Chapter 19
Defamation
19.1 The basics:
o Defamation is a social tort- protect relationships.
o Defaming someone is easy to do and we do it all the times.
o Important that people be allowed to say negative things about other people.
o There are defences
o Art 10 HRA
o Main charges laid against the law of defamation:
1. Ease of suit- argued that it is just too easy in this jurisdiction to threaten someone who is
saying something critical about you that you will sue them for defamation. Would make
people feel the need to censor themselves.
2. Abuse of the right to sue- claims for defamation are not always brought with the
intention of preserving the C’s status in the eyes of other people. Sometimes, the C
hasn’t suffered any serious harm as a result of the D’s words but still brings a claim with
the twin object of punishing the D for daring to say something negative about the C and
warning others not to take similar liberties. Libel- easy for C’s to bring a claim.
Sometimes, the C isn’t a human; it is a company or some other organisation enjoying
legal personality. The law of defamation allows legal persons to protect their business
reputation as they may suffer financial loss. Evidence that the law of defamation is being
abused by companies (esp. drug companies) and other organisations to suppress
criticisms of their activities. British Chiropractic Association v Singh (2011); where an
article in the Guardian newspaper criticised the C association for associating itself with
claims that the chiropractor could cure a range of childhood illnesses. C chose to sue the
writer of the article, not the Guardian, for libel. CA commented on the chilling effect.
The Singh case was dismissed (honest opinion), the CA felt itself unable to dismiss the
claim simply on the basis that it amounted to an abuse of the right to sue.
3. Forum shopping/libel tourism- courts will strike down claims for defamation as an abuse
of process if they don’t think that they have been brought with the serious intention of
vindicating the C’s reputation in England. To satisfy this requirement, C will have to show
that there has been a substantial publication of material defaming C in England. The
internet has made this requirement v easy to satisfy. Now, a C can come to England to
claim defamation (and this jurisdiction is particularly lenient on the topic); doesn’t have
to look for a remedy elsewhere. New York Times v Sullivan 1964- US SC- the
constitutional guarantees for freedom of expression contained in the First Amendment
to the US Constitution required that a public figure not be allowed to sue a D for
defamation unless the D mad his statement maliciously. England does not require such a
high threshold; C able to sue a D in England for defamation even if the D honestly
believed what he was saying about them was true. ‘Forum shop’ to bring claim to the
UK. If someone is allowed to forum shop, it will not only have a negative impact on
freedom of speech in England; it will also impact on freedom of speech in the US. Bin
Mahfouz v Ehrenfeld [2005] - first alerted law makers on both sides of the Atlantic to the
dangers posed by the law of defamation for freedom of speech in the US. Brought claim
to the UK.
o Controls on the ability of defamation Cs to engage in forum shopping:
Defamation
19.1 The basics:
o Defamation is a social tort- protect relationships.
o Defaming someone is easy to do and we do it all the times.
o Important that people be allowed to say negative things about other people.
o There are defences
o Art 10 HRA
o Main charges laid against the law of defamation:
1. Ease of suit- argued that it is just too easy in this jurisdiction to threaten someone who is
saying something critical about you that you will sue them for defamation. Would make
people feel the need to censor themselves.
2. Abuse of the right to sue- claims for defamation are not always brought with the
intention of preserving the C’s status in the eyes of other people. Sometimes, the C
hasn’t suffered any serious harm as a result of the D’s words but still brings a claim with
the twin object of punishing the D for daring to say something negative about the C and
warning others not to take similar liberties. Libel- easy for C’s to bring a claim.
Sometimes, the C isn’t a human; it is a company or some other organisation enjoying
legal personality. The law of defamation allows legal persons to protect their business
reputation as they may suffer financial loss. Evidence that the law of defamation is being
abused by companies (esp. drug companies) and other organisations to suppress
criticisms of their activities. British Chiropractic Association v Singh (2011); where an
article in the Guardian newspaper criticised the C association for associating itself with
claims that the chiropractor could cure a range of childhood illnesses. C chose to sue the
writer of the article, not the Guardian, for libel. CA commented on the chilling effect.
The Singh case was dismissed (honest opinion), the CA felt itself unable to dismiss the
claim simply on the basis that it amounted to an abuse of the right to sue.
3. Forum shopping/libel tourism- courts will strike down claims for defamation as an abuse
of process if they don’t think that they have been brought with the serious intention of
vindicating the C’s reputation in England. To satisfy this requirement, C will have to show
that there has been a substantial publication of material defaming C in England. The
internet has made this requirement v easy to satisfy. Now, a C can come to England to
claim defamation (and this jurisdiction is particularly lenient on the topic); doesn’t have
to look for a remedy elsewhere. New York Times v Sullivan 1964- US SC- the
constitutional guarantees for freedom of expression contained in the First Amendment
to the US Constitution required that a public figure not be allowed to sue a D for
defamation unless the D mad his statement maliciously. England does not require such a
high threshold; C able to sue a D in England for defamation even if the D honestly
believed what he was saying about them was true. ‘Forum shop’ to bring claim to the
UK. If someone is allowed to forum shop, it will not only have a negative impact on
freedom of speech in England; it will also impact on freedom of speech in the US. Bin
Mahfouz v Ehrenfeld [2005] - first alerted law makers on both sides of the Atlantic to the
dangers posed by the law of defamation for freedom of speech in the US. Brought claim
to the UK.
o Controls on the ability of defamation Cs to engage in forum shopping:
