Elements of Defamation


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  • Created by: debbie.t
  • Created on: 08-01-16 18:35
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  • 5 MAIN ELEMENTS OF DEFAMATION
    • 1. A Defamatory statement
      • No rules of what a defamatory statement is , but it has to lower the opinion of the person in the eyes of a reasonable society = different tests - Lord Reid CASSELL & CO LTD V BROOME (1972)
        • What is a 'right thinking' member of society ? BYRNE V DEANE (1937) (Golf club grass)
        • Subject to ridicule ? BERKOFF V BURCHILL (1996) -'hideously ugly' -emphasises words may be viewed different by different people; cheap joke or not?
        • Innuendos (where words are unclear, implied and inoffensive on the surface but defamatory with further information) TOLLEY V FRY & SONS LTD (amateur golfer)
        • Subject to shun and avoidance? (Rare test) Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) usually used for ascriptive characteristic
          • should it be abolished? seems to discredit the protection of reputation but rather the arbitrary position given to those with power from birth
    • 2. Likely to cause serious harm to the reputation
    • 3. Statement refers directly to the claimant
      • No name is needed, but a sufficient description is needed MORGAN V ODHAMS PRESS (1971)
      • NEWSTEAD V LONDON EXPRESS NEWSPAPERLTD (1940) , if there is a risk of coincidence it is the fault of the person who puts it in circulation (publish and be damned)
        • The Defamer can make an offer of amends in the form of apology or payment per S2 Defamation Act 1996
      • Accidental defamation is still defamation    E HULTON & CO V JONES (1910) (fictious article about a churchwarden, real Artemus Jones was an unmarried barrister but he had witnesses that believed the article was about him)
    • 4. Statement is published
      • E.g. Books are 'published' when read by readers, letters are published when dictated by a secretary or employee
        • HUTH V HUTH (1915) no defamation when read by the butler but it would have been if it was read by the Post Office officals
      • The statement must be communicated to at least one other person PULLMAN V WALLER HILL & CO (1891) (letter should have been marked private and confidential)
        • Spouses are not included. Would lead to disastrous results to social life WENNHAK V MORGAN (1888)
      • Isn't published if intelligible to the reader or listener
    • Statement is false
      • If the statement is true, the claim isn't valid isn't defamatory

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