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HONEST OPINION (FAIR COMMENT)

S 3 is wider than the common law as no need for statement to be made in public interest.

MUST BE AN OPINION - Tse Wai Chun v Cheng [2001]: it musts be clear that the statement is comment, not fact (which would be protected by truth). It is context specific. In Donovan v Gibbons [2014] a pony was not suitable for children although seller said it was, so a video was posted on youtube. In Branson v Bower [2001] Branson made a bid to buy the National Lottery but an article stated that it was done for his self interest, these were opinions. In British Chiropractors Association v Singh [2010]: the claimants said they could treat children and a reporter said that there was no evidence and the treatment was bogus.

NEED TO SHOW BASIS OF OPINION -Joseph v Spiller [2010]: there is a right to make comment on art work, music, literature etc. An agent put a statement on the website saying that the band were not reliable etc. This failed because the factual basis for the statement were not made clear. In s 3(4) is whether an honest person would have held that opinion. For s 3(5) if a malicious statement is made the defence can't operate.

TRUTH (JUSTIFICATION)

S2 Defamation Act 2013 makes this as a defence even if it upsets/is vengeful/was not necessary for the public interest. The explanatory notes make it clear that common law is still relevant although replace 'truth' with 'justification'.

Lucas-Box v News Group Newspapers [1986]: article suggested she was assisting an Italian terrorist. The must show what the meaning of the statement was and then show that it was true. They can introduce more than one meaning.

Chase v News Group Newspapers [2002]: statement than an evil nurse had hastened the death of many children. D does not need to show that every word is true but that the sting is.

Lewis v Daily Telegraph Ltd [1964]: this implied that the company was acting fraudulently. You don't have to prove that someone acted fraudulently, only suspiciously.

Under s 3 if certain imputations are true then other false ones may not cause damage.

PUBLIC INTEREST (REYNOLDS PRIVILEGE)

S4(1) DA13 replaces Reynolds. Again, the explanatory notes show that the common law will show how the defence will operate.

Is it a matter of public interest?

Did the defendant reasonably believe it was in the public interest?

Reynolds v Times Newspapers Ltd [2001]: this is not exclusive to journalists. Statements were made of a prominent Northern Irish minister.

Seriousness of allegation.

Nature of information and extent that it is public cocern?

Where is info from?

How was it verified?

Does info need to be released now?

Status of information?

Was the claimant given a chance to make comment?

Did it contain the claimant's side of the story?

What is the tone of article?

What are the circumstances of the article?

NOT A TEST -GUIDELINES

Jameel v Wall Street Journal Europe [2006]: there must be a real public interest. Is disclosure warranted?

Economou v de Freitas: woman with bipolar has a brief relationship and alleges rape. CPS does not take prosecution forward. He brings private claim of malicious prosecution. She commits suicide. Father criticises the CPS and case. Claimant brings claim of defamation. Father was not a journalist so the expectations were not the same. How could the father have expressed himself without saying anything adverse?

QUALIFIED PRIVILEGE

Not abolished in the Act. Still common law.

Adam v Ward [1917]: reciprocity where you have a duty to impart and they have an interest in hearing it.

Akinleye v East Sussex Hospital NHS Trust [2008]: locum doctor went to new NHS Trust. The defendants gave comments to a new employer after being asked. There was a duty on the defendant and a duty to receive.

Trumm v Norman: A railways journal published about litigation between individual and union. The info wouldn't have gone beyond a certain group of people. NO MALICE.

Spite will defeat the defence.

ABSOLUTE PRIVILEGE

Statements in Parliament

Buchanan v Jennings [2005]: if an MP makes a statement outside of Parliament absolute privilege does not apply.

Statements in Court (or court proceedings)

This includes all staff or witnesses.

Peer Reviewed Statements

s 6 For a journal to be privileged it must: relate to the scientific/academic matter - it needs to be independently reviewed by the editor or someone with relative expertise.

OFFER OF AMENDS

Defamation Act 1996 s 2-4. You have to agree with defendant: must be correct, apology, and compensation which court can determine.

SECONDARY PUBLISHERS S10 - courts will not hear jurisdiction against people who are not the original author or editor or a statement, or a commercial publisher, unless it is not reasonably practicable. People who distribute what has already been said will not be taken to court. Already existed in 1996 Act. This protected Google in Tamiz v Google [2013]

S5 - OPERATORS OF WEBSITE

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A PARTY WHO CAN SUE

Governments can't sue - Derbyshire CC v Times Newspaper [1993]: this involves central and local government because it is related to a political party. It is important in a democratic society. Individual MPs/workers can sue. They can be sued.

Dead people - Broom v J Ritchie & Co (1904) 'I am unable to see my principle upon which anyone can have the right to raise an action to obtain damages in respect of something said of a person after that person is dead.'

Smith v Dha [2013]: if the claimant dies before the judgment the claim will be abated.

SERIOUSNESS THRESHOLD IS MET
(This is to prevent Article 8 from being interfered with. It's not about numbers but the degree of damage created to one's reputation.)

Jameel v Dow Jones [2005]: only 5 people had clicked on the link and couldn't really remember names. 'In the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary.'

S1 'Serious Harm' (this runs alongside and subsumes with Jameel). It requires serious harr. For trading bodies this includes serious financial loss.

Lachaux v Independent Print Ltd [2015]:

Factual matter on balance of probabilities.

Rather than considering just whether there is a defamatory meaning the court will consider evidence such as financial loss to decide whether something is defamatory.

Sobrinho v Impresa Publishing SA [2016]: 'serious' is interpreted in the ordinary sense with fact and balance of probabilities. Injury to feelings is not enough.

Cooke v MGN Ltd [2014]: if the defendant issues apology or tries to reverse harm there will not be serious harm.

STATEMENT WITH DEFAMATORY MEANING
Two steps:

1. What is the true meaning?

Literal meaning

False innuendo/inferred meaning -  a meaning anyone could have arrived at.

Lewis v Daily Telegraph [1964]: 'investigated by the fraud squad' conveyed that they were fraudulent. Lord Reid: the ordinary man 'can and does read between the lines in the light of his general knowledge and experience of worldly affairs.' What would the reasonable person have inferred?

Charleston v News Group Newspapers [1995]: the reasonable reader. 'How all readers would have understood it.' Characters from 'Neighbours' were used in a computer game. The headline cannot be taken on its own.

True/legal innuendo - you can only make the inference if you are privy to further information.

Lord McAlpine of West Green v Bercow [2013]: two senior Conservative politicians. Bercow tweeted 'why is Lord McAlpine trending? *innocent face*'. Only those who had read the stories would have made the inference. Requires extrinsic facts.

2. Is it defamatory?

Parmeter v Coupland (1840): statements that 'injure the reputation of another by exposing him to hatred, contempt or ridicule.'

Youssoupoff v MGM Picture Ltd (1934): if the statement means the claimant be shunned avoided without discredit.

Sim v Stretch (1936): does it lower people's opinion of you in right thinking members of society.

Berkoff v Burchill [1996]: actors could have reduced standing by being an object of ridicule. There was a dissenting judgment. Is this too restrictive?

NOT DEFAMATION

Byrne v Dean [1937]: right thinking members of society would not have a reduced opinion, only criminals so it is not defamatory.

Uppal v Endemol UK Ltd [2014]: On Big Brother there were claims for racial stereotypes. Right thinking people would think less of the wrongdoer than the victim.

Ibrahim v Swansea University [2012]: a PG student missed exams and had an incorrect letter about his mental illness. Right thinking people would not think badly of someone with mental illness.

CLAIMANT IS IDENTIFIED

Some readers will need to understand who the statement is referring to. Not usually an issue.

Powell v Boldaz [2003]: complaints of son's medical treatment was responded with with a poster in the GP's waiting room. Anyone who had seen the TV programme would know whom it referenced.

Cook v Telegraph Media Group [2011]: Claimant tried to reclaim a £5 charity donation. A third publication made reference to him. Someone who had read each publication would know whom it referred to..

Hulton v Jones [1910]: A barrister claimant used the name Artemis Jones. Someone else created the same name for a cartoon. This was sufficient for identification.

Newstead v London Express Newspapers Ltd [1940]: someone with the same name was implicated in a report on a bigamist. Risk falls on the statement maker.

PUBLICATION OF ACT

S15 - the statement must have been published as in the common law.

Ibrahim v Swansea Uni [2012]: it must go to at least one other third party.

Huth v Huth [1915]: this must be the natural and probable consequence of publication. It does not apply to someone who opens a wrongly addressed letter.

S18 'Single Publication Rule' - now you can only claim for one repeated statement or one that is substantially the same. If something is repeated later the claim is dated from the first statement.

McManus v Beckham [2002]: 'Republication Rule' - Beckham's statement is republished by the media. Is the defendant appreciated there was a significant risk of republication they could be liable for a third party.

Internet

Tamiz v Google Inc [2012]: internet search engines are not publishers.

Bunt v Tilley: to publish there must be knowing involvement.

DEFENCES

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CONFLICT BETWEEN HUMAN RIGHTS

Art 8 Right to Private and Family Life

Joseph v Spiller [2010]: freedom of speech restricts privacy.

Art 10 Right to Free Speech

It is accepted that this is impinged to a degree.

Reynolds v Times Newspapers [2001]: the right is not absolute.

DEFAMATION ACT 2013

Reversing the restriction on freedom of speech.

Applies to statements made after 1 Jan 2014.

Still some parts of 1952 and 1996 Act are relevant.

General damages for a restorative position.

It has abolished slander for suggesting a woman is unchaste or that someone has a contagious disease.

There are no longer JURIES from the 2013 Act.

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ACT IN TRANSIENT

Clynes v O'Conner [2011]: a shouting match between neighbours was held to be slanderous.

Andre v Price [2010]: on The Graham Norton Show Katie Price made comments about an affair by Peter Andre.

McManus v Beckham [2002]: Victoria Beckham slandered a shop as she said that her husband had not signed memorabilia and the shop sold fake things.

PERMANENT DAMAGE

There must be pecuniary damages:

1. Loss of job/earnings

2. Customers

3. Business/profits

EXCEPTIONS
Do not need to show special damage if state says:

Sanders v Percy [2009]: Claimant is guilty of imprisonable criminal offence.

S2 Defamation Act 1952: claimant is unfit to carry out profession/trade.

Andre v Price [2010]: Price did no disparage his pop singer career but comment was made in a professional context.

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ACT IN PERMANENT FORM

Youssoupoff v MGM Pictures Ltd (1934): a film depiction of Rasputin and Russian princesses which could be a libel to a current Russian Princess.

Monson v Tussards [1894]: man charged for murder in Scotland deemed 'not proven'. He was made into a wax statue.

Robinson v Chambers [1964]: a script read aloud.

Cooper v Turrell [2011]: a voicemail, although this is controversial. After being sacked a man left voicemails making allegations.

Smith v ADVFN plc [2008]: a post was made on an online discussion board. The internet is posing challenges for the court.

No Damage Requirement

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Unlike negligence, you need to set out each defamatory statement. Go through the defamation for each separate statement. Is it libel or slander? Then go through the defences. Identify the sting of it.

Heather v Sam
Breach of confidentiality.
Alcohol addiction
Works as a stripper - this might not necessarily have defamatory meaning because of modern context. Discuss it.
Adulterer

Heather v Journalist

Heather v Newspaper

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With essays use broad themes as an underlying narrative and then use your specific examples.

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Sexist, racist comments would probably come under crimes. It probably wouldn't come under defamation because it's not what an honest reasonable person would think.

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Every change supports freedom of speech, was the common law not doing enough? There were already a broad range of defences. You can say whatever you like if its true or an opinion?

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Why does the 52 and 66 Act still have some relevant areas? Why wasn't everything just codified into the 2013 Act. No legal aid for defamation

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Public interest - wasit
done responsibly? 10 non exhaustive factors. Not necessarily truthful comments. Perhaps there should be provisions for consequences if you publish something that turns out tobe
false. Too wide because no definition for what the public interest is. The common law involves both objective and subjective tests. The explanatory notes don't seem to offer much help. What is the purpose? Why do we need the changes in DA13? A lot of people can't afford to litigate.

The seriousness requirement prevents people from bringing claimants. More room for exercise of free speech rather than reputation. Jameel principle of substantial tort.

Technology - harder to identify who makes comments, operators have to be proved, comments and feedback reviews etc. Does it make it harder for people to counteract comments?

The act introduces a few more defences which will work against the claimant.

Getting the balance right between a8 and a10.

Changes if DA13 - how has this affected the balance?

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Scientific journals if they are reviewed independently.

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s 2 - the defendant can show that the statement is substantially true. (This codifies the law of justification).

s 3 - the defendant can show that a statement was an opinion which an honest person could have held on the facts that existed at the time. (This alters 'fair comment' as was attempted in Joseph v Spiller).

s 4 - the defendant can show that he reasonably believed that the statement, whether fact or opinion, was a matter of public interest. The court must consider all the circumstances, seemingly to consider whether the journalism was responsible. (This codified Reynolds to some degree).

Qualified privilege

Absolute privilege

Offer and Amends

Peer Reveiwed Statements

s 5 -defence for website operators if they can prove they they did not post the statement. The claimant must show that they cannot identify who did post the statement, they gave the operator notice of a complaint of the statement, and that the operator did not respond in accordance with any regulations (SIs).

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dhdK s 1 - the claimant must prove that a publication will or likely damage reputation.

You need to be a party who can sue.

Seriousness threshold. As s 1(1).

Has it been published.

Identify the claimant.

There are no valid defences.

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L K Yang, ‘Reynolds Privilege Transformed’

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L K Yang, ‘Reynolds Privilege Transformed’