Tort Law - Defamation

The aim of the Tort of Defamation is to protect your reputation.

However, a balance must be struck between "two fundamental rights: freedom of expression and protection of reputation." (Lord Nicholls of Birkenhead - Reynolds v Times Newspapers)

Elements of Defamation: A Defamatory Statement, that refers to the claimant which has been published.

A defamatory statement in permanent form.

This is usually in writing but can be extended to include "a statue, a caricature, an effigy, chalk marks on a wall, signs or pictures" (Manson v Tussauds) 

Libel has traditionally been actionable per se (meaning there was no requirement to show damage)

However, section 1(2) of the Defamation Act 2013 states that a body that 'trades for profit' must now suffer 'serious harm' to their reputation in the form of financial loss.

A body that does not 'trade for profit' can still sue for libel on an actionable per se basis as long as they suffer serious harm to their reputation (section 1(1) of the 2013 Act)

Statements that are temporary

This is usually speech but also mimicry, gestures and sign language

Slander has always required that a claimant show special damage (which means financial loss)

There are two exceptions where, for a body that does not 'trade for profit', slander will be actionable per se:

Imputation of a criminal offence punishable by imprisonment (Grey v Jones - "you are a convicted person I will not have you here. You have a conviction" (There was no conviction))

Imputation reflecting upon a person in his office, profession, calling, trade or business
(Section 2 of the Defamation Act 1952) (McManus v Beckham - the selling of sports memorabilia - "that's not my David's signature")

According to section 15 of the Defamation Act 2013 - a 'statement' means 'words, pictures, visual images, gestures or any other method of signifying meaning'

Sim v Stretch:

"Would the words (or statement) tend to lower the claimant in the estimation of right-thinking members of society?"

Section 1 of the Defamation Act 2013 introduces a statutory requirement of 'serious harm' to reputation for all Defamation cases

(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.

A reasonable people must know that the claimant was being referred to. 

In order to be published the statement must have been communicated to at least one other living human being, who is not the claimant.

Truth is a complete defence

Section 2 of the Defamation Act 2013:

(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. 

(3) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more direct imputations

(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail it, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.

Substantial Truth:

Defendant must prove the 'sting of the charge' - Edwards v Bell (and affirmed in Chase v News Group Newspaper)

Section 3 of the Defamation Act 2013:

1. It must be a statement of opinion.

2. The statement must contain the basis of the opinion (Spiller v Joseph)

3. An honest opinion could have held the opinion on the basis of any FACT which existed at the time the statement complained of was published or anything asserted to be a fact in a privileged statement published before the statement complained of. (This is an objective test).

This defence is defeated if the claimant shows that the defendant did not hold the opinion (i.e. Malice) - Section 3(5) of the Defamation Act 2013

Reynolds v Times Newspaper - "the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it..." - Lord Nicholls

This was, at common law, known as the Qualified Privilege (Responsible Journalism) defence or the Reynolds defence, but it has now been placed on a statutory basis.

Section 4(1) - It is a defence to an action for defamation for the defendant to show that - 

(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.'

This defence is determined on the circumstances of each case.

Reynolds Defence - although abolished it is still relevant. (Note criteria: The level of seriousness of the allegation, the source, verification attempt, whether any attempt to obtain comment from the claimant was made and the tone of the published material etc.)

Editorial Judgement - The court must make allowance for editorial judgement when determining whether the statement was in the public interest, where appropriate.

An award of damages is the primary remedy in defamation.

Unlike in personal injury, damages in deformation as well as being compensatory in respect to hurt feelings and distress, and the material loss caused by the defamatory statement also incorporate the additional purposes of vindication (repairing and re-establishing the claimant's reputation), and (to a lesser extent) punishment and deterrence.

Damages used to be awarded by a jury but this led to inconsistency and therefore, jury trials were abolished by section 11 of the Defamation Act 2013, and now damages are awarded by the judge.

An award of damages can be accompanied by a final injunction prohibiting further publication of the defamatory material.