Defamation
Interference with reputation
Defamation protects a person’s reputation. The law of defamation enables an individual (or,
more controversially a company) to prevent the publication of, or recover damages for, public
statements which make, or are likely to make, people think less of them.
In the tort of defamation an individual’s rights are said to be pitted against freedom of
expression (considered to be so important that it is protected under the European Convention
of Human Rights and the HRA 1998). At its heart lies the question as to when an individual’s
interest in what people think of them should trump or silence the freedom of others to be
able to say what they know, or what they think they know, about them.
Establishing a claim in defamation
Whilst the Defamation Act 2013 changed the substance of the law, it has not changed the structure
of defamation claims. In order to establish a claim in the tort of defamation four questions need to
be addressed:
1. Is the statement defamatory?
2. Does the statement refer to the claimant?
3. Has the statement been published or communicated to a third party?
4. Are there any applicable defences?
Who can sue?
A defamation claim can be brought by any living human being. An action for defamation will not
survive death.
More controversially, a company because it has a legal identity. (BUT only if the defamation has
damaged trading)
Jameel V Wall Street Journal Europe
Who cannot sue?
A trade union (they have no legal identity)
A political party
A public or governmental body
Derbyshire County Council V Times Newspaper Ltd (Local Authorities must be open to
criticism as political and administrative bodies, and so cannot be allowed to sue in
defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech
was the underlying value which supported the decision to lay down the specific rule that a
local authority could not sue for libel).
, Libel and Slander
The tort of defamation comes in two forms, libel and slander.
The distinction is drawn from common law
Libel (a defamatory statement in permanent form, typically writing, but also including, for
example ‘’a statue, a caricature, an effigy, chalk marks on a wall, signs or pictures.’’ – Monson V
Tussauds Ltd
Slander (statements which are temporary or transitory, usually speech but also mimicry,
gestures and sign language).
Distinction between the two:
-Libel is actionable Per Se (no need to prove that they have suffered any damage)
-Slander, you must prove that you have suffered ‘special damage’ (i.e. actual damage of financial loss
or physical loss or the capability of said loss to be calculated in monetary value)
1. is the statement defamatory?
A statement will be considered defamatory if it is likely to make others think less of the person
referred to.
The words of statement must tend to ‘’lower the claimant in the estimation of right-thinking
members of society in general’’ causing them to be shunned or avoided -Per Lord Atkin in
Sim V Stretch
Lukas V Young (an accusation that someone was a witch – wasn’t defamatory as the ‘right-
thinking’ person doesn’t believe in witches).
Lewis V Daily Telegraph (who are ‘right-thinking members of society’? describe by Lord Reid
as someone who is fair-minded, neither unduly suspicious nor unduly naive, nor avid for
scandal, nor bound to select one defamatory meaning when no defamatory meanings are
available).
Bryne V Deane (This case considered the issue of defamation and whether or not a notice on
a wall in a club was defamatory when it contained innuendo about a club member who
notified the police of a possible crime. Furthermore, if the non-removal of the notice by the
directors of the club amounted to publication of the notice).
Charleston v News Group Newspapers Ltd (Two actors from an Australian soap opera sued a
newspaper for defamation arising out of the publication of digitally manipulated images. The
newspaper had published an article comprising photographs showing the plaintiff’s faces
superimposed on the near- naked bodies of models in pornographic poses. The text made it
clear that the photographs had been produced by superimposing the plaintiffs faces on the
bodies of others without the knowledge or consent of the plaintiffs and castigated the
makers of a pornographic computer game. An ordinary person would have looked at the
photos, the headline and the story and quickly realised that the claimants had nothing to do
with the game in question).
Berkoff V Burchill (is an attack on a man’s appearance an attack on his reputation that the
law of defamation can protect? ‘’hideously ugly’’)
Palmer V Boyer (barrister who knew ‘as much law as a jackanapes’ was defamatory, context
is important as it related to his job)
Interference with reputation
Defamation protects a person’s reputation. The law of defamation enables an individual (or,
more controversially a company) to prevent the publication of, or recover damages for, public
statements which make, or are likely to make, people think less of them.
In the tort of defamation an individual’s rights are said to be pitted against freedom of
expression (considered to be so important that it is protected under the European Convention
of Human Rights and the HRA 1998). At its heart lies the question as to when an individual’s
interest in what people think of them should trump or silence the freedom of others to be
able to say what they know, or what they think they know, about them.
Establishing a claim in defamation
Whilst the Defamation Act 2013 changed the substance of the law, it has not changed the structure
of defamation claims. In order to establish a claim in the tort of defamation four questions need to
be addressed:
1. Is the statement defamatory?
2. Does the statement refer to the claimant?
3. Has the statement been published or communicated to a third party?
4. Are there any applicable defences?
Who can sue?
A defamation claim can be brought by any living human being. An action for defamation will not
survive death.
More controversially, a company because it has a legal identity. (BUT only if the defamation has
damaged trading)
Jameel V Wall Street Journal Europe
Who cannot sue?
A trade union (they have no legal identity)
A political party
A public or governmental body
Derbyshire County Council V Times Newspaper Ltd (Local Authorities must be open to
criticism as political and administrative bodies, and so cannot be allowed to sue in
defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech
was the underlying value which supported the decision to lay down the specific rule that a
local authority could not sue for libel).
, Libel and Slander
The tort of defamation comes in two forms, libel and slander.
The distinction is drawn from common law
Libel (a defamatory statement in permanent form, typically writing, but also including, for
example ‘’a statue, a caricature, an effigy, chalk marks on a wall, signs or pictures.’’ – Monson V
Tussauds Ltd
Slander (statements which are temporary or transitory, usually speech but also mimicry,
gestures and sign language).
Distinction between the two:
-Libel is actionable Per Se (no need to prove that they have suffered any damage)
-Slander, you must prove that you have suffered ‘special damage’ (i.e. actual damage of financial loss
or physical loss or the capability of said loss to be calculated in monetary value)
1. is the statement defamatory?
A statement will be considered defamatory if it is likely to make others think less of the person
referred to.
The words of statement must tend to ‘’lower the claimant in the estimation of right-thinking
members of society in general’’ causing them to be shunned or avoided -Per Lord Atkin in
Sim V Stretch
Lukas V Young (an accusation that someone was a witch – wasn’t defamatory as the ‘right-
thinking’ person doesn’t believe in witches).
Lewis V Daily Telegraph (who are ‘right-thinking members of society’? describe by Lord Reid
as someone who is fair-minded, neither unduly suspicious nor unduly naive, nor avid for
scandal, nor bound to select one defamatory meaning when no defamatory meanings are
available).
Bryne V Deane (This case considered the issue of defamation and whether or not a notice on
a wall in a club was defamatory when it contained innuendo about a club member who
notified the police of a possible crime. Furthermore, if the non-removal of the notice by the
directors of the club amounted to publication of the notice).
Charleston v News Group Newspapers Ltd (Two actors from an Australian soap opera sued a
newspaper for defamation arising out of the publication of digitally manipulated images. The
newspaper had published an article comprising photographs showing the plaintiff’s faces
superimposed on the near- naked bodies of models in pornographic poses. The text made it
clear that the photographs had been produced by superimposing the plaintiffs faces on the
bodies of others without the knowledge or consent of the plaintiffs and castigated the
makers of a pornographic computer game. An ordinary person would have looked at the
photos, the headline and the story and quickly realised that the claimants had nothing to do
with the game in question).
Berkoff V Burchill (is an attack on a man’s appearance an attack on his reputation that the
law of defamation can protect? ‘’hideously ugly’’)
Palmer V Boyer (barrister who knew ‘as much law as a jackanapes’ was defamatory, context
is important as it related to his job)
