CA: ‘It is not, apparently, that she would have failed to exercise her skills in preserving her own appearance, but that others may not wish to be in her charge of their treatment.
Hayward v Thompson (1981)
The plaintiff alleged defamation by 2 articles in consecutive issues of a Sunday Newspaper. In the first, he was referred to as ‘a wealthy benefactor of the Liberal party’ but in the second, he was referred to by name. It was held that the second article was admissible to show identification and innuendo in the first.
Grappelli v Derek Block (Holding) Ltd (1981)
CA considered the unsettled question of whether innuendo could be established based on facts, which become known, only after the publication of matter, which was innocent at the time of its publication. This proposition was rejected.
G was a famous violinist. He cancelled a series of concerts arranged by his agents, as he had not authorised it. The agents told the theatre management involved that the cancellation arose because G was ill and unlikely to tour again. That was untrue. The agents then arranged a further series of concerts on dates and places close to those originally arranged. G alleged that this constituted an innuendo that he had given what he knew to be a fake reason for cancelling the originally proposed concerts. The defendants argued that the main extrinsic facts (G was not ill) was not known to the theatre management and the public when the notice of cancellation was published. It was held that there was no case in defamation to answer but the plaintiffs succeeded in an injunction for injurious falsehood.
Generally, the intention of the defendant in making the statement is wholly irrelevant, so the lack of any intention to defame is no defence if the words would be understood as defamatory by those to whom they were communicated.
- Reference to claimant (directly or indirectly)
The claimant must be identified as the person defamed. The claimant could be identified by name, description or pun.
The statement must reasonably be understood to refer to the plaintiff (judge decides) and be so understood by reasonable people (Jury decide).
The test is ‘Would a person to whom the statement was published reasonably think it referred to the plaintiff?’
Words published about A may be defamatory of B.
It is not necessary that the defendant intended to refer to the claimant. The question is not who was meant but who was hit.
E Hulton & Co v Jones [1910]
Jones brought an action against a newspaper who claimed that the Jones referred to in their article was a fictional character.
HoL found for the plaintiff even though the character was fictional, others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. Thus, despite the fact that the defendant did not intend to refer to the plaintiff, he was still held be liable.
Negative checking
In order to avoid liability under this principle, producers of film, TV and radio fiction engage in a practice known as ‘negative checking’ by which attempts are made to ensure characters cannot be coincidently confused with real life figures.
Newstead v London Express Newspapers Ltd [1940]
The defendant’s Daily had described the prisoner in trial for bigamy as Harold Newstead, thirty-year-old Camberwell man. The plaintiff coincidently fitted the description and was allowed to recover. CA applied Hulton and held that the fact that the defendant had taken all due care was irrelevant.
s2-4 Defamation Act 1996 provides defence for unintentional reference.
Cassidy v Daily Mirror Newspaper Ltd [1929]
The defendants published a photograph of Mr.Cassidy was engaged with another woman after he told him that he was getting married. The action was brought by Mrs.Cassidy who argued that the words and photographs were capable of meaning that she was only masquerading as Mrs.Cassidy. The jury found for the claimant.
CA: It was held that the words published were capable of the meaning that Cassidy was a single man; it is for the jury to say whether the people could reasonably draw the inference that Mrs.Cassidy was in fact living in moral co-habitation.
Morgan v Odhams Press Ltd [1971]
The defendants had published an article that alleged that Ms.Murray had been kidnapped by a dog doping gang. The women had in fact been staying voluntarily with M. At the trial, M produced several witnesses that said they thought the article referred to him. The jury returned a verdict in his favour.
HoL held that the trial judge had been correct to leave the matter to the jury. It was immaterial that a close reading of the article would have made it clear that it could not refer to the plaintiff, as the ordinary reader does not read a newspaper article with the care with which a lawyer would read an important legal document. Although it was a bona fide news report, the fact that it impugned M was enough to find the report defamatory.
O’Shea v MGN Ltd [2001]-Circuit Court
The claimant complained of an advertisement appearing in the Sunday Mirror on behalf of an adult internet service. The advertisement included a photograph of a glamour model that closely resembled the claimant. The claimant alleged that the advertisement meant that she was appearing on a highly pornographic website. The claimant pleaded that a number of person had identified with the photographs.
The trial judge accepted that a jury might reasonably conclude that the claimant was the person referred to in the publication. However, he granted the application on the basis that it would be contrary to Art10 of ECHR to impose a strict liability for inadvertent defamatory reference to a claimant because of identification from a photograph of somebody else of similar appearance.
The strict liability rule represented an interference with the Convention right to freedom of expression, and there was no pressing social need for such interference as would justify under Art10 (2). Thus, strict liability it not apply to look alike pictures because it would be an unjustifiable interference with the freedom of expression and disproportionate to the legitimate aim of protecting reputation.
Group Defamation
When words are spoken of a group of people, proof that the article refers to an individual member of that group is likely to be difficult.
Knupffer v London Express Newspapers [1944]
A newspaper article claimed that a political party formed by émigrés from Soviet Union, the ‘Young Russians’ consisted of traitors. The plaintiff, a Russian resident in London and head of the Young Russian party, brought an action against the defendants for damages for libel, alleging that they had been falsely and maliciously published of him by the defendants. The defendants denied that the words were reasonably capable of being understood to refer to the plaintiff. The membership of the British branch consisted of 24.
HoL: Generally, an individual cannot have an action in respect of words, which are defamatory of a body or class of persons generally.
A plaintiff may be defamed, although not specifically identified, if the class to which he belongs – and which is defamed – is so small and clearly defined that the reasonable person would take the words complained of as referring to the plaintiff.
Aspro Travel Ltd v Owners Abroad Group [1996]
CA accepted that for determining a preliminary issue, that a defamatory statement about the conduct of the affairs of a small family company could be understood as referring to each of the company directors.
(c) Statement must be published
It is a requirement that in defamation, the words complained of be published (i.e. communicated) to a person other than the person impugned.
Publication may also be by omission (not removing graffiti from the wall).
And in some circumstances may be by conduct impliedly associate himself with words which cannot be shown to have written or uttered by him (Hird v Wood (1894))- a man sitting near a placard and pointing at it with his finger).
Publication must be made to the person who understands the defamatory nature of the statement and its reference to the plaintiff.
Sadgrove v Hole (1901)
H sent S a postcard containing a statement defamatory of B, but with no mention of B’s name. As the recipient did not know that it referred to B, it was held that there had not been sufficient publication.
Wennhak v Morgan (1880)
Communication to the defendant’s spouse is no publication.
Theaker v Richardson [1962]
Communication to the claimant’s spouse can give rise to liability and in sending a latter through the post, it was a natural and probable consequence that the spouse of the recipient receives the letter and reads it.
Huth v Huth [1915]
A man sent his wife a letter, which was defamatory of his wife and children. The butler who intercepted the letter opened and read it.
CA held that the butler was not the intended recipient and it could not make the defendant liable for the publication to the butler of the contents of the envelope.
White v Stone (1939)
A defamatory matter spoken by a man to his wife was overheard by a third party. Unintentional dissemination to the third party will not be negligent if the disseminator had no reason to anticipate the third person’s receiving it.
Where a statement is not defamatory on its face, but only when considered in the light of extrinsic evidence, the hearer must know of the extrinsic facts, which make the statement defamatory. Also, if a defamatory statement is written in a foreign language the recipient must be able to understand it.
Publication is presumed, and the burden of disproof thrown on the defendant in the following cases –
- Where a postcard is posted
- Document is printed
- Telegram is dispatched
Defamation may be published by dictation but this probably only slander. If communication is privileged the dictation and other attendant circumstances, is also privileged.
Repetition of Defamatory Statements
Every repletion is a separate and distinct publication, which creates a new cause of action (Cutler v McPhail [1962] QBD).
The originator of a defamatory statement may be liable not only for its republication with his authorization, which gives rise to a second cause of action against him, but also for a third party’s foreseeable repetition of allegations contained within the original publication.
The repetition of allegations by a third party goes only to the question of damages.
Slipper v BBC [1991]
The plaintiff alleged that the TV program portrayed him as an ‘incompetent buffoon’. The defendants had shown a preview of the program to an audience of the press and television journalists prior to a broadcast to the public at large. Because of the preview, a number of stings appeared in newspapers and magazines repeating the defamatory sting of the program. The plaintiff claimed that passages from several specified newspaper reviews, which repeatedly alleged a defamatory sting of the film, should be taken into account in the assessment of general damages.
CA rejected the defendant’s argument that they could not be responsible for the repetition by 3rd parties. The test adopted was whether it was reasonably foreseeable that it would be repeated.
Ward v Weeks (1830)
The defendant is generally not liable for unintentional publication.
McManus v Beckham [2002]
Victoria, while in the claimant’s shop, claimed that an autograph purported to be her husband’s was fake to he customers. The incident was later described in a number of press reports.
The question for the CA was whether to strike out that part of the statement of claim relating to stories in the press and the loss, which the claimants alleged their business had suffered because of the stories. The court denied the striking out application.
Internet
Every time an internet user accesses defamatory material posted on an internet service provider’s newsgroup or stored in the newspaper’s internet archive, there is a fresh publication giving rise to a new cause of action against the ISP or newspaper.
Godfrey v Demon Internet Ltd [1999]
It was held that the ISP was not a publisher within the meaning of s1(2) and s1(3) of the 1996 Act. The defamatory statements posted to a ‘Usenet’ newsgroup was entitled to rely on s1(a). However, the claimant had notified the defendants that the posting was defamatory and requested that they remove it. They has refused to do so. Thus, they could not rely on the defence of s1(1) because it could not be said that they had exercised reasonable care in relation to the publication, nor that they did not know, and had no reason to believe, that what they did caused or contributed to the publication of the statement.
Louchantsky v Times Newspapers Ltd (No.2) [2001]
The defendant newspaper argued that the court should adopt the ‘single publication rule’ whereby an article stored in their archive would be published once and for all at the time of its initial posting, and would give rise to only one cause of action no matter how many times it was accessed.
CA rejected this rule on the basis that the ‘multiple publications’ rule was consistent with the freedom of expression under the convention.
Defences
- Deny that the mater is defamatory
- Deny publication
Other Defences –
(a) Justification
Defamatory statements are presumed to be false and the burden of proving their truth lies on the defendant. Truth is an absolute defence. Defendant’s motive is irrelevant.
It is a complete defence for defendants to proof that they are true. However, if the statement was false, it is no defence that the defendant took all reasonable steps to establish its veracity. It is also irrelevant whether the publication was in the public’s interest.
Sutherland v Stopes [1925]
The test is whether the allegation is ‘true in substance and fact so minor inaccuracies do not preclude the defence.
Grobbelaar v News Group Newspapers Ltd [2002] UKHL
Whether a defendant draw the sting of an allegation depends on what the jury considers the allegations gravamen or real thrust. The law is that as far as the issue of justification is concerned, the publisher of the defamatory statement must allege and prove that the statement of facts was substantially true.
Edwards v Bell (1824)
It is not necessary to prove the literal truth of a statement if the material facts proved true in substance. The defendant need only prove the facts, which justify ‘the sting of the charge’. Allegations, which do not affect the claimant’s reputation, will be disregarded.
Alexander v NE Ry Co (1865)
The defendant had published at their stations, a notice that stated that the plaintiff had been caught riding without a valid ticket and had refused to pay the fare, and subsequently been convicted by the magistrate, who sentenced him to pay a fine of $1 (plus cost) or suffer 3 weeks imprisonment. In fact, the plaintiff had been sentenced to fourteen days’ imprisonment in default of payment. The plaintiff complained of the overstatement whose effect, he argued, was to make his offence more reprehensible than the justices had deemed it. The jury found for the defendant.
Gwynn v SE Ry (1868)
The allegation was that the plaintiff was sentenced to a fine of 1s or to 3 days’ imprisonment with hard labour in default of travelling without a ticket. In fact, the allegation of hard labour was false.
The jury found for the plaintiff and awarded GBP250.
The defendant may widen the meaning of the words relied on by the plaintiff to show that they impute a more general wrongdoing than that imputed in a particular instance.
Williams v Reason [1988]
The allegation was that the plaintiff, an amateur rugby player had written a book for money and thereby compromised his status as a amateur.
In pleading justification the defendant was allowed to introduce evidence showing the plaintiff to have received ‘boot money’ from a manufacturer of sports equipment was allowed. The sting of the libel was ‘Shametuerism’ and not merely the writing of the book. The meaning of the words complained of must always be assessed in light of the publication as a whole, and the precise context and circumstances of its communication.
The defendant may only justify a meaning, which the words are reasonably capable of bearing.
Bookbinder v Tebbit [1989]
The defendant had alleged at a public meeting, that the plaintiff had squandered $50K of public money in over-printing stationary with the caption ‘Support Nuclear Free Zone’.
CA held that it was not possible to justify that allegation by pointing to other alleged instances of squandering public funds.
However, a statutory analogue to the common law’s ‘sting’ doctrine (which applies only to a single defamatory charge) has been introduced through the s.5 Defamation Act 1952.
Robson v News Group Newspapers
An allegation that the defendant had defrauded the department of Social Security was held not to materially injure the plaintiff’s reputation having regard to the effect of the true allegation that he had been convicted of $4m mortgage fraud.
Multiple Allegations
Where the defendant makes multiple allegations against the claimant, the question is whether the allegations share a common sting or convey separate and distinct imputations.
A common sting may be justified notwithstanding the defendant’s failure to prove the truth of every specific allegation in the publication.
Bonnard v Perryman [1891]
The basic rule (where the words contain two or more distinct charges) is that the defence of justification, if it is to succeed, must address each of the meanings attributed to the words by the jury.
s5 Defamation Act 1952
If words contain 2 or more distinct charges, a defence of justification will not fail merely because the truth of every charge is not proved if the words not proved to be true do not materially affect the plaintiff’s reputation, having regard to the true charges.
Polly Peck (Holdings) PLC v Trelford [1986]
If the impugned statement is characterised not as containing several, distinct imputations, but as comprising a whole, with a common sting, D may successfully plead justification by showing that the common sting is true.
Cruise v Express News Papers plc [1999]
It is no defence to a charge that ‘You called me A to say, yes, but I also called you B on the same occasion and that was true’, if there are two or more distinct defamatory statements.
Khashoggi v IPC Magazines Ltd [1986]
K was featured in an article that contained a highly coloured account of her marriage. It was capable of carrying the meaning that she was a woman of considerable sexual enthusiasm. In the article was an allegation that the last straw for her husband was an affair that she was having with a friend,
CA held that the defendants were entitled to raise a Polly Peck form of justification on the basis that the sting of the article was promiscuity and it was not in the circumstances more defamatory to allege an extra-marital affair with one person rather than another. The defendants might adduce evidence to justify that common sting even though they might not be able to prove the particular affairs complained.
The ruling in Khashoggi could have reduced the impact of Bonnard.
The ‘Rumour’ doctrine
It is no defence that the defendant was merely repeating what had been told (Stem v Piper [1997]). If one repeats a rumour one adds one’s own authority to it and implies that it is well founded, that is to say, its true (Lewis v Daily Telegraph).
Aspro Travel Ltd v Owners Abroad Group [1996]
CA accepted that there might be circumstances in which the existence of a rumour entitles a person to repeat that rumour even before he satisfies himself that the rumour is true and that in such circumstances it is possible to plead in justification that there were in truth such rumours.
The key question is how a defendant’s words are to be construed.
Cadman v Beaverbrook Newspaper Ltd [1959]
Where the defendant reports the issuing of a writ against the claimant indicating what the claimant is alleged to have done wrong, the jury must ascertain the report’s true meaning, before it can be determined whether the issuing of the writ itself amounts to justification
Stem v Piper [1997]
CA struck out a defence of justification where the defendant’s newspapers had quoted from a witness statement, which was to be relied upon in debt proceedings against the plaintiff. It was not enough that the allegations in question had indeed been taken from a witness statement, as they were still essentially hearsay. The court attached particular importance to the one-sidedness of the report and the undesirability of private court documents being disseminated to the public.
Allegations of criminal conduct
If the charge is that the claimant is guilty of criminal offence, the defendant need only point to the fact of the claimant’s conviction for the offence by way of justification. However, under the Rehabilitation Act maliciously publishing details of a ‘spent’ conviction prohibits the reliance on the defence of justification.
s13 Civil evidence Act 1968
A criminal conviction in a criminal court is conclusive proof that the convicted person committed crime.
s8 Rehabilitation of Offenders Act 1974
A spent conviction may be used for justification, fair comment or qualified privilege in the absence of malice.
(b) Fair Comment
A comment is fair comment if it is based on facts and is made in good faith on a matter of public interest. Malicious motive will crush a defence of fair comment.
The judge decides the following as matters of law:
- Whether the words used are capable of being statements of facts
- Whether the subject in law is open to comment
- Whether there is reasonable evidence to go to the jury that the comment was not fair.
Jury:
If the judge decides those in the affirmative, the issue of unfairness goes to the jury.
The defence of fair comment on a matter of public interest is a complete defence to an action for defamation. The defence is available only for comments on public interest or matters, which have been submitted for public criticism. If the subject matter of the comment does not fall into this category, the defendant must rely on truth or privilege. This defence only applies to expression of opinion, not to statements of fact.
The defendant must prove that the statement was a comment (not fact).
The distinction between fact and comment depends not just upon the content of the allegation but also on their context, and the mater of their expression.
London Artists v Littler [1969]
The defendants alleged that the plaintiffs have schemed a plot to end the highly successful play. But the truth was that some key actors had quit. The plaintiffs sued and won.
It was held that public interest is to be widely interpreted and it includes public figures, government and the arts. It was emphasised that the test was not solely whether the public was legitimately concerned in the matter in question but whether the public was legitimately interested.
Turner v MGM Pictures (1950)
It does not mean that just because a comment is unreasonable, it is incapable of being a fair comment.
Telnikoff v Matusvich [1991] UKHL
The defendant wrote a letter to the Daily Telegraph in which he complained about an article by the plaintiff. This article had been critical of the ethnic minority Russia representation in BBC Russia Service. In response, the defendant quoted from the article and said that the plaintiff advocated blood tests for new employees and dismissal for ethnically alien staff.
HoL considered the precise context in which the words in question had to be analysed.
The words contained in one publication had to be considered solely in the context of that publication; Readers of the letter would not necessarily have read the original article. They could not be looked at in the context of other publications upon which the defendant claimed to comment.
Basis of truth
Once it has been established that the words in question are comment, the court must ask if the comment has a basis of truth. The Defamation Act requires that one need not prove that every single fact is true, as long as such allegations as are proved true form a sufficient basis for his comment.
The substratum of truth underlying the comment must be clearly indicated in the publication; however, the facts need not be set out in full by the defendant.
If not all facts are true s6 Defamation act operates.
Brent Walker v Time Out [1991]
If fair comment is made on an untrue statement made on a privileged occasion, the report of the statement must be fair and accurate.
Kemsley v Foot [1952] UKHL
In an article in the Tribune, by Foot was headed ‘Lower than Kemsley’, and went on to accuse another journalist and the Evening Standard of the ‘foulest piece of journalism’. The Evening Standard had no connection with the plaintiff, a well-known newspaper owner. The plaintiff alleged that the article’s heading imputed that his name was a byword for false and foul journalism.
HoL held that the defendant could plead fair comment because there was sufficient subject matter on which the comment could be raised.
Fairness
This defence protects everyone commenting on matters of public interest.
The defendant need not go on to satisfy the further test that the comment represented his own honest opinion; this bears only upon the issue of malice.
Turner v MGM [1950]
The test of fairness is ‘would any honest man, however prejudiced he might be, or however exaggerated or obsolete his views, have written this criticism.
McQuire v Western Morning News (1903)
The test is ‘Was this an opinion however exaggerated, obstinate or prejudiced, which was honestly held by the writer?’
Thomas v Bradbury Agnew & Co. Ltd (1906)
A malicious motive will exclude a plea of fair comment.
Campbell v Spottiswoode (1863)
It was alleged statement that he wished to spread the gospel in China was a hypocritical pretence to increase the sales of his newspapers.
It was held that an attack on the plaintiff’s moral character, because it consists essentially of facts about the plaintiff’s character, cannot be fair comment. Justification is the appropriate defence.
(c)Privilege
Absolute Privilege
No action will lie for any defamatory statement, no matter how false or malicious made in:
- Parliamentary Proceedings (although MPs and peers can waive this privilege to pursue a defamation action s13 Defamation Act 1996)
- Official reports of Parliamentary proceedings
- State communication
- Judicial proceedings
- Husband and wife communication
- Official communication between one officer and another
Qualified Privilege
Privilege is described as qualified because it is conditional upon its bona fide exercise in the absence of malice: if the claimant can prove that the defendant was actuated by malice, the privilege is withdrawn.
For a statement to enjoy qualified privilege there must be:
- a legal, moral or social duty to make it on one side, and
- a corresponding interest to receive to receive it on the other
A qualified privilege is attached to any occasion ‘where the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it’. An element of reciprocity is essential (Adam v Ward (1917).
The test for the existence of such a duty is ‘Would the great mass of right minded men in the position of the defendant have considered it their duty under the circumstances to make the communication (Stuart v Bell (1891)).
A purely voluntary or gratuitous defamatory statement will not be privileged unless the relationship of the maker and the recipient was such as to create in the maker to speak on his own initiative.
The judge determines whether the occasion was privileged and whether the communication made was with reference to the privileged occasion.
The existence of a common interest is a matter of law for the judge.
Watt v Longsdon [1930]
The L, a company director, received a letter from the foreign manager of the organization. It alleged the W, who was managing director of the company abroad, was immoral and dishonest. L informed the company chairman of his suspicion that the plaintiff was misbehaving with women. He also communicated the statements, which were false, to W’s wife.
CA: The communication to the plaintiff was privileged because both the publisher and the receiver had a common interest in the affairs of the company. The publication to the plaintiff’s wife was not privileged, as the allegations were not substantiated.
Bryanston Finance Ltd v De Vires
It was held that dictation undertaken by the typist is protected by qualified privilege and so is defamatory material communicated to the Chairman of the company regarding an employee.
Osborne v Boulter [1930]
W has an interest to be protected and C is under a duty to protect that interest.
Nevill v Fine Art & General Insurance Co. (1897)
Communication by an insurance company to its policyholders about one of its agents was held to be privileged because of common interest in the finance company.
Somerville v Hawkins (1851)
A master’s warning to his fellow servants about the character of a fellow servant was held to be within qualified privilege as they had a common interest in the matter and there was a duty to protect the servants.
Perera v Peiris [1949] UKPC
The Ceylon Daily News had published extracts from a report of the bribery commission was critical of Dr.Perera’s lack of frankness in his evidence. The UKPC upheld a claim for qualified privilege. In light of the origin and contents of the report and its relevance to the affairs of Ceylon, the due administration of the affairs of Ceylon required that the report should receive widest publicity.
Where the communication goes beyond the class of those with a corresponding interest or duty to receive it, then communication to this wider class is treated as in excess of privilege and is not protected.
De Buse v McCarthy [1942]
Local councils had an interest in receiving a report from one of its committees, which stated that certain council employees were suspected of theft of petrol from the council depot. But the privilege did not extend to the publication of employee’s names and the suspicions against them in notices setting out agenda for the meetings, which were sent to and posted in public libraries. Ratepayers should not be regarded as interested in the domestic deliberations of the council before they had resulted in practical action; nor could the council have a duty or interest to tell ratepayers of their mere suspicions.
Horrocks v Lowe [1975]
The defendant made a speech accusing the plaintiff in the council in respect of property related disputes involving Bolton Corporation and a property development company of which the plaintiff was chairman. The defendant- who believed in any case that the plaintiff should not be a member of the committee in view of the danger of conflicts of interest arising in connection with the plaintiff is many property interests in the area- called for the removal of the plaintiff. The plaintiff brought an action for slander. The defendant did not seek to justify the expressions he had used but relied on the defence of qualified privilege. It was not disputed that the words were spoken of on a privileged occasion, but the plaintiff alleged that the privilege was defeated by malice on the defendant’s part.
HoL: Except for exceptional circumstances, what is required on the part of the defamer to entitle him to the protection of the privilege is the positive belief in the truth of what he published – ‘honest belief’. The law requires no more vigour in veracity.
If the desire to injure is the dominant motive, then the privilege is lost. In order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. This burden is not lightly satisfied.
Reynolds v Times Newspapers Ltd (1999) HL
The plaintiff, the former PM of Ireland claimed that the article published by the defendants said that the plaintiff had dishonestly misled Parliament. The defendants claimed qualified privilege.
It was held that the current state of CL does not require a new category of qualified privilege.
Depending on the circumstances, matters to be taken into account include:
Reynolds Test – Applies only to media (confirmed in Loutchansky)
- seriousness of the allegation
- nature of the information and the extent to which the subject is a matter of public concern
- source of information
- status of the information
- urgency of the matter
- did the article consist of a gist of the plaintiff’s story
- tone of the article
- circumstances of the publication
A very important aspect of this decision is the recognition that it was the duty of the news media to inform the public of matters of public interest. Previously, courts were unwilling to recognize a duty to publish to the public at large, at least in the case of allegations that still had to be formally investigated.
In Reynolds, responsibility question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly, privilege cannot arise.
In the conventional situations in which qualified privilege arises, a defendant need not have acted responsibly.
Standard of responsible journalism
In Reynolds, it was stated that newspapers and other news-media outlets would have to comply with the standard of responsible journalism if they were to rely on the defence of qualified privilege. HoL concluded in that case that the defendants had failed to meet standard, attaching most significance to their failure to give the plaintiff’s side of the story.
The test of the standard of journalism was considered in Loutchansky v Times Newspaper Ltd (No.2) [2001]-
It was held it was clearly not responsible journalism for the defendants to keep defamatory articles on their website without indicating in any way that their veracity was disputed.
Grobbelaar CA
CA concluded that the defence of qualified privilege was not applicable to what was a sensational newspaper expose unambiguously asserting the criminal guilt of its subject.
Bennick v Morris [2003]
A journalist’s failure to make further inquiries after an anonymous tip-off, or to include the claimant’s side of the story, would surely constitute irresponsible journalism where he expressly alleged the claimant to have done something wrong, but would not necessarily do so where the defamatory imputations arose only by implication.
Loutchansky v Times Newspaper Ltd (No.2) [2001]
Reynolds privilege was seen to be a departure from the orthodox foundation. The orthodox interpretation of qualified privilege to the occasion of the publication rather than the publication. Reynolds privilege attaches, if at all, to the publication itself.
Conventional qualified privilege is defeated only by proof that the defendant was actuated by malice but Reynolds privilege does not avail a defendant unless he acts in conformity with principles of journalistic responsibility.
This interpretation was endorsed in the subsequent CA case of Keams.
Keams v General Council of the Bar [2003]
The Bar Council wrote to all heads of chambers and senior clerks in the light of concerns expressed by a Bar member about claimant who, he said were seeking to instruct barristers directly stating that they were not solicitors and should not be dealt with on their standard terms of business. In fact, the claimants were solicitors.
It was assumed for the hearing that the Bar Council had made no effort to verify the information it had sent out. CA ruled that this was not fatal to the defence. The steps taken to verify the information were relevant in deciding whether a Reynolds privilege arose in respect of a media publication to the general public – but where there is an existing and established relationship - such as between the Bar Council and Bar members – which plainly required the flow of free and frank communication in both directions.
It is possible to sidestep the defence of qualified privilege by framing an action in negligent misstatement – Spring v Guardian Assurance [1994] - which held that the writer of a reference owed a duty of care to the subject of the reference.
(d) Consent
(e) Apology
(f) Offers of Amends
Defendants may be able to protect themselves by making an offer of amends under the Defamation Act 1996 s.2. This applies, inter alia, to publications in which the defendant neither knew nor had reason to know that the statements referred to the claimant or was likely to be so understood. The provision requires defendants to offer to print a correction and apology, as are agreed or determined by the court.
The effect of the provision is –
- Create a formal mechanism for the consensual resolution of defamation disputes, with provision for judicial determination of appropriate compensation in default of agreements between parties.
- Allow a defence to n ‘innocent defamer’ whose offer of amends is rejected by the person defamed.
- Defamation claimants will loose the right to compensation if they reject a valid offer of amends, unless they are able to prove that the publication was culpable in the sense that the defendant knew or had reason to know that the statement both referred to the claimant or was likely to be so understood, and was false and defamatory to the claimant.
(g) Innocent Dissemination
Defamation Act 1996 s.1
The object of this provision is to allow a defence to the merely mechanical distribution of defamatory material, if they have no reason to believe that their conduct might contribute to the publication of defamatory material. The defence applies to those, other than the ‘author, editor and commercial publisher’ of the statement.
It covers those involved only in the printing, distributing and selling of printed material, the broadcaster of live programme where there is no ‘effective control’.
s4 of the defamation Act 1952 provides a special statutory defence ion cases of ‘unintentional defamation’ can make an offer of amends. However, this fell into disuse primarily because of the lengths to which the defendant had to go in order to prove that the words were published ‘innocently’.
s2-4 1996 Act has altered ‘unintentional defamation’ defence by removing the requirement of non-negligent innocence. Although it retains the basic shape of the 1952 Act, it makes available to any person publishing material, which he did not know was false or defamatory to the claimant. Significantly, the burden of proving innocence is reversed.
Vitzelli v Mudie’s Select Library [1900]
The defendants allowed people to use a book which, unknown to them, contained a libel on the plaintiff. IN a publication taken by the defendants the publishers had circulated a notice requesting the return of copies of the offending book
HoL: The defendants had failed to establish their innocence and were found liable. They had no procedure for checking whether their books contained libels and they had overlooked the publisher’s request for the return of the book.
Freedom of Expression and Defamation
The right to freedom of expression, by virtue of HRA 98 ECHR s10 (1) provides that everyone has the right to freedom of expression. However, the Convention also recognizes countervailing interests s10 (2).
Thus, the courts have to address where to draw the line in balancing these tensions. The presumption appears to be in favour of freedom of expression. HRA 98 s12 (1) and s12(4) is actuated when such tensions appear.
In Reynolds, it was conceded that ‘the starting point is the freedom of expression…is the rule and regulation of speech is the exception requiring justification. The justification of any exception can only be justified if it is underpinned by a pressing social need’.
It was also said that ‘any curtailment must be convincingly established by a compelling countervailing consideration and that the means must be proportionate to the end sought.
The liberty to communicate is important but not misinformation. Public interest is not served from dissemination of misinformation.
It was also conceded that reputation is a matter of importance affecting the individual and his family.
The Defamation Act 1996 introduced reforms to the law.
A ‘fast track procedure’ enables the courts alone to dispose summarily of cases that are inordinately weak and provide ‘summary relieve’ for those that are inordinately strong.
However, there is a restriction on maximum compensation that can be awarded (>GBP1000). This may limit the practical impact of the fast track procedure.
However, this procedure also allows for a declaration of falsity and an order to publish an apology, which is not available to jury accessed damages.
