Lecture 5 Defamation

Defamation
Lecture 5
Aims
 Quick recap of precious lecture
 Look at the definition of defamation and expand on it
 Examine slander and libel
 Discuss examples brought by the class
 Defence to defamation charges [part 2]

Definitions
 Defamation is ‘publication of a statement which reflects on a

person’s reputation and ends to lower him in the estimation of right
thinking members of society generally or tends to make them shun
him or avoid him’
 Phiri v The programme Manager Radio, Radio Maria Zambia,
Chipata (unreported)
 The act of making untrue statements about another which damages
his/her reputation. If the defamatory statement is printed or
broadcast over the media it is libel and , if oral only it is slander.
Two types
 Libel
› Written words published to third parties or even broadcast over the media
› i.e. magazine, photos, newspaper , news reports
 Slander
› Words shouted at someone
› Gestures made
› i.e. biting your thumbs at someone, use of fingers in inappropriate manners
› Untrue/insulting language
Four logical steps
 is the statement defamatory ?
 Does it refer to the claimant?
 Has it been published?
 Do any of the defences apply?

Slander
 There are some instances where slander is actiontinable per se meaning no proof of damages is required
this is where the court feels its safe to presume damage due to the nature of the allegations
 Imputation of a criminal offence punishable by imprisonment.
 The has to be an imputation that a criminal offence has been committed.
 Webb v Beavan (1883) where it was stated that “I will lock you up …. I know enough to put you there’ this implied
that a criminal offence had been committed and therefore was actionable per se
 2. Imputation of contagious disease
 3. Imputation of unchastity or adultery by a female
 4. Imputation of professional unfitness or incompetence

Objective test
 Judge determine as a matter of law if statements are capable of

being defamatory
 Capital and Counties Bank ltd v Henty (1882)
 Objective test
Is statement defamatory
 Statement is defamatory if it harms a persons reputation
 Difficult to assess
 Classic definition is in Sim v Stretch [1936]
 “tend to lower the plaintiff in the estimation of right thinking
members of society generally”
 extended in Youssoupoff v MGM Pictures ltd (1934) to
include circumstances where the claimant is shunned or avoided
Is the statement defamatory
 Therefore the question is whether your reputation has been harmed

in the eyes of right thinking member
 Standard is that of a reasonable person and its objective
 The reasonable person is said to be one who is fair minded, neither
unduly suspicious or unduly naïve ……
 Lewis v Daily Telegraph [1964]
Innuendo
 Implied attack on a persons reputation
 Again test is objective
 Two types of innuendo
 False and true
 True is one where attack is hidden in the absence of special fact and
circumstances which the claimant must show are known by some of
the people to whom the statement is published
 False is one which a reasonable person guided by general knowledge
would infer from the natural and ordinary meaning of the words
Innuendo
 A true innuendo see Tolley v J.S Fry & Sons Ltd [1931]
 Amateur golfer a caricature of him appeared in an advert for frys chocolate without
his knowledge
 This itself not defamatory
 However he argued that those who knew him as an amateur golfer would see him
as accepting money for the advert something that was contrary to acceptable
amateur conduct in golf
 House of lord held that the advert was capable of being caught out by the meaning
on innuendo
 Therefore people who knew tolley might think less of him and his reputation
would be harmed
Innuendo
 See Cassidy v Daily Mirror Newspapers Ltd [1929] as well for true innuendo
 Lewis v Daily Telegraph Ltd. [1964] false innuendo
 Paragraph printed about a company and its chairman Mr Lewis
 Fraud squad was investigating them
 Claim for defamation on literal meaning failed
 Innuendo was raised and claimed but courts rejected this
 Stating the test was objective and the was no was no way a reasonable person would
assume that a police investigation indicated that Lewis and the company were guilty
of such conduct
 Even if they could possibly infer from the paragraph that Lewis and the company
might be suspected of fraud
Does the statement refer to the claimant
 If mentioned by name its simple
 Otherwise it’s a question of the view of the reasonable person
 Would that reasonable person be able to tell that they refer to the claimant?
 Morgan v Oldham Press Ltd [1971]
 Newspaper article in The Sun reported a girl had been kidnapped by a dog-doping gang this was
incorrect and the girl had be staying with Morgan at the time .
 Claimants produced witnesses who stated that having read the article they assumed he was part of
the gang as they had seen the two together
 Majority of the house of lord held that on the fact there was sufficient evidence to find that the
statement referred to him. Was not necessary to find a specific pointer in there article
 Meaning of statement has to be judged at the time of publication as a rule however the courts wont
allow it to be used as a cover up for defamatory statement made but the claimant is identified later
Does the statement refer to the claimant
 Hayward v Thompson [1982]

 Court of appeal admitted evidence in an article that was printed later
identifying the plaintiff where as the first article referred to him as a
wealthy man and on this basis both articles were found to be
defamatory
 Its irrelevant is whether a defendant intends to refer to the claimant as
long as reasonable persons find the statement defamatory and refer to
the claimant then the defendant who publishes them will be liable
 See Hulton & Co. V Jones [1910]
Group defamation
 Recommend reading will cover this .

 See 2 page attachment with email
Has the statement been published to a third
party
 This is a vital requirement not enough that the defendant send a letter to the
claimant making accusations,
 Its only when the letter is seen by a third party or published that the
claimant's reputation will be at stake or harmed
 Publication can be to an individual or mass public so when we say publish
we are not referring to press
 Its just means that the libel or slander has come to a third party
 This requirement is obviously met by printing an article in a book or paper
or shouting a remark in a lecture hall
 Publication requires word to be intelligent bad reach the third party
Has the statement been published to a third
party
 Problems arise when one claims they did not intend to publish the
words
 A writes a defamatory letter to B and B's wife see the letter
 Publication?
 Reasonable foresight is required and in
 Theaker v Richardson [1962] the same scenario above happened
and the court held it was foreseeable the husband would open the
letter in a brown envelope
 Huth v Huth said no for a butler
Who can sue
 Any living person

 Companies
 Government and political parties can not however
Defences
 Three main types (list is not exhausted)

 Justification
 Fair comment
 Privilege
 Recommended reading for privilege will follow
 Defences protect in two ways
 One where person has told The truth and secondly where word
published are in the publics interest
Justification
 Valid defence to show world published are true
 Claimant does not have to show that the statement is untrue the burden if on
defendants to show the statement were true and has to justify this on a balance of
probabilities
 Wakley v Cooke (1849)
 Claimant has not right to complain about true statements they merely bring him to
the level he should be
M’Pherson v Daniels (1829)
 Words need only be substantially true they don‘t have to be 100 spot on thereby
reducing the burden on the defendant a little
 See Alexander v North Eastern Railway co (1865)
Fair comment
 Defendant does not have to show that statement were true just that
he has exercised the right to criticize the claimant
 In application the following have to be considered
 It must be in the public interest
 Must be comment (on a given set of facts)
 Must be fair and honest

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Defamation

 Look at the definition of defamation and expand on it

 Examine slander and libel

 Discuss examples brought by the class

 Defence to defamation charges [part 2]

 Defamation is ‘publication of a statement which reflects on a

 is the statement defamatory ?

 Does it refer to the claimant?

 Has it been published?

 Do any of the defences apply?

 The has to be an imputation that a criminal offence has been committed.

 2. Imputation of contagious disease

 3. Imputation of unchastity or adultery by a female

 4. Imputation of professional unfitness or incompetence

 Judge determine as a matter of law if statements are capable of

 Capital and Counties Bank ltd v Henty (1882)

 Therefore the question is whether your reputation has been harmed

 Hayward v Thompson [1982]

 Recommend reading will cover this .

 Any living person

 Three main types (list is not exhausted)

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