Defamation

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What is defamation?
The publication of a statement which tends to lower a person in they estimation of right thinking members of society, it protects reputation alone, not feelings of the parties, and is controversial when looked at which the right to freedom and expres
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What does it balance?
Right to freedom of expression and protecting one's reputation
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Two types of defamation?
Libel - statement made in permanent form, Slander - Transitory statements
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Two exceptions to slanderous statements to make them libel?
Remark about criminality, or a remark about their ability to perform a job
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Two acts
Broadcasting Act 1990, Theatres Act 1968
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Rules of Defamation
Death of either party extinguishes the claim, limitation period is 12 months, public bodies e.g. political parties cannot sue in defamation
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Three criteria for establishing a case in defamation
Statement complained of was defamatory, statement referred to the claimant, and the statement was publsihed
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Case: Definition of defamatory statements
Sim v Stretch
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Case: Must differentiate between mere abuse and defamatory statements
Berkoff v Burchill - "hideously ugly" only not abuse because of his job
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Case: Different interpretations of right thinking members of society
Byrne v Deane
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CAse: Calling someone a liar is defamatory
Donovan v The Face
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Case: The defendant can negate defamation
Charleston - put it in first sentence
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Meaning of innuendo
IF an allegation isn't explicit, readers haver to read between the lines to find its defamatory meaning, its an implied attack on a persons reputation
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Case for Innuendo
Tolley v JS Fry and Sons - Golfer - those who knew him would know and think less of him
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Case: Two stage test of serious harm requirement
Thornton, lowers the estimation of the claimant in the eye of the right thinking members of society, and caused or is likely to cause serious harm
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Case Serious harm for companies must show financial loss
Cooke v MGN, Brett Wilson LLP, - pointed to a client who they lost - proved serious harm
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Case: Must show who it is aimed any/not aimed at
Newstead v London Express - two with same name, not enough to differentiate, e.g. exact addresses
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Case: Picture
OShea - no intention, and so not defamatory, no need to impose liability - not a social need for it
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Case: If thing refers to a group, the group has to be sufficiently small that it refers to every member, or must target singular members
Knuppfer
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Case: If the group is small enough, we can assume the statement is about all the members
Riches
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What does publication require?
Communication to anyone but the claimant or the defendants spouse, the words must be intelligible
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Case: Reasonable foreseeability of someone else seeing the statement
Theaker v Richardson - husband opened letter - yes, Huth v Huth, butler opened letter - no
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Case: Every fresh publication of a statement creates a fresh cause of action
Duke of Brunswick v Harmer
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DA 2013, s. 8
Single publication rule, putting something online does not create a fresh cause of action, unless second publication is "materially different", second defendants are not protected
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Defences: Truth: DA 2013, s. 2
Statement must be untrue, defendant has to show that is is substantially true, allows minor inaccuracies
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If multiple imputations?
Need to prove the more serious one
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Honest Opinion criteria
Need to indicate the basis of the opinion, why you formed it, and what facts have helped you male that opinion, needs to be the opinion a reasonable person would form or anything asserted to be fact
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Absolute privilege - who has it?
MPs, Officers of the state over their duty, statements made by servants of EU, statements made in judicial proceedings, reports of judicial proceedings
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Qualified privilege
Has to be made without Maile, and can be overseas parliaments
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Peer reviewed statement in a scientific or academic journal
If it is in a scientific or academic journal, and has been peer reviewed, the defence will work
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Case?
British chiropractic Association v Singh
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Publication on a matter of public interest
As long as it was made in the public interest, and you contacted the person it was about to allow them to give their opinion, it works
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Case for establishment?
Reynolds
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Case: Neutral Reportage
Flood - Reporting on dispute between parties, don't have to find truthfullness
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Offer of amends
Make an apology for the statement, correct it, and offer compensation for harm caused, must be made before other defences put forward
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Case: If it is consented to, FI is not effective
Nail - less damages because the offer was made
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Innocent dissemination
Anyone who assisted in the publication of the statement can be sued
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To prove you were innocent
Did not know you were contributing to the publication of a defamatory statement, you are not author, editor or publisher, and you took reasonable care
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Case
Vizetelly
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Operators of websites: Not liable unless:
Not possible for claimant to identify who posted it, claimant gave operator a notice of complaint, operator did not respond to complaint
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Whoever was not the editor/author
Court does not have jurisdiction to bring action against a non author editor or publisher, unless it was not reasonably practicable to bring an action against one of them
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Case: Meaning of reasonably practicable
Norwich pharmacal co
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Other cards in this set

Card 2

Front

What does it balance?

Back

Right to freedom of expression and protecting one's reputation

Card 3

Front

Two types of defamation?

Back

Preview of the front of card 3

Card 4

Front

Two exceptions to slanderous statements to make them libel?

Back

Preview of the front of card 4

Card 5

Front

Two acts

Back

Preview of the front of card 5
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