W8 – DEFAMATION
The structure of tort law
Negligence: focused on the quality of D’s conduct, not any particular
interest of, or harm suffered by, C. This is the biggest tort because you
can be careless in any scenario and interaction.
Traditional torts: directed to particular interests/harms:
o Assault—bodily harm/safety; don’t hit each other without consent.
o False imprisonment—freedom of movement
o Trespass—physical interference with or intrusion upon land
Defamation
• Defamation protects reputation.
• What is reputation?
• Our reputation is what others think about us and it is harmed when
others think less well of us.
• How can others harm our reputations?
• By what they say about us.
• The tort of defamation is policing what people say about others.
Reputation vs free speech
The law’s protection of reputation is therefore pitted against its protection
of freedom of expression.
Different legal systems deal with this issue differently.
The law could potentially be abused this way e.g. Govt’s silencing media.
How are these values to be balanced?
Libel and slander
• Defamation comes in two forms
1. Libel
• Statements made in permanent form: eg writing
2. Slander
• Statements made in impermanent form: eg spoken
• Why does it matter?
1. Unlike libel, slander ordinarily requires proof of financial loss
alongside damage to reputation.
2. Exceptions: allegations of serious criminality or that C is unfit for job
Elements
1. D made a statement that is defamatory,
2. Refers to C,
3. Communication to some other person,
4. No defence.
ELEMENTS EXPLORED:
Defamatory
Defamatory = harmful to one’s reputation
o Lower the claimant in the estimation of right-thinking members of
society: Sim v Stretch
, Now requires ‘serious harm’: s 1 Defamation Act 2013 (see Lachaux v
Independent Print). Not just reduce reputation. It has to be worse, e.g.
jumping the que is rude but it is not going to seriously affect your
reputation.
Sometimes defamation has been extended beyond cases of reputational
harm to cases where the statement has some other, negative effect on
the way the claimant is seen or treated.
o Eg allegations of illness, exposing C to ridicule
o Insulting/hurtful language not enough
o Berkoff v Burchill: Stephen Berkoff is an actor and Julie Burchill and
describes Birkoff as hideously ugly. He did not like this and sued for
defamation. The CofA held that it is just about defamatory. This is
because while calling someone hideously ugly will not necessarily
damage their reputation, in this case it just about does, because
Birkoff is an actor and in acting, the face of the actor becomes an
icon and becomes watched in plays etc. so people may think less of
him or refer to what Birchill said about him when looking at him.
Meaning
To establish whether a statement is defamatory, we need to know what it
means
Words may not mean, or mean only, what they literally convey
o Natural implication: C is being investigated for a particular crime
Implication that C has acted in a way which arouses suspicion
(Lewis v Daily Telegraph)
Contextual implication: C had a romantic dinner with X
o Context: C is married to someone other than X
o Must be communication to at least one person who had this
information
Refers to C
• Can refer to C without naming him/her
• Leader of the Opposition, Convenor of LL104
• What matters is not what D intended but how reasonable people would
understand the statement
• Newstead v LEN
• Newspaper story about Harold Newstead, a 30 year old man from
Camberwell, on trial for bigamy
• A different Harold Newstead, also around 30, also from Camberwell,
sued
Groups
• My students are useless’
• Every one?
• The bigger the class, the less likely we are to say that the statement refers
to every single person within the class
• How would words reasonably be understood?
Communication
The structure of tort law
Negligence: focused on the quality of D’s conduct, not any particular
interest of, or harm suffered by, C. This is the biggest tort because you
can be careless in any scenario and interaction.
Traditional torts: directed to particular interests/harms:
o Assault—bodily harm/safety; don’t hit each other without consent.
o False imprisonment—freedom of movement
o Trespass—physical interference with or intrusion upon land
Defamation
• Defamation protects reputation.
• What is reputation?
• Our reputation is what others think about us and it is harmed when
others think less well of us.
• How can others harm our reputations?
• By what they say about us.
• The tort of defamation is policing what people say about others.
Reputation vs free speech
The law’s protection of reputation is therefore pitted against its protection
of freedom of expression.
Different legal systems deal with this issue differently.
The law could potentially be abused this way e.g. Govt’s silencing media.
How are these values to be balanced?
Libel and slander
• Defamation comes in two forms
1. Libel
• Statements made in permanent form: eg writing
2. Slander
• Statements made in impermanent form: eg spoken
• Why does it matter?
1. Unlike libel, slander ordinarily requires proof of financial loss
alongside damage to reputation.
2. Exceptions: allegations of serious criminality or that C is unfit for job
Elements
1. D made a statement that is defamatory,
2. Refers to C,
3. Communication to some other person,
4. No defence.
ELEMENTS EXPLORED:
Defamatory
Defamatory = harmful to one’s reputation
o Lower the claimant in the estimation of right-thinking members of
society: Sim v Stretch
, Now requires ‘serious harm’: s 1 Defamation Act 2013 (see Lachaux v
Independent Print). Not just reduce reputation. It has to be worse, e.g.
jumping the que is rude but it is not going to seriously affect your
reputation.
Sometimes defamation has been extended beyond cases of reputational
harm to cases where the statement has some other, negative effect on
the way the claimant is seen or treated.
o Eg allegations of illness, exposing C to ridicule
o Insulting/hurtful language not enough
o Berkoff v Burchill: Stephen Berkoff is an actor and Julie Burchill and
describes Birkoff as hideously ugly. He did not like this and sued for
defamation. The CofA held that it is just about defamatory. This is
because while calling someone hideously ugly will not necessarily
damage their reputation, in this case it just about does, because
Birkoff is an actor and in acting, the face of the actor becomes an
icon and becomes watched in plays etc. so people may think less of
him or refer to what Birchill said about him when looking at him.
Meaning
To establish whether a statement is defamatory, we need to know what it
means
Words may not mean, or mean only, what they literally convey
o Natural implication: C is being investigated for a particular crime
Implication that C has acted in a way which arouses suspicion
(Lewis v Daily Telegraph)
Contextual implication: C had a romantic dinner with X
o Context: C is married to someone other than X
o Must be communication to at least one person who had this
information
Refers to C
• Can refer to C without naming him/her
• Leader of the Opposition, Convenor of LL104
• What matters is not what D intended but how reasonable people would
understand the statement
• Newstead v LEN
• Newspaper story about Harold Newstead, a 30 year old man from
Camberwell, on trial for bigamy
• A different Harold Newstead, also around 30, also from Camberwell,
sued
Groups
• My students are useless’
• Every one?
• The bigger the class, the less likely we are to say that the statement refers
to every single person within the class
• How would words reasonably be understood?
Communication
