Common law and in 3 statutes- Defamation Act 1952, Defamation Act 1996 and Defamation Act 2013.
Trial without jury- S11 of DA 13
Defamation tourism- claimant friendly- s9 DA 13
Tort of strict liability- culpability may be considered when it comes to defences and remedies.
It is actionable per se- do not need to prove damage. The burden of proof is on the claimant to establish the elements of the tort. If defendant wishes to use a defence, the burden shifts to the defendant to establish she had a valid defence.
Who can sue in defamation? A group cannot- Knupffer.
You cannot defame the dead- actio personalise moritur *** persona 'personal action dies with the person- Broom. If you die whilst the case is happening the court may withhold their judgement.
Corporations cant unless there has been serious provable harm- S1 DA 13.
Types of defamation.
Public authorities- they cannot bring a claim as it would restrict what could be said about government. Derbyshire CC. Political parties cannot either, but individual politicians can.
Human Rights Issues- ECHR A8- respect for private life and A10 freedom of expression clash.
Reynolds v Times- freedom of expression is not an absolute right, restrictions may be necessary in a democratic society.
Steel (McLibel)- excessive damages overturned.
Types of defamation- Slander- not permanent eg words. Should show proof of damage unless when claimant has committed a criminal offence (Simmons) or is in relation to incompetence in a professional role (S2 of Defamation Act).
Slander of Women Act 1891- has been repealed.
Libel- permanent form, actionable per se (no proof of damage needed) but S1 DA 13 'has caused or is likely to cause serious harm.' Radio and TV (s166 of Broadcasting Act 1990) Plays (S4 Theatre Act 1968) and Art (Monson v Tussauds 1894)
Element of tort
1) defamatory (adverse effect of another persons reputation)
2) reference to that other person
3) publication = defamation
Statement- must be specific, not just vulgar abuse. S15 DA 13- includes meaning of publish and statement.
Defamatory- claimant does not need to show that the statement was false for it to be defamatory. Serious harm (S1 DA 13) - 'has caused or is likely to cause serious harm to reputation of claimant.' Harm to a reputation of a body that trades for profit is not 'serious harm' unless has caused or is likely to cause the body serious financial loss.
a) reasonable reader: must be defamatory to the reasonable reader. This reader is different for broadsheets and tabloids.
b) ridicule- Berkoff v Burchill.
c) innuendo- implying something. 'False innuendo' implication of words or implying something. 'True innuendo' extra meaning in light of additional facts- McAlpine v Bercow.
Does statement refer to the claimant? Youssopoff case.
Has the statement been published? Monson v Tussauds.
Republication- Slipper v BBC. Loutchansky v Times- 'each individual publication of libel can give rise to a separate clause of action.' THIS HAS CHANGED S8 DA 13- single publication rule.
Action against someone whos not the author- Tamiz v Google
1) Truth (formally known as justification)- S2 DA 13. Lucas Box v News Group and Shah v Standard Chartered Bank.
2) Honest opinion (formally fair/honest comment)- British Chiropratic Society v Singh. a) must be a statement of opinion. b) statement complained off indicated the opinion. c) an honest person could have held the opinion on the basis of the facts that existed at the time of publication, anything asserted to be fact in a priviledged publication. d) defence is defeated if it can be shown that the defendant did not hold the opinion.
3) Publication on a matter of public interest (formally known as Reynolds Defence)- aims to promote responsible journalism. 10 criteria for this were given under Reynolds. Jameel v Wall Street Journal and Flood v Times, Covered in S4 DA13.
Priviledge- Reynolds v Times. a) absolute priviledge- statements in Parliament (BoR), statements in judicial proceedings and extensions are in S7 DA13.
b) qualified priviledge- references, police reports, peer reviewed statement in academic journals. S6 DA 13.
Operators of websites- defence for them to show they didnt post the statement. S5 DA 13.