Topic two: Defamation
Advanced Tort WHEN GOING THROUGH REMEMBER TO WATCH LECTURE ENGAGMENT
Defamation
The law that seeks to protect your reputation.
Is a long established area of the law. Is a broad tort with two main species.
What is defamation?
‘The publication of a statement which tends to lower a person in the estimation of right-
thinking members of society generally or which tends to make them shun or avoid him’
(Winfield and Jolowicz on Tort; Sim v Stretch (1936)).
Forms of Defamation
- Libel: Permanent records of the defamatory statement
- Slander: Transitory records of the defamatory statement
Libel and slander examples.
Libel (permanently recorded) Slander (transitory records)
Written words including online, Whats app Spoken words (not recorded)
ect
Reading out a written statement to a 3rd Dictating defamatory words to a typist
party: Forrester v Tyrell (1893)
Placing a wax image of the claimant in a Gestures
‘chamber of Horrors’ at a waxworks:
Monson v Tussaud’s Ltd (1894)
Portraying the claimant in a film: Skywriting
Youssoupoff v MGM Pictures Ltd (1934)
Statements in a radio and television Radio and television broadcasts not for
broadcasts for general reception: general reception e.g. police radios
Defamation Act 1952 s16 and Broadcasting
Act 1990 s166 and 201
Public performances of plays: Theatres Act Snapchat? Thought that words on
1968 s4 transitory communication methods might
be slandatory.
The differences between libel and slander
Libel Slander
Actionability Libel is actionable per se (subject Slander is not actionable per se.
to the Defamation Act 2013 s1) The claimant can only bring an
action in slander if:
- He can prove a
measurable financial loss
or
- He can prove that one of
the exceptions to the rule
needing such loss applies.
st
1 exception is where it is a
,Topic two: Defamation
crime, 2nd exception is where
they say they are unfit for their
profession.
Criminal liability There was a form of libel which No criminal liability
could amount to a criminal
offence. Now abolished by the
Coroners and justice Act 2009 s73
with effect from 12th Jan 2010
Is more difficult to demonstrate that slander meets the serious harm requirements than
libel.
What does the claimant need to prove?
C needs to prove, on the balance of probabilities, that the words complained of:
1. Have a defamatory meaning
2. Refer to the claimant
3. Have been published and
4. That this has caused or is likely to cause serious harm (Defamation Act 2013 s1)
The Defamation Act 2013 introduced the requirement of serious harm as it was thought that
the burden that was being placed on the claimants to prove matters in a defamation claim
was insufficient. Claimants were being able to discharge their requirements of proof too
easily, then putting it on the defendant to try and use one of the defences.
This could controversy with the freedom of speech advocacy groups. Therefore, the act was
introduced to redress the balance.
Although the Defamation Act was trying to reduce the number of claims brought, hasn’t had
a significant effect. However, there are now more ways in which you can defame someone,
with a huge rise in the number of cases involving social media platforms. The rise of social
media platforms has caused a huge shift in how defamation is viewed, and where it is being
used.
(1) Defamatory meaning?
‘A statement which tends to lower the claimant in the estimation of right-thinking members
of society generally… or cause him to be regarded with feelings of hatred, contempt,
ridicule, fear and disesteem’ (Slim v Stretch (1936) per Lord Atkin).
Is often a challenging point in the claim, as you have to find the single meaning of a
particular statements that the right thinking member of society would attribute to it, then
decide whether that would lower the claim in the eyes of a right thinking member of
society?
Often have preliminary issues in defamatory cases on what the meaning of the statement is.
If the meaning is not defamatory, case ends there.
The ‘reasonable reader’ test
What is the natural and ordinary meaning of the words: that a reasonable reader/ listener
would make of the words? Skuse v Granada Television Ltd (1996); Bonnick v Morris (2002).
Objective test. Reasonable reader, not a specific group of people
,Topic two: Defamation
The reasonable reader/listener is presumed:
- To interpret words/images in their context, not to focus just on potentially
defamatory passages (or headlines): Charleston v News Group Newspapers (1995).
But how do people actually read? Charkravarti v Advertiser Newspapers Ltd (1988).
- Not to be unduly suspicious/cynical, not biased in favour of a defamatory meaning
over a non-defamatory meaning: Hartt v Newspaper Publishing Ltd (1989), Norman v
Future publishing (1998).
- To treat abusive words spoken in the heat of an argument as mere abuse, not taken
to be true and often exaggerated
- Not to be naïve, to be capable of reading between the lines
Reasonable reader test restated in the Jeynes case.
Jeynes v New Magazines Ltd (2008):
(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He
can read between the lines. He can read in an implication more readily than a lawyer
and may indulge in a certain amount of loose thinking but he must be treated as
being a man who is not avid for scandal and someone who does not, and should not,
select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided
(4) The intention of the publisher is irrelevant
(5) The article must be read as a whole, and any “bane and antidote” taken together
(6) The hypothetical reader is taken to be representative of those who would read the
publication in question
(7) In delimiting the range of permissible defamatory meanings, the court should rule
out any meaning which “can only emerge as the produce of some strained, or forced
or utterly unreasonable interpretation…” (see Eadly J in Gillich v Brook Advisory
Centres approved by this court and Gatley on Libel and Slander)
(8) It follows that “it is not enough to say that by some person or another the words
might be understood in a defamatory sense”
3- the reasonable reader takes the simple meaning, don’t have to take the difficult elaborate
meaning.
4- whether the published intended to be defamatory or not doesn’t matter
7- only look for statements which are natural readings for a reasonable reader to see
Stocker v Stocker (2019): SC were confronted with the problem about how to interpret
words on social media. Should the reasonable reader of social media be held to the same
standard as a reasonable reader of a newspaper? This arose in the context of a Facebook
post which talked about the defendant being strangled by the claimant.
- “The advent of the 21st century has brought with it a new class of reader: the social
media user. The judge tasked with deciding how a Facebook post or a tweet on
Twitter would be interpreted by a social media user must keep in mind the way in
which such postings and tweets and made and read” (Lord Kerr).
, Topic two: Defamation
Have to look at the reasonable social media user, and whether they would find it to be
defamatory.
Express meanings
Easiest words to decide whether they are defamatory is express words.
Do the words have a clear express meaning?
- ‘He is a murderer’: Lewis v Daily Telegraph (1964)
- ‘A big bum’: Cornwell v Daily Mail (1989)
- Having an affair: Stark v Mail on Sunday (1988)
- ‘boring’: Roach v Newsgroup Newspapers Ltd (1992)
- Allegation that C had committed offences: Lillie and Reed v Newcastle City Council
(2002)
- ‘bent’: Allsop v Church of England Newspaper Ltd (1972)
Term was insufficiently clear
- ‘libellous journalist’: Wakley v Cooke and Healer (1849)
More than one-off, which was true
If terms are unclear, more difficult to establish a defamatory meaning.
Implies meanings- without external sources
Although it is not said, there is a defamatory meaning implied which the reader would have
seen.
Do the words have a hidden meaning which is apparent without needing to use external
sources?
- ‘may be byrne in hell’: Bryne v Deane (1937)
- Accompanying music: Cosmos v BBC (1976)
- Hypocrisy: Donovan v The Face (1991); Cruise v Express Newspapers (1998); Quilty v
Windsor (1999).
There is an important difference between
- Statements implying guilt: actionable
- Statements implying a reasonable suspicion of guilt: not actionable (Lewis v Daily
Telegraph (1964)) e.g. you should be investigated and the right thinking member of
society thinks they should be investigated. Why newspapers don’t say they are
guilty, but it is reasonable to suspect them of guilt.
Implied meaning- using external information.
Can a claimant refer to information outside the statement to establish a hidden meaning?
Statement Additional information Meaning
Advertisement Claimant’s status as an The claimant had accepted
showing the + amateur golfer (known = money for the
claimant endorsing a to the readers of the advertisement and lost his
product (without his advertisement) amateur status: Tolley v Fry
consent) & Sons Ltd
Advanced Tort WHEN GOING THROUGH REMEMBER TO WATCH LECTURE ENGAGMENT
Defamation
The law that seeks to protect your reputation.
Is a long established area of the law. Is a broad tort with two main species.
What is defamation?
‘The publication of a statement which tends to lower a person in the estimation of right-
thinking members of society generally or which tends to make them shun or avoid him’
(Winfield and Jolowicz on Tort; Sim v Stretch (1936)).
Forms of Defamation
- Libel: Permanent records of the defamatory statement
- Slander: Transitory records of the defamatory statement
Libel and slander examples.
Libel (permanently recorded) Slander (transitory records)
Written words including online, Whats app Spoken words (not recorded)
ect
Reading out a written statement to a 3rd Dictating defamatory words to a typist
party: Forrester v Tyrell (1893)
Placing a wax image of the claimant in a Gestures
‘chamber of Horrors’ at a waxworks:
Monson v Tussaud’s Ltd (1894)
Portraying the claimant in a film: Skywriting
Youssoupoff v MGM Pictures Ltd (1934)
Statements in a radio and television Radio and television broadcasts not for
broadcasts for general reception: general reception e.g. police radios
Defamation Act 1952 s16 and Broadcasting
Act 1990 s166 and 201
Public performances of plays: Theatres Act Snapchat? Thought that words on
1968 s4 transitory communication methods might
be slandatory.
The differences between libel and slander
Libel Slander
Actionability Libel is actionable per se (subject Slander is not actionable per se.
to the Defamation Act 2013 s1) The claimant can only bring an
action in slander if:
- He can prove a
measurable financial loss
or
- He can prove that one of
the exceptions to the rule
needing such loss applies.
st
1 exception is where it is a
,Topic two: Defamation
crime, 2nd exception is where
they say they are unfit for their
profession.
Criminal liability There was a form of libel which No criminal liability
could amount to a criminal
offence. Now abolished by the
Coroners and justice Act 2009 s73
with effect from 12th Jan 2010
Is more difficult to demonstrate that slander meets the serious harm requirements than
libel.
What does the claimant need to prove?
C needs to prove, on the balance of probabilities, that the words complained of:
1. Have a defamatory meaning
2. Refer to the claimant
3. Have been published and
4. That this has caused or is likely to cause serious harm (Defamation Act 2013 s1)
The Defamation Act 2013 introduced the requirement of serious harm as it was thought that
the burden that was being placed on the claimants to prove matters in a defamation claim
was insufficient. Claimants were being able to discharge their requirements of proof too
easily, then putting it on the defendant to try and use one of the defences.
This could controversy with the freedom of speech advocacy groups. Therefore, the act was
introduced to redress the balance.
Although the Defamation Act was trying to reduce the number of claims brought, hasn’t had
a significant effect. However, there are now more ways in which you can defame someone,
with a huge rise in the number of cases involving social media platforms. The rise of social
media platforms has caused a huge shift in how defamation is viewed, and where it is being
used.
(1) Defamatory meaning?
‘A statement which tends to lower the claimant in the estimation of right-thinking members
of society generally… or cause him to be regarded with feelings of hatred, contempt,
ridicule, fear and disesteem’ (Slim v Stretch (1936) per Lord Atkin).
Is often a challenging point in the claim, as you have to find the single meaning of a
particular statements that the right thinking member of society would attribute to it, then
decide whether that would lower the claim in the eyes of a right thinking member of
society?
Often have preliminary issues in defamatory cases on what the meaning of the statement is.
If the meaning is not defamatory, case ends there.
The ‘reasonable reader’ test
What is the natural and ordinary meaning of the words: that a reasonable reader/ listener
would make of the words? Skuse v Granada Television Ltd (1996); Bonnick v Morris (2002).
Objective test. Reasonable reader, not a specific group of people
,Topic two: Defamation
The reasonable reader/listener is presumed:
- To interpret words/images in their context, not to focus just on potentially
defamatory passages (or headlines): Charleston v News Group Newspapers (1995).
But how do people actually read? Charkravarti v Advertiser Newspapers Ltd (1988).
- Not to be unduly suspicious/cynical, not biased in favour of a defamatory meaning
over a non-defamatory meaning: Hartt v Newspaper Publishing Ltd (1989), Norman v
Future publishing (1998).
- To treat abusive words spoken in the heat of an argument as mere abuse, not taken
to be true and often exaggerated
- Not to be naïve, to be capable of reading between the lines
Reasonable reader test restated in the Jeynes case.
Jeynes v New Magazines Ltd (2008):
(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He
can read between the lines. He can read in an implication more readily than a lawyer
and may indulge in a certain amount of loose thinking but he must be treated as
being a man who is not avid for scandal and someone who does not, and should not,
select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided
(4) The intention of the publisher is irrelevant
(5) The article must be read as a whole, and any “bane and antidote” taken together
(6) The hypothetical reader is taken to be representative of those who would read the
publication in question
(7) In delimiting the range of permissible defamatory meanings, the court should rule
out any meaning which “can only emerge as the produce of some strained, or forced
or utterly unreasonable interpretation…” (see Eadly J in Gillich v Brook Advisory
Centres approved by this court and Gatley on Libel and Slander)
(8) It follows that “it is not enough to say that by some person or another the words
might be understood in a defamatory sense”
3- the reasonable reader takes the simple meaning, don’t have to take the difficult elaborate
meaning.
4- whether the published intended to be defamatory or not doesn’t matter
7- only look for statements which are natural readings for a reasonable reader to see
Stocker v Stocker (2019): SC were confronted with the problem about how to interpret
words on social media. Should the reasonable reader of social media be held to the same
standard as a reasonable reader of a newspaper? This arose in the context of a Facebook
post which talked about the defendant being strangled by the claimant.
- “The advent of the 21st century has brought with it a new class of reader: the social
media user. The judge tasked with deciding how a Facebook post or a tweet on
Twitter would be interpreted by a social media user must keep in mind the way in
which such postings and tweets and made and read” (Lord Kerr).
, Topic two: Defamation
Have to look at the reasonable social media user, and whether they would find it to be
defamatory.
Express meanings
Easiest words to decide whether they are defamatory is express words.
Do the words have a clear express meaning?
- ‘He is a murderer’: Lewis v Daily Telegraph (1964)
- ‘A big bum’: Cornwell v Daily Mail (1989)
- Having an affair: Stark v Mail on Sunday (1988)
- ‘boring’: Roach v Newsgroup Newspapers Ltd (1992)
- Allegation that C had committed offences: Lillie and Reed v Newcastle City Council
(2002)
- ‘bent’: Allsop v Church of England Newspaper Ltd (1972)
Term was insufficiently clear
- ‘libellous journalist’: Wakley v Cooke and Healer (1849)
More than one-off, which was true
If terms are unclear, more difficult to establish a defamatory meaning.
Implies meanings- without external sources
Although it is not said, there is a defamatory meaning implied which the reader would have
seen.
Do the words have a hidden meaning which is apparent without needing to use external
sources?
- ‘may be byrne in hell’: Bryne v Deane (1937)
- Accompanying music: Cosmos v BBC (1976)
- Hypocrisy: Donovan v The Face (1991); Cruise v Express Newspapers (1998); Quilty v
Windsor (1999).
There is an important difference between
- Statements implying guilt: actionable
- Statements implying a reasonable suspicion of guilt: not actionable (Lewis v Daily
Telegraph (1964)) e.g. you should be investigated and the right thinking member of
society thinks they should be investigated. Why newspapers don’t say they are
guilty, but it is reasonable to suspect them of guilt.
Implied meaning- using external information.
Can a claimant refer to information outside the statement to establish a hidden meaning?
Statement Additional information Meaning
Advertisement Claimant’s status as an The claimant had accepted
showing the + amateur golfer (known = money for the
claimant endorsing a to the readers of the advertisement and lost his
product (without his advertisement) amateur status: Tolley v Fry
consent) & Sons Ltd
