Defamation

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  • Defamation
    • Elements
      • Defamatory Statement is made
        • Objective test - Lord Atkin in Sim
          • Balance between 2 extremes to see what the  most damaging meaning for the words is - Lord Reid in Lewis
          • Newspaper article - read the thing as a whole (Charleston)
          • Context is factored into objective test - Hyams
        • What makes it defamatory?
          • Antisocial or unsavoury behaviour - Taylor v Berre
          • Fraud/dishonesty - TVNZ v Quinn
          • Criminal behaviour - Jorgensen
        • Every republication of a new libel is a new one - Truth v Holloway
        • Innuendo
          • Types
            • False/Popular
              • Implied or secondary meaning has to be explicitly pleaded
            • True/Legal
              • Defamatory statement, meaning and facts that its based on has to be pleaded
          • Has to be reasonably capable of bearing defamatory meaning - Tolley v Fry
      • Statement is about P
        • P has to prove that publication is of and concerns P - Morgans
        • Can be hit when part of a group - Knupffer
        • Intention is immaterial if P is hit - Hulton v Jones
        • P can be identified by at least one person
        • What words are reasonably understood to mean - Hulton
      • Published by D
        • Def - making known defamatory matter to someone other than P (Pullman v HIll)
        • Indemnity clauses - no concern to P, thats between the Ds
        • Disclaimers - no concern to P
        • s 21 Defamation Act - innocent, non-negligent disseminators are protected
          • Designed to protect 'local paperboy' situation. But if person associated didnt know article was likely to contain def material so long as they weren't negligent they wont be liable - Lee
          • Not covered if they were warned of defamatory material - Jensen v Clark
    • Defences
      • Truth - s 8 Defamation Act
        • Have to prove the statement as a whole is substantially true - s 8
          • Detail - have to justify if it amounts to "sting" in itself (Templeton)
        • Not what D knows but what they can prove - Templeton
        • Conviction for offence = truth (s 48 Evidence Act - conviction is proof that this was done)
      • Honest Opinion - s 9 Defamation Act
        • If its a matter of public interest anyone has a right to express opinion on it so long as it is positively held and is based on facts
          • Requirements
            • Facts available to reader/listener on whih opinion is expressed - Templeton
            • Related to what is in the public domain
            • Recognisable as opinion - Awa (nverted commas showed it was thought to be an opinion)
            • Genuinely or honestly held (s 10(1) DA) - doesnt have to be reasonable and immaterial if its moticated by ill will (s 10(3) DA)
      • Absolute privilege
        • Applies to MP/judge who says defamatory statement. Cannot be lost
          • s 13 DA - attaches to parliamentary proceedings so just for what is said IN the house
          • s 14 DA - judicial proceedings. Courts need to get to the truth
      • Qualified privilege
        • Can be lost if occasion is improper or exceeded or if the speaker's motive was malice - s 19 DA. Question of law (Brooks)
        • Statutory - ss 16-19 DA
          • Parliamentary proceedings or j proceedings can be printed so long as they're in public interest
        • Common law
          • Classic
            • D has DUTY to speak and reader  or listener has DUTY to receive or INTEREST to it - RECIPROCITY of duty and interest (Adam v Ware)
              • Moral duty ? legal duty (Watt)
              • Has to be more than curiosity - special legal or social or moral factors that make it desirable in public interest to be made known (Brooks)
            • Purpose - protects people with duty to speak out
          • Expanded
            • Purpose - deal with political comment
            • Covers current AND aspiring politicans (Lange v Atkinson)
            • Doesnt attatch to statements about all "movers and shakers" of society like Reynolds suggests
            • 6 factors to think of - Lange
              • Statement is published generally
              • Wider public have proper interest for generally pubished statements concerning  functioning of representative and responsible government - nature of NZ democracy
              • Proper interest for statements about currently or formerly elected MPs and their qualities to do with their ability to meet public responsibilities
              • Public concern or private concern
              • Width of public concern justifies extent of pub
              • Shouldn't be misused
      • Defence based on need to publish info about P is lost if they are reckless or indifferent to truth
    • Remedies
      • Injunction
        • Purpose - prevent publication but more restrictive coz of importance of free speech  (Bonnard v Perryman)
        • Not granted if there is doubt about whether claim can be made out
        • Injunction to stop further publication is possible - Lee
        • RIghts and interests of parties protected needs to be weighed up - Fahey
          • Considerations - Fahey
            • Context and circumstances that impugne methods
            • Special public interest considerations
            • How appropes damages is for remedy
      • Damages
        • Normally  compensatory but s 28 DA allows courts to grant exemplary damages if D ats in "flagrant disregard of of Ps rights - Taylor v Beere
        • Aggravated damaegs - way or motives that statement was made in and how it caused grief or annoyance to P - Haslan J in Mihaka
        • Quantum awarded
          • England
            • Gravity of libel
            • Extent of publication
            • Whether D accepts responsiblity or apologises
            • Other awards
              • Personal injury
              • Other libel actions
          • Person - solatium to build P up again rather than compensation
          • Company - pecuniary loss suffered (have to show this a/cc to s 6DA)
      • Specific remedies under DA 1992
        • Declaration of infringement - s 24
        • Order of retraction or reply - s 25
        • Correction to be published - s 26

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