Lecture 17 – Defamation (Part I) What is Defamation?
Introduction
It protects reputation.
Balance between freedom of speech and reputation? Clearer law?
Who Can Sue?
(a) Individuals – living not dead.
(b) Politicians, not political parties or government
Derbyshire CC v Times Newspapers [1993] A.C. 534
Facts: Derbyshire CC sought to sue The Times over articles questioning the propriety of its financial dealings.
Held: “It is of the highest public importance that a democratically elected governmental body, or indeed any
governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation
must inevitably have an inhibiting effect on freedom of speech.”
Goldsmith v Bhoyrul [1998] QB 459
Political parties could not sue, applied Derbyshire.
(c) Companies – and other legal persons.
South Hetton Coal Co v North-Eastern News Association [1894] 1 Q.B. 133
Facts: Co. Durham newspaper published an article saying that houses rented out by the
claimant were in an insanitary condition.
Held: The law of defamation was the same for all claimants and thus a company could sue if it would lead
people to think badly of their business.
McDonald’s Corp. v Steel and Morris (1997)
Facts:
313 days long. McDonald’s sued two campaigners for a fact sheet they written describing McDonald’s
practices.
High Court: The campaigners lost on some points, ordered to pay £60,000 damages.
Morris & Steel v UK [2005] EMLR 15
Companies have more money to bring an action which may reduce freedom of speech against them.
Chilling Effect on freedom of speech?
Jameel v Wall Street Journal Europe [2006] UKHL 44
Worries about companies being able to sue.
Lords acknowledge possible chilling effect.
Held damages should be nominal if no loss.
Held chilling effect of mere potential liability insufficient to infringe Art 10.
, Parliament took a different view:
S.1(2) DA 2013
“harm to the reputation of body that trades for profit is not “serious harm” unless it has caused or is likely to cause the
body serious financial loss.”
This protects freedom of speech as law is now stricter when it comes to allowing companies to sue in defamation.
BUT is this too easy to prove? Only need to show it was likely.
A New Law? Defamation Act 2013
Aims:
Rebalancing Reputation and Freedom of Speech.
Codify and clarify the common law.
Changed Utterly?
Balance of reputation and freedom of speech?
Increased protection for freedom of speech?
Clarity to the law?
Four Elements of a claim for Defamation
1) Is the statement defamatory?
2) Does it refer to the claimant?
3) Has it been published?
4) Do any of the Defences apply?
1. Is the Statement Defamatory?
General Definition of Defamatory Statement:
Sim v Stretch [1936] 2 All ER 1237
Would the words or statement “lower the claimant in the estimation of right-thinking members of society generally,”
causing them to be shunned or avoided?
The Act has added to this common law definition:
s.1(1) DA 2013
“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation
of the claimant.”
(a) Who are the Right Thinking People?
Neither easily scandalised nor entirely impervious to being influenced in their opinions of a person.
Lewis v Daily Telegraph [1964] A.C. 234
Published that the Lewis’ company was being investigated by the fraud squad.
The normal person would not infer guilt just because there was an investigation so the statement was not
defamatory.
Introduction
It protects reputation.
Balance between freedom of speech and reputation? Clearer law?
Who Can Sue?
(a) Individuals – living not dead.
(b) Politicians, not political parties or government
Derbyshire CC v Times Newspapers [1993] A.C. 534
Facts: Derbyshire CC sought to sue The Times over articles questioning the propriety of its financial dealings.
Held: “It is of the highest public importance that a democratically elected governmental body, or indeed any
governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation
must inevitably have an inhibiting effect on freedom of speech.”
Goldsmith v Bhoyrul [1998] QB 459
Political parties could not sue, applied Derbyshire.
(c) Companies – and other legal persons.
South Hetton Coal Co v North-Eastern News Association [1894] 1 Q.B. 133
Facts: Co. Durham newspaper published an article saying that houses rented out by the
claimant were in an insanitary condition.
Held: The law of defamation was the same for all claimants and thus a company could sue if it would lead
people to think badly of their business.
McDonald’s Corp. v Steel and Morris (1997)
Facts:
313 days long. McDonald’s sued two campaigners for a fact sheet they written describing McDonald’s
practices.
High Court: The campaigners lost on some points, ordered to pay £60,000 damages.
Morris & Steel v UK [2005] EMLR 15
Companies have more money to bring an action which may reduce freedom of speech against them.
Chilling Effect on freedom of speech?
Jameel v Wall Street Journal Europe [2006] UKHL 44
Worries about companies being able to sue.
Lords acknowledge possible chilling effect.
Held damages should be nominal if no loss.
Held chilling effect of mere potential liability insufficient to infringe Art 10.
, Parliament took a different view:
S.1(2) DA 2013
“harm to the reputation of body that trades for profit is not “serious harm” unless it has caused or is likely to cause the
body serious financial loss.”
This protects freedom of speech as law is now stricter when it comes to allowing companies to sue in defamation.
BUT is this too easy to prove? Only need to show it was likely.
A New Law? Defamation Act 2013
Aims:
Rebalancing Reputation and Freedom of Speech.
Codify and clarify the common law.
Changed Utterly?
Balance of reputation and freedom of speech?
Increased protection for freedom of speech?
Clarity to the law?
Four Elements of a claim for Defamation
1) Is the statement defamatory?
2) Does it refer to the claimant?
3) Has it been published?
4) Do any of the Defences apply?
1. Is the Statement Defamatory?
General Definition of Defamatory Statement:
Sim v Stretch [1936] 2 All ER 1237
Would the words or statement “lower the claimant in the estimation of right-thinking members of society generally,”
causing them to be shunned or avoided?
The Act has added to this common law definition:
s.1(1) DA 2013
“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation
of the claimant.”
(a) Who are the Right Thinking People?
Neither easily scandalised nor entirely impervious to being influenced in their opinions of a person.
Lewis v Daily Telegraph [1964] A.C. 234
Published that the Lewis’ company was being investigated by the fraud squad.
The normal person would not infer guilt just because there was an investigation so the statement was not
defamatory.
