Kinlochleven, Scotland. In 2012, unfavourable and defamatory reviews appeared on the TripAdvisor website. The website was operated by the respondents who were incorporated under the law of the Commonwealth or State of Massachusetts, USA. and have their principal place of business in that state. The respondents had an office in London but no presence within the Scottish jurisdiction.

24/12/2013: Police officer awarded GBP 60.000 damages for libel
Flood v Times Newspapers Ltd
[2013] EWHC 4075 (QB) Hearing Date: 19 December 2013
The High Court awarded due to a police officer following publication of a newspaper article (print and online) which had wrongly identified him as a corrupt police officer and then failed to publish an update after a police internal investigation had cleared the claimant of any wrongdoing.
Detective Sergeant Gary Flood of the Metropolitan Police Service ("MPS") and was a member of its Extradition Unit. The Times was ordered to payf damages for the period between the newspaper finding out that the claimant had been cleared of wrongdoing and the date when it made reference to that on its website. The amount was assessed at GBP 45,000 to reflect the distress, anxiety and suffering of the claimant, the damage to his reputation and the need for proper vindication. A further GBP 15,000 was added to represent the aggravation of those damages by reason of the defendant's conduct and to serve as a deterrent to those who embarked upon public interest journalism but thereafter refused to publish material which, in whole or in part, exculpated the subject of the investigation.

[Page updated: 17/08/2014]

 

 

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