W8 – DEFAMATION
Readings
* McBride and Bagshaw, pp 497-549
Newstead v London Express Newspaper Ltd [1940] 1 KB 377 (CA)
Lewis v Daily Telegraph Ltd [1964] AC 234 (HL)
* Reynolds v Times Newspapers [2001] 2 AC 127 (HL)
Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273
Joseph v Spiller [2010] UKSC 53, [2011] 1 AC 852
* Lachaux v Independent Print Ltd [2019] UKSC 27
DEFAMATION ACT 1996, ss 1, 2, 3, 4, 13, 14, 15 and Schedule I, Part 1
DEFAMATION ACT 2013, ss 1, 2, 3, 4, 5, 6, 13, 15
HUMAN RIGHTS ACT 1998, Art 10 in Schedule 1 (Freedom of Expression)
Optional further reading: Mullis and Scott, ‘Tilting at Windmills: The Defamation Act 2013’
(2013) 77 MLR 87
Questions
1. What does it mean to say that a statement is defamatory?
A statement which is harmful to one’s reputation.
Sim v Stretch: Degrades the claimant in the eyes of right-thinking members of
society.
S1 Defamation Act 2013: Defamation must seriously harm your reputation and
have a negative effect on it as a result. It cannot just be a mere rude act or
statement, such as jumping the queue.
Defamation can actually extend beyond harm to reputation. It can also relate to
negative effects on the way the claimant is seen or treated post-defamation. This
includes allegations of illness, exposing C to ridicule as a result.
Berkoff v Burchill: Burchill calls Berkoff hideously ugly. This is mere insult/hurtful
language so normally is not defamatory but the CofA held that because Berkoff is
an actor, his facial appearance is linked to his reputation as an actor, so the
appeal was upheld, since his fans may think less of him because of Burchill.
Establishing whether or not a statement is defamatory relates to knowing what
the statement means. This is because words may or may not mean, or mean
ONLY, what they literally convey. Two implications:
o NATURAL: C is being investigated for a particular crime, implying C acted
in a suspicious manner (Lewis v Daily Telegraph)
o CONTEXTUAL: C had a romantic dinner with X for example. The context
here may be that C is actually not married to X but someone else. There
must be communication to at least one other person who had this
information.
, 2. What does it mean to say that the defamatory statement ‘refers to’ the claimant? Do
the following defamatory statements refer to you?:
a. All law students are lazy.
It does refer to me because I am a law student too.
b. All LSE law students are lazy.
Yes because ALL law students including me are lazy.
c. All first-year LSE law students are lazy.
Yes because I am a first-year LSE law student and have been referred to
with the addition of being called lazy.
d. All members of this class group are lazy.
Yes because I am a member of the class group.
However, the bigger the class, the less likely we are to say that the statement refers to
every single person within the class.
D must refer to C without naming them. For example, Boris can refer to Corbyn by
saying ‘leader of the opposition’. It does not matter what D intended, but how
reasonable people would understand this statement.
Newstead v LEN:
o FACTS: Newspaper story about Harold Newstead, who was a 30 YO man from
Camberwell on trial for bigamy. A different Harold Newstead (around 30 YO
too) and ALSO from Camberwell, sued.
o ISSUE: The newspaper said that they did not intend the different Harold but
the actual one who was on trial for bigamy. The plaintiff Harold argued that
the newspaper was under a duty to take reasonable care to give a precise
and detailed description of the correct Harold to ensure they did not refer to
anyone else, to which they breached this duty.
o HELD: Liability for libel doesn’t depend on the intention of the defamer, but
on the fact of the defamation. A reasonable person, especially a newspaper
publisher, MUST BE AWARE OF THE POSSIBILITY of individuals with the SAME
NAME and must assume that the words published will be read by a
reasonable person with reasonable care. HOWEVER, the Court held that the
evidence justified a finding by the jury that a reasonable person may have
understood the words complained of or refer to the plaintiff. The fact that
the words were true of another person was not a valid defence against a
claim of libel.
3. What is the public interest defence under s 4 of the Defamation Act 2013? What is its
relationship to the common law Reynolds defence which it replaces? What is the
relationship between this defence and the defence of privilege?
Public interest defence:
S4 = Statement was on a matter of public interest, and D reasonably believed that
the publishing of this statement was in the public interest.
For the 2nd condition, we must consider what other options D had (e.g. not
publishing at all or waiting for further evidence and/or info).
Readings
* McBride and Bagshaw, pp 497-549
Newstead v London Express Newspaper Ltd [1940] 1 KB 377 (CA)
Lewis v Daily Telegraph Ltd [1964] AC 234 (HL)
* Reynolds v Times Newspapers [2001] 2 AC 127 (HL)
Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273
Joseph v Spiller [2010] UKSC 53, [2011] 1 AC 852
* Lachaux v Independent Print Ltd [2019] UKSC 27
DEFAMATION ACT 1996, ss 1, 2, 3, 4, 13, 14, 15 and Schedule I, Part 1
DEFAMATION ACT 2013, ss 1, 2, 3, 4, 5, 6, 13, 15
HUMAN RIGHTS ACT 1998, Art 10 in Schedule 1 (Freedom of Expression)
Optional further reading: Mullis and Scott, ‘Tilting at Windmills: The Defamation Act 2013’
(2013) 77 MLR 87
Questions
1. What does it mean to say that a statement is defamatory?
A statement which is harmful to one’s reputation.
Sim v Stretch: Degrades the claimant in the eyes of right-thinking members of
society.
S1 Defamation Act 2013: Defamation must seriously harm your reputation and
have a negative effect on it as a result. It cannot just be a mere rude act or
statement, such as jumping the queue.
Defamation can actually extend beyond harm to reputation. It can also relate to
negative effects on the way the claimant is seen or treated post-defamation. This
includes allegations of illness, exposing C to ridicule as a result.
Berkoff v Burchill: Burchill calls Berkoff hideously ugly. This is mere insult/hurtful
language so normally is not defamatory but the CofA held that because Berkoff is
an actor, his facial appearance is linked to his reputation as an actor, so the
appeal was upheld, since his fans may think less of him because of Burchill.
Establishing whether or not a statement is defamatory relates to knowing what
the statement means. This is because words may or may not mean, or mean
ONLY, what they literally convey. Two implications:
o NATURAL: C is being investigated for a particular crime, implying C acted
in a suspicious manner (Lewis v Daily Telegraph)
o CONTEXTUAL: C had a romantic dinner with X for example. The context
here may be that C is actually not married to X but someone else. There
must be communication to at least one other person who had this
information.
, 2. What does it mean to say that the defamatory statement ‘refers to’ the claimant? Do
the following defamatory statements refer to you?:
a. All law students are lazy.
It does refer to me because I am a law student too.
b. All LSE law students are lazy.
Yes because ALL law students including me are lazy.
c. All first-year LSE law students are lazy.
Yes because I am a first-year LSE law student and have been referred to
with the addition of being called lazy.
d. All members of this class group are lazy.
Yes because I am a member of the class group.
However, the bigger the class, the less likely we are to say that the statement refers to
every single person within the class.
D must refer to C without naming them. For example, Boris can refer to Corbyn by
saying ‘leader of the opposition’. It does not matter what D intended, but how
reasonable people would understand this statement.
Newstead v LEN:
o FACTS: Newspaper story about Harold Newstead, who was a 30 YO man from
Camberwell on trial for bigamy. A different Harold Newstead (around 30 YO
too) and ALSO from Camberwell, sued.
o ISSUE: The newspaper said that they did not intend the different Harold but
the actual one who was on trial for bigamy. The plaintiff Harold argued that
the newspaper was under a duty to take reasonable care to give a precise
and detailed description of the correct Harold to ensure they did not refer to
anyone else, to which they breached this duty.
o HELD: Liability for libel doesn’t depend on the intention of the defamer, but
on the fact of the defamation. A reasonable person, especially a newspaper
publisher, MUST BE AWARE OF THE POSSIBILITY of individuals with the SAME
NAME and must assume that the words published will be read by a
reasonable person with reasonable care. HOWEVER, the Court held that the
evidence justified a finding by the jury that a reasonable person may have
understood the words complained of or refer to the plaintiff. The fact that
the words were true of another person was not a valid defence against a
claim of libel.
3. What is the public interest defence under s 4 of the Defamation Act 2013? What is its
relationship to the common law Reynolds defence which it replaces? What is the
relationship between this defence and the defence of privilege?
Public interest defence:
S4 = Statement was on a matter of public interest, and D reasonably believed that
the publishing of this statement was in the public interest.
For the 2nd condition, we must consider what other options D had (e.g. not
publishing at all or waiting for further evidence and/or info).
