TORT LAW: DEFAMATION (PART 1: PARTIES, TYPES OF STATEMENTS & CRITERIA FOR LIABILITY)
‘Publication of an untrue and defamatory statement about the claimant, that causes serious harm to reputation’
1. Libel or Slander: 2. Claimants:
w Distinction between libel & slander firmly entrenched in law: Thorley v Lord Kerry w Any living person may sue
(1812) w Body trading for profit may sue - McDonalds Corp. v Steel & Morris
w Libels = actionable per se (x damage needed in order to sue), slander ¹ actionable (1995): McD was trading for profit – had a business reputation
per se (proof of damage needed to sue): Youssoupoff v MGM (1934) w Gov. bodies & political parties x sue - Derbyshire CC v Times Newspapers
w Test of permanence to differentiate btwn. Libel & slander – libel = more permanent, (1993): if allowed to sue, democracy & accountability will be affected
slander = more transient. OTF wax figure = libel: Monson v Tussauds (864)
w Film (audio + visual + script) = libel: Youssoupoff
w Material published on the internet = libel: Godfrey v Demon Internet (1999) 3. Defendants:
w Slanders req. proof of ‘special damage’ to justify claim because it is considered trivial, w Original author for original publication: may be sued
transient & less damaging rd
w Original author for repeats of original publication by other 3 parties may
w Special damage: losing hospitality of friends, job/ income: Davies v Solomon (1971) be sued subject to S8 D.A.2013 below
w Faulks Committee Report (1975) criticized distinction – fear of floodgates of w Website Operator/ Internet Service Provider/ Server Host/ Search Engine
litigation unfounded – distinction = “a historical accident” – should be removed (for online defamatory posts) subject to S5 D.A. 2013 below
w Jameel v Dow Jones (2005): D argued only 5 people read D’s publication — 2 didn’t w Authors x domiciled in UK or Member State of EC: x be sued: S9 D.A. 2013
know the CI. - CI. would not have suffered any damage at all – yet because libel, Cl. w Printers, distributors (not author/editor/publisher) x be sued: S10 D.A.
x have to prove damage, this breaches D’s Art. 10 ECHR right – presumption of 2013, S1 D.A. 1996 below
damage for libel = unfair. COA held presumption that libels tend to injure reputation
= irrefutable/irrebuttable & x a violation of Art. 10 ECHR. H/ver stated that in cases
where libel causes minimal harm to reputation claim should be struck out for abuse
4. Criteria for liability: (I) Defamatory meaning:
of process (OTF: claim stayed – abuse of process) (i) Ct. looks at literal/ ordinary meaning of words:
w Thornton v Telegraph Media Group (2011): Jameel cited - trivial claims must be w Lewis v Daily Telegraph (1963): D published that Cl.’s company affairs & Cl.
excluded — one must have regard to Art. 10 — a certain threshold of serious harm investigated by Fraud Squad – Cl. sued alleging that publication implied that
must be met in libel cases before it can succeed Cl. & company were dishonest & fraudulent. HOL: x such defamatory meaning
Note: (i) Distinction btwn. libel & slander continues & presumption of damage still – natural & ordinary meaning looked at – reader would simply think Cl. &
applies for libel. (ii) 2 exceptions in slander – Cl x need to prove damage if D published company were investigated, x guilty (no other meaning even by innuendo)
that Cl. (i) committed an imprisonable criminal offence OR (ii) is incompetent in his OR:
profession (ii) Meaning by innuendo:
w Cassidy v Daily Mirror N. (1929): D published that Mr. C was engaged to a
woman – Mrs. Cassidy sued for defamation – by innuendo publication
4. Criteria for liability: (II) Serious harm: (S1 (1) & (2) D.A. 2013) suggested that she was x his wife & cohabited with him outside marriage – Ct.
accepted publication was defamatory by innuendo
Before DA 2013: w Tolley v J.S. Fry & Sons Ltd (1931): statements may be defamatory by
w Thornton: a threshold for seriousness of harm is necessary in addition to proving innuendo if those who have knowledge of extrinsic facts about Cl. would infer
that stmt. was defamatory defamatory meaning – Cl. – amateur golfer appearing on chocolate
w Axel Springer v Germany (2012): The harm to reputation must reach a sufficiently advertisement – appears defamatory to those who know that Cl. is an amateur
serious level before it can justify limitation on freedom of expression golfer – shows that he accepted money against code of conduct for amateurs
to appear on advertisement
Now, Cl. has to prove that stmt. caused/ likely to cause serious harm (SH) – added req.: w Baturina v Times Newspapers (2011): D published “bunker billionairess digs
deep” – that Cl. had bought a multimillion-dollar mansion. Cl. alleged this
w S1(1): stmt. defamatory if it caused/ likely to cause serious harm
made her look like a liar & that she defrauded the tax dept. since she had
w S1(2): for bodies trading for profit, serious harm can be shown by showing serious recently declared assets & never declared such assets – she was the wife of
financial loss. the Moscow Mayor. H: stmt. was defamatory by innuendo
w Cairns v Modi (2012): D tweeted that Cl. was removed from Indian Premier League TEST:
for match-fixing in cricket matches. Ct. found that the potential for tweets to “go (iii) Did D’s statement lower Cl. in the mind of right-thinking people
viral” meant that the stmt. (abt. a known figure) could seriously harm his reputation. w Sim v Stretch (1936): Cl. argued that D sent letter about Cl. implying that Cl.
w Cooke v MGN (2014): D published article that Cl exploited his tenants –meaning of was so deprived that he had to borrow from his maid – HOL disagreed that
statement defamatory, but claim failed – x serious harm – D published apology letter contained such meaning – x defamatory meaning on facts. Test for
promptly – no damage to reputation – no evidence of harm defamatory meaning: “whether the statement tends to lower Cl. in the minds
w Theedom v Nourishing Trading (2015): D sent email abt. Cl. (former e/ee of D) to of right-thinking members of society... bad manners & discourtesy ¹ attack on
102 companies (customers of D’s company) – email alleged that Cl. had leaked one’s reputation — not actionable.” Lord Atkin
confidential company info. to rival companies, terminated for gross misconduct. Cl. w Berkoff v Burchill (1996): mere insults are x actionable – H/ver OTF calling an
argued SH is inferred from ordinary meaning of words used, nature & extent of actor “hideous/ ugly” went further than injuring feelings – affects reputation
publication & evidence from a few who communicated with him after the email. D w Byrne v Dean (1937): D published: “he who gave the game away, may he byrne
relied on evidence that Cl. was successful in new job after email. Ct. H: (i) SH req. in hell and rue the day” – Cl. argued stmt. implied that he betrayed club
must be estd. in addition to ‘defamatory meaning’, (ii) SH must be proven as a fact members – Ct. held test is applied based on std. of right-thinking society –
reasonable person x draw such conclusion abt. Cl.
on bal. of prob., (iii) SH can be proven by calling evidence/ relying on inferences; (iv)
LOOKING AT:
injury to feeling x SH; (v) SH is a threshold requirement, intended by Parliament to
(iv) Entire publication, instead of the statement in isolation:
weed out those undeserving libel claims. OTF: publication by reliable author – fairly
w Charleston v NGN (1995): D published images of Cl. superimposed on body
serious libel – substantial audience – SH inferred – D failed to rebut – proof that Cl.
of pornstars on front page. Rest of article made clear that publication did X
did x lose financially & few showed hostility did x rebut inference of SH – D x imply the same message as images. X defamatory meaning - the publication
apologise. SH estd. by Cl. had to be read as a whole, and the headlines and pictures considered in
w Munroe v Hopkins (2017): D tweeted that Cl. disrespected war memorial – D argued isolation could not prove any defamatory meaning.
x SH – tweets are transient in nature. Ct. H: tweets injured Cl.’s feelings, were abusive
Usually this ¹ SH. H/ver OTF, SH estd. – D’s tweet did materially harm Cl.’s reputation NOTE:
& caused real & substantial distress. Ct. rejected idea that tweets are less serious. Where publication is abt. Cl. being investigated for serious offences:
w Lachaux v Independent Print (2017): D published abt. Cl. in 2 major newspapers abt. w Chase v NGN (2002): If D published that Cl. was being investigated by
st
Cl.’s acrimonious divorce & domestic violence against wife & kidnapping son. 1 authorities – 3 meanings could be inferred: Chase L1: Cl. = guilty, Chase L2: RG
instance & COA H: SH harm inferred from gravity of statements – Ct. took into to suspect Cl. = guilty & Chase L3: there were grounds for investigating Cl. –
account size of D’s readership & Cl.’s existing professional & personal reputation Cl. must prove in Ct. which of the 3 meanings is can be inferred from D’s
publication
1
‘Publication of an untrue and defamatory statement about the claimant, that causes serious harm to reputation’
1. Libel or Slander: 2. Claimants:
w Distinction between libel & slander firmly entrenched in law: Thorley v Lord Kerry w Any living person may sue
(1812) w Body trading for profit may sue - McDonalds Corp. v Steel & Morris
w Libels = actionable per se (x damage needed in order to sue), slander ¹ actionable (1995): McD was trading for profit – had a business reputation
per se (proof of damage needed to sue): Youssoupoff v MGM (1934) w Gov. bodies & political parties x sue - Derbyshire CC v Times Newspapers
w Test of permanence to differentiate btwn. Libel & slander – libel = more permanent, (1993): if allowed to sue, democracy & accountability will be affected
slander = more transient. OTF wax figure = libel: Monson v Tussauds (864)
w Film (audio + visual + script) = libel: Youssoupoff
w Material published on the internet = libel: Godfrey v Demon Internet (1999) 3. Defendants:
w Slanders req. proof of ‘special damage’ to justify claim because it is considered trivial, w Original author for original publication: may be sued
transient & less damaging rd
w Original author for repeats of original publication by other 3 parties may
w Special damage: losing hospitality of friends, job/ income: Davies v Solomon (1971) be sued subject to S8 D.A.2013 below
w Faulks Committee Report (1975) criticized distinction – fear of floodgates of w Website Operator/ Internet Service Provider/ Server Host/ Search Engine
litigation unfounded – distinction = “a historical accident” – should be removed (for online defamatory posts) subject to S5 D.A. 2013 below
w Jameel v Dow Jones (2005): D argued only 5 people read D’s publication — 2 didn’t w Authors x domiciled in UK or Member State of EC: x be sued: S9 D.A. 2013
know the CI. - CI. would not have suffered any damage at all – yet because libel, Cl. w Printers, distributors (not author/editor/publisher) x be sued: S10 D.A.
x have to prove damage, this breaches D’s Art. 10 ECHR right – presumption of 2013, S1 D.A. 1996 below
damage for libel = unfair. COA held presumption that libels tend to injure reputation
= irrefutable/irrebuttable & x a violation of Art. 10 ECHR. H/ver stated that in cases
where libel causes minimal harm to reputation claim should be struck out for abuse
4. Criteria for liability: (I) Defamatory meaning:
of process (OTF: claim stayed – abuse of process) (i) Ct. looks at literal/ ordinary meaning of words:
w Thornton v Telegraph Media Group (2011): Jameel cited - trivial claims must be w Lewis v Daily Telegraph (1963): D published that Cl.’s company affairs & Cl.
excluded — one must have regard to Art. 10 — a certain threshold of serious harm investigated by Fraud Squad – Cl. sued alleging that publication implied that
must be met in libel cases before it can succeed Cl. & company were dishonest & fraudulent. HOL: x such defamatory meaning
Note: (i) Distinction btwn. libel & slander continues & presumption of damage still – natural & ordinary meaning looked at – reader would simply think Cl. &
applies for libel. (ii) 2 exceptions in slander – Cl x need to prove damage if D published company were investigated, x guilty (no other meaning even by innuendo)
that Cl. (i) committed an imprisonable criminal offence OR (ii) is incompetent in his OR:
profession (ii) Meaning by innuendo:
w Cassidy v Daily Mirror N. (1929): D published that Mr. C was engaged to a
woman – Mrs. Cassidy sued for defamation – by innuendo publication
4. Criteria for liability: (II) Serious harm: (S1 (1) & (2) D.A. 2013) suggested that she was x his wife & cohabited with him outside marriage – Ct.
accepted publication was defamatory by innuendo
Before DA 2013: w Tolley v J.S. Fry & Sons Ltd (1931): statements may be defamatory by
w Thornton: a threshold for seriousness of harm is necessary in addition to proving innuendo if those who have knowledge of extrinsic facts about Cl. would infer
that stmt. was defamatory defamatory meaning – Cl. – amateur golfer appearing on chocolate
w Axel Springer v Germany (2012): The harm to reputation must reach a sufficiently advertisement – appears defamatory to those who know that Cl. is an amateur
serious level before it can justify limitation on freedom of expression golfer – shows that he accepted money against code of conduct for amateurs
to appear on advertisement
Now, Cl. has to prove that stmt. caused/ likely to cause serious harm (SH) – added req.: w Baturina v Times Newspapers (2011): D published “bunker billionairess digs
deep” – that Cl. had bought a multimillion-dollar mansion. Cl. alleged this
w S1(1): stmt. defamatory if it caused/ likely to cause serious harm
made her look like a liar & that she defrauded the tax dept. since she had
w S1(2): for bodies trading for profit, serious harm can be shown by showing serious recently declared assets & never declared such assets – she was the wife of
financial loss. the Moscow Mayor. H: stmt. was defamatory by innuendo
w Cairns v Modi (2012): D tweeted that Cl. was removed from Indian Premier League TEST:
for match-fixing in cricket matches. Ct. found that the potential for tweets to “go (iii) Did D’s statement lower Cl. in the mind of right-thinking people
viral” meant that the stmt. (abt. a known figure) could seriously harm his reputation. w Sim v Stretch (1936): Cl. argued that D sent letter about Cl. implying that Cl.
w Cooke v MGN (2014): D published article that Cl exploited his tenants –meaning of was so deprived that he had to borrow from his maid – HOL disagreed that
statement defamatory, but claim failed – x serious harm – D published apology letter contained such meaning – x defamatory meaning on facts. Test for
promptly – no damage to reputation – no evidence of harm defamatory meaning: “whether the statement tends to lower Cl. in the minds
w Theedom v Nourishing Trading (2015): D sent email abt. Cl. (former e/ee of D) to of right-thinking members of society... bad manners & discourtesy ¹ attack on
102 companies (customers of D’s company) – email alleged that Cl. had leaked one’s reputation — not actionable.” Lord Atkin
confidential company info. to rival companies, terminated for gross misconduct. Cl. w Berkoff v Burchill (1996): mere insults are x actionable – H/ver OTF calling an
argued SH is inferred from ordinary meaning of words used, nature & extent of actor “hideous/ ugly” went further than injuring feelings – affects reputation
publication & evidence from a few who communicated with him after the email. D w Byrne v Dean (1937): D published: “he who gave the game away, may he byrne
relied on evidence that Cl. was successful in new job after email. Ct. H: (i) SH req. in hell and rue the day” – Cl. argued stmt. implied that he betrayed club
must be estd. in addition to ‘defamatory meaning’, (ii) SH must be proven as a fact members – Ct. held test is applied based on std. of right-thinking society –
reasonable person x draw such conclusion abt. Cl.
on bal. of prob., (iii) SH can be proven by calling evidence/ relying on inferences; (iv)
LOOKING AT:
injury to feeling x SH; (v) SH is a threshold requirement, intended by Parliament to
(iv) Entire publication, instead of the statement in isolation:
weed out those undeserving libel claims. OTF: publication by reliable author – fairly
w Charleston v NGN (1995): D published images of Cl. superimposed on body
serious libel – substantial audience – SH inferred – D failed to rebut – proof that Cl.
of pornstars on front page. Rest of article made clear that publication did X
did x lose financially & few showed hostility did x rebut inference of SH – D x imply the same message as images. X defamatory meaning - the publication
apologise. SH estd. by Cl. had to be read as a whole, and the headlines and pictures considered in
w Munroe v Hopkins (2017): D tweeted that Cl. disrespected war memorial – D argued isolation could not prove any defamatory meaning.
x SH – tweets are transient in nature. Ct. H: tweets injured Cl.’s feelings, were abusive
Usually this ¹ SH. H/ver OTF, SH estd. – D’s tweet did materially harm Cl.’s reputation NOTE:
& caused real & substantial distress. Ct. rejected idea that tweets are less serious. Where publication is abt. Cl. being investigated for serious offences:
w Lachaux v Independent Print (2017): D published abt. Cl. in 2 major newspapers abt. w Chase v NGN (2002): If D published that Cl. was being investigated by
st
Cl.’s acrimonious divorce & domestic violence against wife & kidnapping son. 1 authorities – 3 meanings could be inferred: Chase L1: Cl. = guilty, Chase L2: RG
instance & COA H: SH harm inferred from gravity of statements – Ct. took into to suspect Cl. = guilty & Chase L3: there were grounds for investigating Cl. –
account size of D’s readership & Cl.’s existing professional & personal reputation Cl. must prove in Ct. which of the 3 meanings is can be inferred from D’s
publication
1
